Battenberg v The Union Club

[2004] NSWADT 285

CITATION:	Battenberg v The Union Club [2004] NSWADT 285
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Andrew Battenberg RESPONDENT The Union Club
FILE NUMBER:	011069
HEARING DATES:	09-10/12/02, 28/04/03,26-27/02/04
SUBMISSIONS CLOSED:	07/12/2004
DATE OF DECISION:	12/09/2004
BEFORE:	Britton A - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Bolt M - Non Judicial Member
APPLICATION:	Disability Discrimination - Registered Club - Homosexual Discrimination - Registered Club - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Battenberg v The Union Club (No.2) [2003] NSWADT 187 Bonella v Wollongong City Council [2001] NSWADT 194 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Martin v McKensey (No. 2) [2003] NSWADT 126 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44
REPRESENTATION:	APPLICANT J Dupree, barrister RESPONDENT K Eastman, barrister
ORDERS:	The complaint of discrimination on the grounds of disability is dismissed; The complaint of discrimination on the grounds of perceived homosexuality is dismissed; The complaint of victimisation is dismissed.

1 The Applicant, Andrew Battenberg, was expelled from the Union Club in August 2001. He makes three complaints against the Club. The first is that he was discriminated against by the Club on the ground of his perceived homosexuality. The second is that he was discriminated against on the grounds of disability. The third is that he was victimised, that is expelled, from the Club because he had made a complaint to the Anti-Discrimination Board.

2 On 14 August 2003 we refused a dismissal application brought by the respondent Club under s 111(1) of the Anti-Discrimination Act 1977 ("the Act"): Battenberg v The Union Club (No.2) [2003] NSWADT 187. In that decision we ruled on the scope of the Applicant’s complaints and determined that the complaints of discrimination were restricted to three incidents which are set out below at para. [5].

Discrimination Complaint

What the complainant must prove

3 To succeed in his complaints of discrimination the Applicant must, on the balance of probabilities, establish, first, that throughout the period covered by the complaint i.e. 24 April 2001 to 18 July 2001:

(i) he was thought to be a homosexual by the respondent; and

(ii) he had a disability.

(It may be that he can succeed in proving one of these matters and not the other. That is a matter for the evidence. The two allegations do not necessarily stand or fall together.)

4 Second, he must prove that he was subjected to a “detriment” within the meaning of ss 49O(2)(c) and/or 49ZR(2)(c) of the Act. More specifically, the Applicant must establish that the following incidents either separately, or in combination, constituted a detriment for the purpose of ss 49O(2)(c) and/or 49ZR(2)(c) of the Act:

- the conduct of Club President, Michael Crouch at the meetings of 24 April 2001;

- the request that his employee, Ian Humby, leave the Club;

- the directive to staff that he not be addressed as Lord Battenberg.

5 In Bonella v Wollongong City Council [2001] NSWADT 194 at para. [50] it was held that “detriment” should be given its common meaning of “loss, damage or injury”. The detriment suffered must be “real and not trivial” and “whether something constitutes a detriment must be determined objectively and not subjectively”: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 [at 41].

6 Third, the Applicant must show that, in the same or similar circumstances, a Club member who did not suffer from the disability/ies he did and/or who was not thought to be homosexual would have been treated more favourably (“differential treatment”).

7 Finally, he must prove that one of the reasons for that less favourable treatment was, respectively, his disability or perceived homosexuality (“causation”).

8 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5, the Appeal Panel said that in a case of direct discrimination differential treatment should be determined before causation as “if there is no relevant differential treatment it is unnecessary to consider the issue of causation” at [45]. The recent decisions of Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63]-[65] and Martin v McKensey (No. 2) [2003] NSWADT 126 at [46] questioned the practical difficulties of adopting that approach where the assessment of differential treatment relies on a hypothetical comparator. In this case there is no evidence of an actual comparator and therefore, for the reasons advanced in Dutt and Martin, we will first consider causation.

Preliminary issues

9 We dispose of two preliminary issues before proceeding to a consideration of the evidence namely, whether the applicant had a disability for the purpose of the Act and the respondent’s failure to call Mr Foulkes.

Disability

10 The Applicant claims he suffered a Post-Traumatic Stress Disorder (PTSD). The Amended Points of Claim allege that he suffered also from “a rare form of neurofibromatosis; bleeding disorder; vertigo; post-traumatic stress syndrome; essential tremor”.

11 He gave evidence that, following an assault at the Club in June 2000, he had been receiving treatment for stress and suffered from a tremor. Psychiatrist, Robert McMurdo, in a report dated 14 June 2001, diagnosed a PTSD and noted a marked tremor in his hands. He recorded that following the assault the Applicant claimed he suffered panic attacks; trembling; feeling frightened; feelings of insecurity and vulnerability.

12 We do not accept the Respondent’s argument that there is no medical evidence that the Applicant suffered a PTSD in the period before Dr McMurdo’s assessment. Dr McMurdo’s opinion was that he had most probably suffered from the condition since the time of the assault.

13 Dr McMurdo did not address whether the Applicant’s tremor was merely a symptom of his PTSD or a condition in its own right. Given the Act’s broad definition of “disability” which includes “the malfunction …of a part of a person’s body” it seems to us that whatever its cause, the tremor is caught by this definition.

14 The Respondent asserts that the Applicant has not established that it had knowledge of his alleged disabilities at the material time and accordingly his claim of disability discrimination must fail. Whether the Respondent, through its officers or employees, had such knowledge is a matter for the evidence. However, even if it is established that it did not have such knowledge that will only be relevant to causation. As a first step in a complaint of disability discrimination, the Applicant need only establish that he had the “relevant characteristic”, that is, a disability (see s 49A paragraph (a)).

15 We find that throughout the period covered by the first complaint, the Applicant had two disabilities, namely PTSD and a tremor of his hands. There is insufficient evidence, however, to support his claim that throughout this period he also suffered the other conditions listed in the Amended Points of Claim.

Failure to call Mr Foulkes

16 The Respondent had initially filed a statement by Michael Foulkes, the Club’s Operation Manager. At the commencement of its case, Counsel for the Respondent, Ms Eastman, announced that his evidence would not be relied on. On the final day of hearing, after the close of the Respondent’s case, the Applicant applied for leave to call Mr Foulkes. That application was refused. Our reasons for that decision follow.

