Battenberg v The Union Club [no.2]
[2003] NSWADT 187
•08/14/2003
CITATION: Battenberg v The Union Club [no.2] [2003] NSWADT 187 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Andrew Battenberg
RESPONDENT
The Union ClubFILE NUMBER: 011069 HEARING DATES: 09-10/12/2002, 28-29/04/2003 SUBMISSIONS CLOSED: 04/29/2003 DATE OF DECISION:
08/14/2003BEFORE: Britton A - Judicial Member; Nemeth de Bikal L - Member; Bolt M - Member APPLICATION: MATTER FOR DECISION: Dismissal s111(1) LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977CASES CITED: Langley v Niland & Anor (1981) 2NSWLR 104; Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998); Tredinnick v Wentworth Area Health Service [2000] NSWADT 172; Karekar v Tafe Commission of NSW [2000] NSWADT 187; State Electricity Commission of Victoria v Rabel [1998] 1 VR 102; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73; Tannock v State of New South Wales [1999] NSWADT 73; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 ; Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221; Salama v Qantas Airways Ltd [2002] NSWADT 119; Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4; Harding v Vice Chancellor, University of NSW [2003] NSWADT 74; Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44; Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR; Tate v Johnson (1953) 53 SR (NSW) 492, Treharne v Geo. McEwin & Son Pty Ltd (1982) 44 ALR 543, Bank of New South Wales v Signorini; Ex parte Signori [1966] Qd R 322; Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412; Copper Industries Pty Ltd (in liq) v Hill (1975) 12 SASR 292; Bonella v Wollongong City Council [2001] NSWADT 194; Dutt v Central Coast Area Health Service [2002] NSWADT 133; Martin v McKensey (No. 2) [2003] NSWADT 126; Kennedy v Director-General, NSW Department of Industrial Relations [2002] NSWADT 186 REPRESENTATION: APPLICANT
J Dupree, barrister
RESPONDENT
K Eastman, barrister
M Sneddon, barrister (29 April 2003)ORDERS: Application dismissed.; Matter to be set down for hearing at dates to be fixed by the registrar.
REASONS FOR DECISION
1 The Respondent, the Union Club, makes application under s 111(1) of the Anti-Discrimination Act 1977 (NSW) (“the Act“) to have complaints made by the Applicant, Andrew Battenburg, dismissed on the grounds that each lack substance.
2 In the first complaint, lodged with the President of the Anti-Discrimination Board (“the President”) on 18 July 2001, the Applicant alleged unlawful discrimination on the grounds of disability and presumed homosexuality. The focus of that complaint was a meeting between the Applicant and Club President, Michael Crouch, on 24 April 2001. The Applicant alleges that at that meeting Mr Crouch demanded his resignation from the Club and made disparaging comments about his sexuality and mental health.
3 The second complaint lodged on 16 August 2001 alleged that the Club, in terminating the Applicant’s membership, subjected him to further “vilification” [sic].
4 By letter dated 3 September 2001, the President referred both complaints to the Administrative Decisions Tribunal (“the Tribunal”) under s 91(1) of the Act having formed the view that these complaints could not be resolved by conciliation.
Background
5 The Respondent is a registered club for the purposes of the Registered Clubs Act 1976 (NSW). The rules of the Club are set out in its Articles of Association (“the Constitution”). The Applicant became a member of the Club in 1992.
6 The Club offers members dining facilities and accommodation at its Bent Street, Sydney premises. The cost of these services is payable on issue of a monthly account (“the house account”). In addition, members pay an annual subscription fee.
7 Throughout 2000 and until August 2001 the Applicant rented a suite at the Club at $600 per week.
8 In early April 2001, Paul Spokkreeff, the Club’s Chief Executive Officer and Secretary, advised the Applicant that his credit card payment had been declined. The Applicant asserted that this occurred because the Club’s clerk had entered the wrong expiry date of his credit card.
9 Rule 36(a) of the Constitution provides that if members fail to pay their house accounts within two months after the date that 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).
10 On 18 April 2001, the Club passed a by-law which provided that where a member fails to pay his account on three or more occasions, the Secretary may require the member to keep their account in credit. The Applicant asserts that this rule was targeted at him and referred to it in these proceedings as the “Battenberg amendment”. The Club denies this claim.
11 On 24 April 2001, the Applicant was called to a meeting with Club President Michael Crouch and asked to resign. He refused.
12 The Applicant was declared bankrupt on 19 May 1997. That bankruptcy was annulled on 23 March 2000.
13 By letter dated 16 August 2001, Mr Spokkreeff, advised the Applicant that by virtue of 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.
Approach to s 111(1) Applications
14 Section 111(1) of the Act provides that where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.
15 The term “lacking in substance”, in the context of anti-discrimination legislation at both the State and Commonwealth levels has been considered extensively. In our view, a complaint can be said to “lack substance” if it can be demonstrated that there exists no factual basis for the allegations, or that the allegations lack merit. This is consistent with the approach adopted in Langley v Niland & Anor (1981) 2NSWLR 104 at 107; Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998); Tredinnick v Wentworth Area Health Service [2000] NSWADT 172; Karekar v Tafe Commission of NSW [2000] NSWADT 187.
16 This view is consistent with the interpretation adopted by Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109. His Honour stated that the term “lacking in substance” was commonly used by lawyers to mean “an untenable proposition of law or fact”.
17 In a long line of decisions, the Equal Opportunity Division of the Tribunal has adopted the approach that the discretion to dismiss a complaint summarily under s 111(1) should be exercised with exceptional caution and only if the circumstances clearly warrant such action. (See Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 Tannock v State of New South Wales [1999] NSWADT 73; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16 [at 34]; Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221; Salama v Qantas Airways Ltd [2002] NSWADT 119 at [8]-[10]; Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4; Harding v Vice Chancellor, University of NSW [2003] NSWADT 74 at [24].)
