Battenberg v The Union Club

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…