17 Counsel for the applicant, Mr Dupree, contended that Mr Foulkes’ evidence would rebut that given by the Respondent’s witnesses. He submitted that leave ought be granted for the following reasons: first, the interests of justice demanded that the Applicant be given the opportunity to answer a number of unspecified matters raised in the Respondent’s case; second, the Applicant had been misled by the conduct of the Respondent that it would call Mr Foulkes as his statement had been filed; third, in the discharge of its statutory duty to properly inform itself of all matters in issue, the Tribunal ought grant the application.

18 Ms Eastman explained that the Respondent decided not to call Mr Foulkes as it was apparent from the s 111(1) ruling that he was not a relevant witness to the alleged contraventions identified by the Tribunal, as relevant to its inquiry. Ms Eastman disputed that the Applicant had been misled and asserted that a party is under no obligation to call all persons whose statements it has filed. In any event, it had been open to the Applicant’s representatives to contact him and obtain a statement.

19 The Tribunal has broad power to determine its own procedure: s 73(1) of the Administrative Decisions Tribunal Act 1997 (‘Tribunal Act’). It may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice (s 73(2)); it is to ensure that all relevant material is disclosed (s 73(5)(b)) and to act as quickly as practicable (s 73(5)(a)). It is uncontroversial that the Tribunal has power to grant the application sought. The issue is whether the circumstances warrant the exercise of that discretion.

20 There will be circumstances where, in compliance with the directives set out in s 73, the Tribunal should grant a last minute application of this kind. These might include where fresh and material evidence becomes available where it could not reasonably have been known to the parties at the time evidence was filed or where a self-represented party failed to appreciate the consequences of failure to comply with the directions timetable.

21 The Applicant has been represented throughout the course of the proceedings. The matter proceeded by way of directions, which gave the Applicant an opportunity to file evidence in reply. His representatives elected not to do. They should have been aware that there was no guarantee that the Respondent would ultimately rely on any of its filed evidence and that it was not obliged to. This was especially the case given that the Tribunal’s s 111(1) ruling significantly narrowed the matters to be determined.

22 In our view, the reason advanced for this application are somewhat inadequate. We have been told that Mr Foulkes would assist us in our inquiry but we have not been taken to any specific areas he might be asked to address. We are also told he would rebut the evidence of the Respondent’s witnesses, yet it is not clear on what basis Counsel for the Applicant formed that view. At best it seems that he has a hunch that Mr Foulkes’ evidence might assist the Applicant’s case.

23 The Tribunal’s broad inquisitorial powers do not impose upon it an obligation to inquire into every matter a party asserts might be relevant to the facts in issue. The duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present its case. That duty does not extend to acceding to every application for evidence to be admitted out of time, which a party believes might assist the Tribunal’s knowledge of its case. One of the directives in s 73 is that the Tribunal act as quickly as possible. The practical effect of granting this application would have been to require a further hearing day to be set aside.

24 For these reasons the application was not granted.

25 In written submissions, Mr Dupree went on to submit that an inference should be drawn that Mr Foulkes’ evidence would not assist the Respondent’s case. The Respondent has provided an explanation for not calling Mr Foulkes, which on its face is plausible. It is common ground that Mr Foulkes was not an eyewitness to any of the three incidents, which form the basis of the Applicant’s complaints of discrimination. It is to be remembered that “The rule [in Jones v Dunkel] cannot be employed to fill gaps in the evidence, or turn conjecture and suspicion into evidence.” (Byrne, D QC & Heydon JD, Cross on Evidence, Butterworths, Sydney, 1986, p 36) That is, the Applicant’s case, if it lacks substance itself, cannot be made out by the absence of evidence on the other side. For these reasons, we decline to draw an inference from the Respondent’s decision not to rely on the evidence of Mr Foukles.

Background to the complaints

26 Much of the evidence in this matter is agreed or uncontested. The Respondent is a registered Club under the Registered Clubs Act 1976 (NSW). Its rules are set out in its Articles of Association (“the Constitution”).

The Applicant joins the Club

27 The Applicant joined the Club in 1992. The Club offers members the use of dining facilities and accommodation at its Sydney premises in Bent Street. The cost of these services is payable on issue of a monthly account (“the house account”). In addition, members pay an annual subscription fee.

28 The Applicant rented a suite at the Club from June 2000 to 16 August 2001.

The Applicant behind on his account

29 On 5 December 2000, then Club Secretary, Dan Goodall, wrote to the Applicant advising that his house account was overdue by four months, that cheques issued by him had not been honoured and that his membership would cease from 1 December 2000. He requested the Applicant to vacate his room. Payment was made on the same day and the Applicant’s membership reinstated.

30 Mr Goodall sent a letter to the Applicant in the New Year advising that he had learnt that a direct debit for an amount of $12,680.96, had not been honoured. He wrote, “It disturbs me to have to write to you once again pointing out that you have reached the point again of being removed from the Club”. He went on to state that the matter would be handed over to the new Secretary, Paul Skokkreeff “who may not be so tolerant as I have been”. Mr Spokkreeff took over from Mr Goodall in January 2001.

31 In early April 2001, an American Express credit payment authorised by the applicant for the sum of $5515 was declined. The Applicant asserts that this happened because of an administrative error on the Club’s part. This is disputed.

32 It is common ground that on 9 April 2001 a meeting was held to discuss this matter. The Applicant, Mr Spokkreeff, Mr Foulkes, and Mr Humby attended that meeting. At that meeting the Applicant asserted that there must have been an error and immediately paid the balance of his account which, by then, had increased to $11,154.

33 Despite this, Mr Spokkreeff demanded that the Applicant leave the Club until the AMEX incident had been investigated and determined by the Club’s Committee. He complied under protest, returning about two weeks later.

34 On 18 April 2001, the Committee passed a by-law that provided that when a member failed to pay his account on three or more occasions, the Secretary may require him to keep his account in credit. The minutes of General Committee of the Club record that later that day it resolved that the by-law be invoked against the Applicant and that he be required to keep his account $6000 in credit. The Applicant asserts that this rule was targeted at him and referred to it in these proceedings as the “Battenberg amendment”. This is denied.

35 On the evening of 24 April 2001, the Applicant was summoned to two meetings with Mr Crouch and asked to resign. He refused. Some of what was said in those meetings is in dispute. Later that evening, at Mr Crouch’s request, Mr Humby, an employee of the Applicant also met with Mr Crouch.

36 The Respondent had an arrangement with the Commonwealth Club which extended reciprocal membership to their members. The secretary of that Club wrote to Mr Spokkreeff, in March 2001, advising that the Applicant owed $260, dating back to April 2000 and, despite repeated requests, payment had not been made.

The rules about late payment

37 Rule 36(a) of the Constitution provides that if a member fails to pay his house account within two months of the date that the account became payable, interest at the rate of 10% (or such lesser rate as the house committee may determine) becomes payable on amounts outstanding. Rule 36(b) provides that where members fail to pay their house accounts within three months after the day on which the accounts became payable, they cease to be entitled to use the Club or exercise any rights or privileges of the Club until all outstanding accounts (and any interest) have been paid. Where the account remains unpaid for four months, the member ceases to be a member of the Club unless the house committee, on the member’s application, determines that special circumstances exist and grants an extension: Rule 36(c).

The Applicant’s (annulled) bankruptcy

38 The Applicant was declared bankrupt on 19 May 1997. The bankruptcy was annulled in March 2000. (When the Club first became aware of this is in issue.)

39 The Applicant’s solicitors wrote to the Club in April 2001 and advised that the annulment, in effect, voided the bankruptcy. On 1 July 2001 the Club instructed its solicitors to seek Senior Counsel’s advice on whether this advice was in fact correct. Mr Spokkreeff claims that he received this advice in writing on 13 August after meeting with Senior Counsel on 8 August 2001. By letter dated 16 August 2001, Mr Spokkreeff notified the Applicant that the Club had been advised that, through the operation of rule 16(b) of the Constitution, he had ceased to be a member from the date he was declared bankrupt, i.e. 19 May 1997. Rule 16 (c) provides that a member shall cease to be a member if he becomes bankrupt. The Club refused to provide a copy of that advice in these proceedings.

The Applicant changes his name

40 When the Applicant joined the Club in 1992 he was known as “Andrew Lee”. By letter dated 1 November 2000, his solicitors advised the Club that he would now be known as “Lord Andrew Charles Robert Edward Albert Battenberg, Baron of Craigstown”.

41 In May 2001, Mr Spokkreeff raised with the Applicant the basis of his claim to a title. Shortly after this, the Applicant’s solicitors wrote providing particulars. They asserted that the Applicant, who had originally been known as Lee, had altered his surname to Battenberg “due to a recent legal agreement with certain families”. It was explained that on reaching the age of 21, under a deed of settlement, that his natural family [the Applicant had been adopted] conferred upon him a title and a life interest in that title. The letter further stated that “the title follows from feudal peerage and not parliamentary peerage: the latter are recorded in Debretts”. The Club was invited to inspect the deed of settlement, which was said to be held in London by the solicitor’s acting for the Applicant’s family, but did not do so.

42 Mr Spokkreeff subsequently made an enquiry with the College of Arms in the UK concerning the Applicant’s claim to a title. Mr D.V. White, ‘Rouge Croix Pursuivant’ for the College, replied that “Lord Andrew Charles Robert Edward Albert Battenberg is not a peer and not the holder of a courtesy title”. He further explained that the title “Baron of Craigstown” could be a Scottish feudal barony, but would not entitle him to style himself “Lord anything”.

43 By letter dated 13 July 2001, the Applicant’s solicitors provided further details about the disputed title asserting that “there is no doubt that out client is entitled to be called Lord Andrew Battenberg of Craigstown….this can be verified through the Manorial Society of Great Britain.” The Applicant’s solicitors then informed the Club that it was “confused in relation to the system of titles applicable in Great Britain…” and went on to explain that the titles listed in Debretts and Burke’s Peerages recorded only parliamentary peerages and baronets. They asserted (on the basis of what authority is unclear) that “there are, of course, many manorial titles entitling the holder to the title of ‘Lord’”.

44 According to the Applicant’s solicitors, the Applicant’s title stems from Letters Patent issued by King Charles I on 16 January 1640 and that many such titles were created in this fashion although they are not recorded in Debretts. The solicitors asserted that “a subsequent indenture dated 19 June 1734 confirmed the title now held by our client” and that a “Certificate of Identity” dated 14 June 1993, issued by the Governing Council of the Manorial Society of Great Britain, confirmed that the Applicant held the title of “Lord of Craigstown” in Co.Leitrim, Ireland.

45 By memo dated 15 June 2001, Mr Spokkreeff directed staff not to address the Applicant as “Lord Andrew”. Staff complied with that direction.

46 The Applicant had been addressed in the Club as “Lord Battenberg” for a significant (but unspecified) period before this directive. Monthly accounts from December 1999 were issued to him in the name of “Lord Andrew Battenberg, Baron of Craigstown”. The Applicant led evidence that he was also addressed by some organisations and people including, apparently the Govenor of NSW as Lord Andrew (or Battenberg).

47 In attempting to better understand the Applicant’s case concerning his use of the title “Lord Andrew”, we looked at websites for Burke’s Peerage and the Manorial Society of Great Britain. The sites contained what appeared to us to be useful information to which we had not been referred by the parties. As a matter of fairness to the parties, we outlined to them what we had gleaned and invited them to make supplementary submissions on that material. The information that we regarded as relevant is outlined in the following paragraphs. We will deal with the submissions of the parties and explain the relevance of the information below.

48 Burke’s Peerage is an acknowledged authoritative text on the question of peerages, titles and the etiquette associated with them. According to Burke’s, British titles come in various grades.

The Peerage

49 There are five grades of the Peerage: Duke, Marquess, Earl, Viscount, and Baron. These titles can only be inherited, normally by the eldest son, or be bestowed upon an individual by the state. It is not possible to buy any of these titles.

Life Peerage

These have been issued since 1958 and cannot be passed down the family line.

Baronet

Entitling the individual to use the prefix Sir, these are hereditary titles and cannot be bought.

Knighthood

A Knighthood is awarded by the state only and is not hereditary. It is not possible to buy a knighthood.

Scottish Feudal Baron

A Scottish Feudal Barony can be bought through an agent such as Barony Titles - The owner is entitled to use the title '(name) Baron of (placename)'.

English and Irish Feudal Baronies

English Feudal Baronies were abolished in England in 1660 by Act of Parliament and a similar Act was passed in Ireland two years later.

Lord of the Manor

A Lord of the Manor title can be bought through the Manorial Society of Great Britain, and entitles the owner to the title '(name), Lord of the Manor of (place name)'. The owner of the title is not allowed to use the title of 'Lord (name or placename)'. The Manorial Society of Great Britain is a commercial organisation, not an official body. Though some manorial titles do have a historical context, they are not included in Burke’s Peerage.

50 The Manorial Society of Great Britain, according to its website, was founded in 1906. It has a membership of approximately 1,700 Lords of the Manor and Feudal Barons, Peers and Historians. Its stated aims are:

To promote the study of English history and traditions, especially the Monarchy and British parliamentary institutions.

To promote the preservation of manorial records

To promote awareness of the Lord's privileges and responsibilities in the local community

To promote comradeship among men and women of like-mind.

51 Through the Manorial Society, feudal baronies and lordships of manors may be purchased by auction. A 130-page, coloured catalogue of such baronies and manorial lordships is available from the Society for £20.00 (approx $A50).

52 The Manorial Society has certain rules concerning use of titles by Lords and Ladies of the Manor:

Lords or Ladies of the Manor may style themselves thus: "The Lord/Lady of the Manor of" or "The Lord/Lady of". The preposition "of" must be retained to differentiate from a title of peerage. A letter of confirmation may be obtained from the Society for those Members who wish to use their Manorial style inside passports, driving licences, and other official documentation.

53 On the morning of 15 June 2000, Mr Foulkes, who had been on duty at the Club overnight, reported to Mr Goodall that the Applicant had made a report to police that he had been assaulted by a member of a reciprocal Club whom he had invited to his room. According to Mr Goodall, Mr Foulkes had told him that it might have been a sexual assault as the two men were found naked in the Applicant’s room. Mr Goodall claims that when he reported the incident to Mr Crouch he was a “bit upset” that the police had been called. According to Mr Crouch, he could not recall anyone saying to him that the Applicant was or was suspected to be homosexual but recalled that after the alleged assault Mr Goodall might have used the words “sexual preference”. His evidence was that he thought it inappropriate that the police had been brought in as the Club was like a home and these things were best “kept private”.

Mr Humby

54 Thoughout the period covered by the complaints, Mr Humby had been employed by the Applicant as his bodyguard / security man. Following the June 2000 assault (possibly earlier), he had accompanied the Applicant at all times while he was at the Club and shared his room when he stayed overnight. The Applicant asserted that this was necessary on account of his medical condition. Mr Goodall knew of those conditions and had no objection to Mr Humby’s continued presence in the Club on that basis.

55 At the meeting of 24 April 2001, Mr Crouch questioned Mr Humby’s continued attendance at the Club and argued that it was inappropriate for an employee of a member to use the Club’s services and facilities of the Club as if he were a member himself. Messrs Spokkreeff and Crouch subsequently raised this on a number of occasions with the Applicant.

The Board advises respondent of discrimination complaint

56 The Anti-Discrimination Board notified the Respondent in writing of the Applicant’s complaint on 17 August 2001. Ms Deb Richards of the Board advised Mr Spokkreeff by phone on 8 August 2001.

Disputed evidence

57 Before proceeding to consider whether the alleged incidents constitute discrimination, a number of preliminary findings need to be made:

- why the Applicant’s Amex authorisation was declined

- whether the Applicant failed to pay his accounts in a timely fashion throughout the period up to April 2001

- what was said by Mr Crouch in the three meetings on 24 April 2001.

58 This evidence was relevant to the question whether the Applicant was, at the relevant time, financial at the Club. It is also relevant more generally to the question of the credit and credibility of witnesses.

59 The Respondent’s evidence is that, on or about 3 April 2001, the Applicant signed an AMEX charge voucher for the sum of $5515.26 and despite repeated attempts by the Club’s Financial Controller, Ms Lisa Ford, to process that authorisation, payment was declined. Mr Spokkreeff testified that Ms Ford had told him that she had tried to contact the Applicant without success and she eventually spoke to his accountant, Mr Reynolds, who confirmed that the details of the card that she had attempted to process had been correct. Mr Reynolds authorised payment by phone using a different card number and expiry date. AMEX authorised that payment.

60 The Applicant claims that payment was declined because Ms Ford entered the wrong expiry date of his credit card on the payment voucher. He denies going in to the office to sign the voucher and claims Ms Ford must have used a “standing authorisation”, he had previously provided the Club. He claims that payment was successfully processed after Mr Reynolds supplied the correct expiry date to Ms Ford.

61 It is argued for the Applicant that the Tribunal ought to draw an adverse inference from the Respondent’s failure to call Ms Ford. As will be recalled, the Respondent elected to rely on Mr Spokkreeff’s evidence of what he claimed Ms Ford had reported to him about this incident.

62 The documentary evidence stands at odds with the Applicant’s claim that the AMEX authorisation for $5515.26 in April 2001 was declined because of an administrative error on the Respondent’s part. The payment voucher initially used by Ms Ford (Exhibit 33 Attachment G) did not have the details of the card entered by hand, as the Applicant asserts, but by means of an imprint taken from a credit card under which his signature appeared. Notably as Exhibit 33, Attachment H makes it clear that payment was eventually processed by telephone authority given by Mr Reynolds, using his credit card, not that of the Applicant.

63 A Jones v Dunkel submission might have carried some weight if there had been some uncertainty in relation to the documentary record, that could only have been cleared up by calling Ms Ford, and the Club had declined to call her or had offered no reasonable explanation for failing to do so. Here, however, the opposite applies: the documentary record clearly contradicts the Applicant’s evidence. There is no necessity for a party to call every witness to a transaction. If a Jones v Dunkel inference is to be drawn it might more easily be drawn against the Applicant who failed to call Mr Reynolds to give evidence and has provided no reason for his failure to do so. As there has been no such submission from the Club, and we are satisfied that the documentary evidence sufficiently and clearly demonstrates the transaction, we decline to draw such an inference against the Applicant.

64 We are satisfied that the AMEX authorisation was not declined because of an administrative error on the Respondent’s part.

Payment of accounts

65 The Club asserts that the principal reason the Applicant was asked to resign was that he was chronically late in paying his account and that, as a result, he was constantly in debt to a significant degree to the Club (which, in effect, provided him an interest-free loan for the outstanding amount). The Applicant denies that this is the true ground for his expulsion and denies the allegations of his consistent default.

66 The Applicant’s House Accounts for the period November 2000 to April 2001 were tendered in these proceedings and record that payment had been overdue, for varying amounts, throughout that period. They also record that two cheques for $9339.35 and $6971.67, issued in November 2001, had been dishonoured. The January 2001 account contains an entry “direct debit return $12,680.90”.

67 In cross-examination, the Applicant disputed that his account history over this period indicated he had been behind in his accounts but conceded that sometimes payment was delayed because his account had to be “settled in London”.

68 Mr Goodall’s evidence was that while he had been Club Secretary he had not been concerned that the Applicant might be unable to pay his account but was troubled that payment was routinely late. He claimed that not only had he written to the Applicant on this subject but on a number of occasions had raised it with him in discussions.

69 According to Mr Spokkreeff, shortly after taking over as secretary he met with the Applicant and advised him that late payment would no longer be tolerated and that the Applicant had undertaken that things would improve. The Applicant denies that Mr Spokkreeff raised this with him.

70 Mr Spokkreeff claimed that on 9 April 2001 he had asked the Applicant whether he was a bankrupt. He said that the Applicant had replied that he was not, that the bankruptcy had been annulled and invited him to check with his lawyers.

71 The Applicant disputes that payment was outstanding throughout the period November 2000 to April 2001. This claim is at odds with the Respondent’s business records. The Applicant has provided no explanation for this inconsistency. His house accounts for this period record that not only was payment routinely late but that on three separate occasions payment was not honoured. Two cheques issued by the Applicant totalling $16,000 were dishonoured and a debit authority for $6077 was returned.

72 Mr Goodall was apparently more accommodating towards the Applicant’s tardiness than his successor. However, the Applicant’s claim that he had an “understanding” with Mr Goodall as payment had to be cleared “in London” is unsupported and contrary to the evidence of Mr Goodall. Even if Mr Goodall was more “understanding” of the Applicant’s financial issues than Mr Spokkreeff, it is implausible to suggest that he would have been so understanding as to let the Applicant run up thousands of dollars worth of debt without murmur, especially when, on a number of occasions, the Applicant’s cheques “bounced”. No explanation has been provided by the Applicant why payments had to be cleared in London on some occasions but on other occasions Mr Reynolds, his accountant in Australia, could deal with them. No explanation has been provided as to why, if indeed there was some necessity for someone in London to clear payments, in an age of electronic transfers of funds, this could not be done more quickly than was the case. For these reasons, we prefer Mr Goodall’s evidence to that of the Applicant.

73 The Applicant’s evidence in relation to his payment history raises concerns as to his credit. His account of the Amex transaction in our view was unreliable. His evidence concerning his overdue account payments was frequently vague and prevaricatory. The very fact that he presented cheques which were several times dishonoured raises the question of his reliability, not just in his personal affairs but in the giving of his evidence. It is reasonable to assume that people may occasionally present cheques which “bounce” because they have inadvertently overlooked a shortfall in their accounts but to do so on a regular basis looks, at best, reckless. This added to the impression that the Applicant was an undependable witness, whereas the Club was able to present clear, apparently highly reliable evidence based on business records. The cumulative effect was that the Applicant presented as an unreliable witness whose evidence could not be accepted except when not disputed or when independently corroborated.

74 In summary, we find that in the period November 2000 to April 2001 the Applicant’s house account was outstanding for varying periods. On four occasions payment was not honoured. Before 21 April 2001, Mr Goodall and Mr Spokkreeff had each raised this issue with the Applicant on a number of occasions.

The events of 24 April 2001

75 On 24 April 2001, the Applicant was summoned to two meetings by Mr Crouch. He claims that at the first meeting, Mr Crouch demanded his resignation; questioned his parentage; commented on his nervous tremor; asked him what “he got up to with Mr Humby”; told him he was not a fit and proper person to belong to the Club; said he did not approve of his sexuality and asserted he was not entitled to use the name ‘Battenberg’. His account of that meeting is set out in full in Battenberg (No.2) at par. [57]. After that meeting he was distraught, saw Past President Davidson and told him what had happened. He claimed that a couple of days later he made notes of that meeting. Those notes were tendered in evidence (Exhibit R 14) and took the form of an undated handwritten fax to “Joe”. In cross-examination, the Applicant identified “Joe” as Joe Rossello the solicitor who acted for him in relation to the 2000 assault and the discrimination complaint.

76 Mr Crouch gave a very different account of that meeting and claims that the only matters discussed were the basis of the Applicant’s asserted title and Mr Humby. He claimed that he did not ask for the Applicant’s resignation until the second meeting. He denied raising the issue of the Applicant’s sexuality or his alleged nervous tremor, which he claimed he had not observed.

77 According to Mr Humby, when he saw the Applicant after the first meeting he appeared to be very upset. He said the Applicant told him that Mr Crouch had asked for his resignation.

78 At Mr Crouch’s request, he and Mr Humby then met alone. According to Mr Humby, Mr Crouch questioned him about the terms of his employment and also asked about his “personal circumstances…after all you do share a room with Mr Lee, are you married?” He responded “I’m very much heterosexual and as you know I am very much here for security reasons”. It is common ground that Mr Crouch also said “You put yourself under a cloud sharing a room with Mr Battenberg” and told Mr Humby that he was uncomfortable with the fact that he used the Club while not a member.

79 The only material difference in the respective accounts given by Messrs Crouch and Humby is Mr Humby’s claim that he was questioned at some length about the Applicant’s history and relationship with Prince Phillip.

80 According to Mr Crouch, shortly after that meeting he telephoned Buckingham Palace and spoke to Sir Brian Massey who said, “There are no living Battenbergs. I've heard of the claims of this fellow before, and I know of your Club. I would kick the bounder down the steps, if I were you.”

81 Mr Crouch claimed that after this conversation he had decided the best way to deal with “the problem” was to ask for the Applicant’s resignation, which he did at the second meeting.

82 His evidence is that at that meeting he presented the Applicant with a written resignation, which the Applicant refused to sign. The meeting ended with the parties agreeing to stand the matter over until after the Applicant’s guests had left. According to Mr Crouch it was agreed that they would meet again on Thursday, April 26. The Applicant said it was the following Monday, April 29. In the scheme of things, this inconsistency is insubstantial. While Mr Crouch and the Applicant gave very different accounts of the tone of the second meeting, their evidence as to what was said is broadly consistent.

Findings

83 Much of the evidence about the 24 April meetings is not in dispute. The only significant discrepancy lies in the respective accounts of the first meeting given by the applicant and Mr Crouch.

84 It is submitted for the Applicant that his account ought to be preferred as it is consistent with his contemporaneous notes and the complaint evidence given by Mr Humby. On his own account, those notes were not prepared until after his complaint had been referred to the Tribunal by the Board. That referral was made about six months after his meeting with Mr Crouch. This chronology does not support the claim that the notes were contemporaneous.

85 The Applicant’s account that he had been asked to resign at the first meeting is supported by the complaint evidence of Mr Humby. Mr Humby’s evidence that the Applicant told him he had been asked to resign, of itself, does not establish that this occurred. While Mr Crouch might have asked him to resign, it is also possible that resignation was not mentioned at this point but that the Applicant correctly perceived that this was on the cards. After all he had just been summoned to a meeting with the President and this was not his first run-in with the Club hierarchy. A month earlier he had been forced to vacate the Club over the AMEX incident and even the patient Mr Goodall had put him on notice that he was on the verge of being thrown out. In an environment where, in the past, it had apparently been considered indelicate to raise the matter of an unpaid bill, Mr Crouch’s direct questioning would have been likely to put the Applicant on edge.

86 The fact that an alleged assault, possibly of a homosexual nature, had taken place in the Club in June 2000 and that the evidence shows that Mr Crouch had been “a bit upset” about the police being brought in to investigate suggests that Mr Crouch probably formed the view at that time that the Applicant may have been homosexual. His remark to Mr Humby concerning there being a suggestion of homosexuality in two adult men sharing a bedroom bolsters the impression that Mr Crouch suspected the Applicant was homosexual and the fact that his suggestion to Mr Humby that it placed him “under a cloud” at least implies a possibility of prejudice against homosexuals. It is, therefore, highly possible that Mr Crouch made the remark alleged by the Applicant.

87 Apart from Mr Crouch’s denial of any anti-homosexual remarks to the Applicant, however, is the fact that, even on the Applicant’s evidence, there had been no discriminatory treatment against him by Mr Crouch or the Club in June 2000 or shortly thereafter when one might have expected that a Club with discriminatory tendencies against homosexual members would have shown its true colours. Even on the Applicant’s evidence, it was not until April the following year that the alleged tendency revealed itself. This suggests that Mr Crouch’s denials of such behaviour are, if not conclusive, at least plausible. The same conclusions apply to the suggestion that Mr Crouch made offensive remarks about the Applicant’s tremor.

88 Both parties assert that their respective accounts of that meeting are clear and consistent. Their conflicting accounts, however, are unsupported. Both are, apparently, plausible. Neither, however, is independent. Both witnesses have a vested interest in the outcome of these proceedings. It is word against word. Mr Humby’s evidence is hearsay and is that of a witness who is not independent but obviously aligned with the Applicant. Moreover, Mr Humby perhaps had his own reasons for disliking Mr Crouch, especially when it became clear that he was no longer to enjoy the use of the Club’s facilities. And in any event, Mr Humby’s evidence can only assist on when the resignation was raised not whether Mr Crouch hurled the range of insults at the Applicant as alleged.

89 While we are not entirely satisfied by Mr Crouch’s evidence, for the reasons we have given above, we cannot be satisfied to the requisite standard that Mr Crouch attacked the Applicant in the manner alleged.

Findings and Conclusions in relation to discrimination complaint

A detriment?

90 There is no dispute that the Applicant was requested to resign, that the Club also requested that Mr Humby leave the premises and that instructions were issued to staff requiring that the Applicant not be called “Lord Andrew”.

Form of address

91 Notwithstanding that this litigation has been on foot for a very lengthy period and that the dispute over the Applicant’s right to use the honorific “Lord Andrew” has been in issue for at least three years, the Applicant’s solicitors, in answer to the Tribunal’s call for submissions on the relevance or otherwise of the information contained in the websites of Burke’s Peerage and the Manorial Society of Great Britain (see para. [49]), sought a further eight weeks to find and produce to the Tribunal the documents that he claims will prove his right to his asserted title. We refused the application.

92 The Applicant did however produce a letter from a Scottish solicitor who claimed to have an understanding of Scottish and UK peerage law. The solicitor asserted that “the trust of which the Applicant is a beneficiary holds 13 lordships of manors and one barony title in Ireland…it is from Ireland that he derives the territorial title ‘of Craigstown’”. The solicitor went on to state that there is some social confusion within the UK as to the proper use of the term “Lord” and that the subject in this jurisdiction is arcane.

93 It is submitted for the Applicant that the real issue is not whether he was entitled to call himself “Lord Andrew Battenberg” but the reason the Club called a halt to that practice. There is no property or ownership in a title, it is asserted and accordingly it is not necessary to establish an entitlement to prove that a refusal to use a preferred term of address constituted a detriment.

94 In supplementary submissions the Club contended that the Tribunal has no jurisdiction to determine the validity or otherwise of the Applicant’s supposed title and that its website enquiries, to the extent they are relevant, apparently corroborate the information received from the College of Arms by Mr Spokkreeff (see para. [43]).

95 If Burke’s Peerage is correct, and it is also the case, as asserted by the Applicant’s solicitors, that the Applicant was the holder of a “Lord of the Manor” title, it would seem that the Applicant was not entitled to call himself “Lord Battenberg”, because such titles are the exclusive domain of British peers, but was entitled to called himself “Andrew Battenberg, Lord of the Manor of Craigstown”. The use of the title “Lord” by a person suggests to others that the user is a peer or, by virtue of being the son of a peer, has the courtesy title “Lord …”. His solicitor’s assertions, based on his instructions presumably, are erroneous and misconceived. He was not a peer and he held no peerage despite the assertions made in the letter of 13 July 2001. It is implausible that he would not have known this himself as he clearly had knowledge of the Manorial Society of Great Britain and also of Debretts and Burke’s.

96 On the evidence of Burke’s Peerage and the Manorial Society of Great Britain, a careful distinction is drawn between peers, whose titles may not be purchased, and holders of manorial titles, whose titles can be and, presumably, usually are acquired by purchase. Both Burke’s Peerage and the Manorial Society make clear the lack of entitlement by the holder of a manorial title to use the prefix “Lord…”. If Burke’s Peerage is accepted as an authority on the question of titles, the Club had every reason to refuse to call the Applicant “Lord Battenberg” and to instruct its staff to refrain from complying with his demand in that respect.

97 Here the Applicant represented to the Club that he has an entitlement to the title “Lord”. In our view the Club’s refusal to use the title by which the Applicant sought to be addressed could not have been a detriment because on the evidence available he had not established that he was entitled to that honorific in the first place.

Mr Humby

98 It is less clear whether the challenge by the Club over Mr Humby who had effectively been living as a guest of the Club, but in an unorthodox fashion, constitutes a “detriment”. It is to be remembered that Mr Humby remained at the Club until the Applicant’s membership ‘ceased’, some four months after the issue was first raised by Mr Crouch.

99 The rules of the Club do not expressly address or limit the use an invited guest may make of its facilities although, it is arguable, as Mr Crouch apparently believed that they contemplate that any use would be occasional. In determining whether the challenge to Mr Humby constitutes a detriment it is relevant that for a significant period, the Club, through Mr Goodall, impliedly, if not expressly, authorised Mr Humby’s attendance. While this arrangement was not apparently extended to any other member it does not follow that it cannot constitute a benefit. The issue here is not whether the Club was entitled to revisit Mr Goodall’s decision but whether in all the circumstances the decision to terminate that benefit constitutes a detriment. We are satisfied that it did.

Resignation

100 Likewise the call on the Applicant to resign from the Club was a detriment under the Act.

Disability Complaint

Causation

101 We have dealt with the evidence in relation to disability to some degree already. The threshold issue is whether the Club, through its officers or employees, had knowledge of the Applicant’s disabilities. If not, it follows that it could not form part of the reasons the Respondent treated the Applicant as it did.

102 Mr Goodall was aware of the Applicant’s condition in general terms. However, there is no evidence that he told anyone else. He seemed to us to a be person who would be at pains to respect the privacy of Club members and not to indulge in idle gossip. The only evidence that Mr Crouch knew of the Applicant’s various conditions is the alleged tremor insult which we found not proven. There is no evidence that Mr Spokkrreef knew of any disability and he was not cross-examined on this point.

103 Counsel for the Applicant submitted that the Applicant’s tremor was so pronounced that it is inconceivable that it could have gone unnoticed by Mr Crouch and other members of the Club. He invited us to make this conclusion on the basis of Dr McMurdo’s observation of a tremor and our own observations of the Applicant in these proceedings. We have difficulty with the latter for two reasons. First, from our observations it was not immediately apparent that he did display a tremor, but in any event any observations of the Applicant two years after the incidents which are the subject of the complaint can only be of limited value.

104 While it is possible that at the material time the Applicant did display a tremor so marked that it would not have gone unnoticed by a layperson, on balance we cannot be satisfied that this was the case.

105 Nor are we satisfied that Messrs Spokkreef or Crouch had direct or constructive knowledge of the applicant’s disabilities at the material time. It follows that we could not be satisfied that the Applicant’s disability played any part in their treatment of him.

106 Accordingly, the complaint of discrimination on the ground of disability must fail.

Perceived Homosexuality

107 The weight of evidence suggests that the Club, and Mr Crouch in particular, perceived the Applicant to be a homosexual. Mr Crouch’s remarks on that topic in his meeting with Mr Humby and his knowledge of, and reaction to, the earlier allegations of an assault on the Applicant all lead to that conclusion. Mr Spokkreeff’s evidence that he knew there were rumours to that effect also leads to the same conclusion.

Causation and Differential Treatment

108 The issue for determination is whether one of the reasons Mr Crouch called on the Applicant to resign and / or for Mr Humby to leave was because he thought the Applicant to be homosexual. As set out above, we found that the directive not to address the applicant as ‘Lord Andrew’ does not constitute a detriment. In case we are wrong on this point we go on to consider whether the Applicant’s perceived sexuality played any role in that decision.

109 The Club has a right to control its affairs according to its constitution and articles as far as they comply with the general law. If it made rules to deal with chronic debtors, requested non-members to leave its premises or refused to call a member by a title it believed he did not hold, it appears to us to have been within its rights to do so. However, if one of the reasons the Club acted as it did was because the Applicant was thought to be homosexual, superficial compliance with constitutional form would not save it. If, however, the Applicant fails to discharge his burden of proof, the Club must succeed. The allegations against Messrs Crouch and Spokkreeff, and through them the Club, are serious. We must be comfortably satisfied that the Applicant’s version is correct.

110 We must digress to deal quickly with a point argued by counsel for the Applicant. He asserts, we think wrongly, that once a case to answer is demonstrated the burden of proof is reversed. He has provided us with no authority for this proposition and it flies in the face of first principles of proof. We reject that submission. While there may be some evidentiary onus to fall on a Respondent once a case to answer is shown, the burden of proving a case on the balance of probabilities lies from first to last on the Applicant.

111 Mr Crouch steadfastly denied throughout these proceedings that the Applicant’s sexual preferences, whatever they might be, had any bearing on his reasons for calling the meetings on 24 April or raising the matters he did at those meetings, or for his role in the directive to staff not to call the Applicant ‘Lord Battenberg’.

112 Messrs Crouch and Spokkrreef might have suspected that the Applicant might have been homosexual, this does not necessarily establish the necessary causal link between their respective roles in the actions which led to him being subjected to the detriment/s he complains of. At best it raises the suspicion that this might have been the case.

113 The only direct evidence that the Applicant’s sexuality might have played some part in Mr Crouch’s attitude towards him is the claim that Mr Crouch at the meeting of 24 April asked him in an accusatory and derisory manner whether he was homosexual which we found not proven.

114 The Applicant’s case as we understand it is that it is inconceivable that his perceived sexuality did not infect the Respondent’s decision making in some way. After all, it was argued this was a conservative Club not known for its tolerance of minorities as Mr Crouch’s reaction to the report of the assault on the applicant bore out. It is not plausible, he contended, that the Club subjected the Applicant to a detriment/s for the stated reasons because at the time Mr Crouch first raised these matters the applicant was not in debt to the Club; second, no objection had been raised about Mr Humby before that time and third, the Applicant through his legal representatives had provided reasonable evidence of his claim to a title. The totality of the evidence, it is submitted, points to the Club moving against the Applicant because they did not want his type (someone thought to be homosexual) in the Club.

115 It goes without saying that without any direct evidence, it is notoriously difficult for an Applicant to establish that the proscribed ground played a part, however small, in a decision that resulted in him or her being subjected to a detriment. It is possible that Mr Crouch, Mr Spokkreef or other members of the Club’s executive allowed these considerations consciously or otherwise to influence their decisions about the applicant. Equally, it is possible that each acted as they did because of the reasons given.

116 In our view, the weight of evidence indicates that the Club’s real issue with the Applicant was his chronic tardiness in bringing his account up to date and his maintenance of a non-member (Mr Humby) on the premises, a non-member who, apparently, made himself at home, just as if he were a member. Both could be assumed to irritate the most docile of any Club’s management. Added to this was the growing realisation that the Applicant’s claim to call himself a Lord might have been baseless. The Club’s patience had grown thin. Mr Spokkreeff’s arrival on the scene heralded an end to the patient tolerance that had been extended to the Applicant up to that time. No doubt the AMEX incident and the questioning by another Club about the Applicant’s debts also triggered a revaluation of the situation.

117 Before making a final determination on this issue it is useful to explore whether there is any evidence of less favourable treatment by the Club, as such evidence might shed light on the reasons the Club, through its officers, acted as it did.

118 As noted there is no evidence of an actual comparator. We think it unlikely that a member with the Applicant’s payment history and dubious claim to a title but not thought to be homosexual would have been treated more favourably. In the situation in which the Applicant found himself, we think it probable that Mr Crouch would have summoned a ‘please explain’ meeting and asked for his resignation. Similarly, we have no reason to believe that our hypothetical comparator would have been permitted to extend to his staff unfettered use of Club facilities. Nor could we be satisfied, given the growing disquiet and uncertainty over the Applicant’s title, that Mr Spokkreeff would not have acted differently.

119 In our view, the Applicant has not discharged his evidentiary burden of establishing that in respect of the three incidents, considered separately or as a whole, that he was treated less favourably than a member not thought to be homosexual. It is impossible to rule out that the perception that the Applicant might have been homosexual did play some role, however small, in the way he was treated. However, we cannot be satisfied on balance that this was the case.

120 The complaints of discrimination on the ground of perceived homosexuality and disability are therefore dismissed.

Complaint of Victimisation

121 The Applicant claims that the reason the Club notified him in August 2001 that his membership had ceased was because he had made a complaint of discrimination to the Board. If proven, this would probably constitute a contravention of s 50 of the Act. The elements necessary to establish this are set out in Battenberg (No.2) at [50]. The Club’s position is that it took steps to bring the Applicant’s membership to an end not because he had made a complaint of discrimination but because it had received legal advice that his membership had ceased as a consequence of his bankruptcy.

When did the Club learn of the bankruptcy?

122 It is common ground that the Applicant did not advise the Club in writing of this until April 2001. He claims, however, that he told Mr Goodall in or about May 1997. This is denied. Messrs Spokkreeff, Crouch and Goodall each claim that they were unaware of his bankruptcy until late March/early April 2001.

123 According to Mr Spokkreeff, in late March 2001 he heard a rumour that the Applicant had been made bankrupt and as a result he arranged for a search of the bankruptcy register to be conducted.

124 The Applicant contends that it is simply implausible that the Club could have been ignorant of his circumstances. He claimed that some members must have learnt of the bankruptcy through the great media interest it had generated. He also claimed that some members practised in the area of insolvency and “must have known”.

125 Given the significance of the claim of media interest, it is somewhat surprising that no evidence was led to corroborate that claim. It would have been a relatively simple task to conduct a search of media outlets and obtain such proof. While we accept that media interest is likely to have generated gossip within the Club, without any evidence of such interest, we are unable to infer that it did. Similarly, there is no evidence to support the Applicant’s claim that some members practicing in the area must have known of his predicament.

126 On the material before us, we cannot be satisfied that the Club through its officers or employees was aware that the Applicant had been declared a bankrupt and its annulment before late March 2001.

Why did the Club terminate the Applicant’s membership?

Submissions

127 The Respondent’s case is that the decision to terminate the Applicant’s membership was completely unrelated to his complaint of discrimination. It argued that some three months before it took that decision, it had taken steps to obtain an opinion from senior counsel on whether, by the operation of rule 16(b), the Applicant’s membership had ceased. Article 16(b) of the Club’s Constitution provides that a member shall cease to be a member if he becomes bankrupt. The Respondent asserts that it was justified in writing the letter of 16 August 2001 because of the legal position regarding bankruptcy according to its Constitution. It had a duty to comply with the law and its own Constitution, which it endeavoured to do.

128 The Applicant contends that it is simply fanciful that the two events were unrelated. Within days of learning of the complaint, the Club wrote to the Applicant and told him he was no longer a member. Mr Spokkreeff met with his legal representatives, allegedly to discuss the bankruptcy, the day after he had been told by the Board about the complaint.

129 The Applicant further asserts that it is relevant that at the time the decision was taken there was no pressing need for the Club to take any action over his membership: his accounts were in order and the Club had before it a legal opinion provided by his lawyers that the annulment effectively voided the bankruptcy. In any event he asserted by August 2001, these events were long past.

130 He further contends that it is not coincidental that the Respondent changed its position from that set out in Mr Spokkreeff’s letter of 19 April 2001 - “ we have no present objection to your client being accommodated in the Club” - after it came to learn of the complaint of discrimination.

Findings and Conclusions

131 We do not accept the Respondent’s argument that the advice from senior counsel effectively tied its hands. While the officers of the Club had a duty to comply with its Constitution, this does not mean that they were required to act on every breach or infraction that came to their attention. As these proceedings make clear, they had not done so in the past. It had been open to the Club to terminate the Applicant’s membership for his failure to comply with rule 36(c) and yet despite threatening, it had not done so.

132 What then spurred it into action? It was not, as the Respondent invites us to believe, that its executive had suddenly become charged with a sense of rectitude and felt obliged to follow the advice it received. But nor do we accept the Applicant’s hypothesis that the primary reason was because he had made a complaint of discrimination.

133 On the evidence before us, as early as July 2001, well before the Club was alerted to the Applicant’s complaint, Mr Spokkreeff had taken steps to obtain advice on the effect of the Applicant’s bankruptcy on his membership. That opinion was not sought because of some passing academic interest in the application of rule 16(c) but because Messrs Spokkreeff and Crouch wanted the Applicant out of the Club. He had become a liability, an embarrassment and their patience was exhausted. It had become apparent after Mr Crouch’s call for his resignation that he would not go quietly and they were keen to find a clean way to sever the tie.

134 No doubt the news that the Applicant had gone to the Board would not have been received warmly. It is possible that it hurried the process along. However on the material before us we cannot be satisfied that the complaint was the real and operative cause for the Club’s decision, or, that the Club would have acted differently had the complaint not been made.

135 The complaint of victimisation is therefore dismissed.

Costs

136 Both parties foreshadowed that they intended to apply for costs.

137 Parties are granted leave to apply for costs, such application to be lodged within 14 days of the date of these orders. If such application is received matter to be set down for a directions hearing at a date to be fixed by the Registrar.

Orders

1. The complaint of discrimination on the grounds of disability is dismissed

2. The complaint of discrimination on the grounds of perceived homosexuality is dismissed

3.The complaint of victimisation is dismissed

4. Parties are granted leave to apply for costs, any application to be lodged within 14 days of the date of these orders

5. If a costs application is received matter to be set down for a directions hearing at a date to be fixed by the Registrar.