18 In Prakash v Bobb Borg Enterprises Pty Limited [at 35] the Tribunal applied the following test to determine whether an exercise of the Tribunal's powers under s 111(1) of the Act was warranted:
19 In this case, in order to ascertain whether either complaint is “lacking in substance”, we propose to take the Applicant's evidence at its highest, so as to enable us to determine whether he could possibly substantiate a complaint under the Act. If we conclude that the conduct complained of could not possibly amount to a contravention of the relevant provisions of the Act, we are bound to find the complaint “lacking in substance”. If we are not so persuaded, the Club’s application on this point must fail.
… we believe that the appropriate way forward is to take the complainant's evidence at its highest point or, in other words and for the purpose of this exercise, to accept that everything which the complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination.
Procedural Issues
20 Before determining the application, however, there are a number of procedural issues to be considered.
Procedural Issue 1: Should the Respondent be put to its election?
21 Counsel for the Applicant, Mr Dupree, contends that in having made an application under s 111(1) the Respondent must be “put to its election”. Ms Eastman, for the Respondent takes a contrary provision.
22 In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 the Tribunal was requested to rule on the same question. It concluded that, while there may be a “general rule” that a party moving for the case to be dismissed at the conclusion of the opponent’s evidence was thereafter precluded from adducing evidence (citing G. Roberts, Evidence : Proof and Practice, Sydney : LBC Information Services, 1998 at pages 108-109), that it was, firstly, a discretionary matter for the Tribunal and, secondly, an inappropriate rule to be applied generally in s 111(1) proceedings because of the emphasis placed in this Tribunal on natural justice, fairness, equity and the relative informality of proceedings.
23 In our opinion, however, it is not even clear that, absent a specific rule established by a court or tribunal governing the conduct of its proceedings, there is a general rule that parties must be forced to their election before making a “no case” submission. In Tate v Johnson (1953) 53 SR (NSW) 492, the NSW Supreme Court held that there is no rule of law or practice which precludes a judge trying a case summarily from ruling on a question of law which may arise at the conclusion of a plaintiff’s case without forcing the defendant to elect. Tate v Johnson has been followed or cited with approval in a number of Australian jurisdictions since that time: see, for example, Treharne v Geo. McEwin & Son Pty Ltd (1982) 44 ALR 543, a decision of the Federal Court; Bank of New South Wales v Signorini; Ex parte Signori [1966] Qd R 322, a decision of the Queensland Supreme Court, Schipp v Herfords Pty Ltd [1975] 1 NSWLR 412, a decision of the NSW Court of Appeal and Copper Industries Pty Ltd (in liq) v Hill (1975) 12 SASR 292.
24 Even if it be the case that there is a general common law rule that counsel should be put to their elections, it is clear from the authorities that, absent a mandatory rule to the contrary, the court or tribunal concerned retains a discretion to govern its own proceedings. In Copper Industries, Walters J of the SA Supreme Court said (at 294):
25 We agree with the conclusions reached by the Tribunal in Sivananthan v Commissioner of Police, New South Wales Police Service . In our opinion, not only is there no requirement that the Tribunal put the respondent to its election if it chooses to make an application under s 111, but that the interests of justice suggest that the discretion of the Tribunal ordinarily be exercised in favour of allowing both sides to present their cases. Bearing in mind the purposes of the legislation, and the considerable consequences for the reputations of the parties involved in litigation of this type, the desirability of determining matters concerning allegations of discrimination on their merits rather than by legal technicalities suggests that in most cases both parties ought have a full opportunity to present their evidence in full and receive a determination accordingly. We therefore reject the Applicant’s submission on this point and do not require the respondent to elect.
It would be imprudent of me to lay down any general rule as to the circumstances in which counsel should, or should not, be put to an election. There may be cases where, as a matter of convenience, the submission of no case to answer should not be entertained except upon terms that the defendant should undertake not to call any evidence. On the other hand, to use the language of Gavan Duffy J in Humphrey v Collier [1946] ALR 448 at 449, “there might be occasions when strict adherence to it (the practice of putting counsel to his election) would result in unnecessary loss of time and money.
Procedural Issue 2: Scope of the first complaint
26 It is uncontroversial that the President did not exercise his discretion under s 88(4) of the Act. Accordingly, the first complaint is limited in time to the period 18 January 2001 to 18 July 2001.
27 Ms Eastman, for the Club, contends that the first complaint is limited in scope to the 24 April 2001 meeting where the Applicant was asked to resign from the Club. While it is conceded that the first complaint raises additional allegations, Ms Eastman maintains that these lack specificity and cannot be said to properly form part of the complaint before the Tribunal.
28 In the first complaint, the Applicant stated, “when I returned [to live at the Club] in March 2001 the problems started with the Secretary and the President in particular on 24 April 2001”. He stated that on 24 April and again the following Monday, Mr Crouch demanded his resignation. “Now they [Mr Spokkreeff and Mr Crouch] continue to bait me and make me most unwelcome.”
29 The matters set out in the Amended Points of Claim are broader in scope than those identified in the initiating complaint and refer among other things to:
30 It is useful at this point to briefly set out the basis of the Tribunal’s jurisdiction to entertain a complaint made under the Act. Section 96 says that the Tribunal shall hold an inquiry into each complaint or matter referred to it under s 94(1). A complaint is initiated by a written “complaint” lodged with the President “in respect of any contravention of this Act”: s 88(1). That complaint must be lodged with the President within six months after the alleged contravention is said to have been committed: s 88(3). The President has a discretion to accept a complaint outside that period where good cause has been shown: s 88(4). Section 94(1) requires the President to refer a complaint to the Tribunal (after investigation: s 89) where s/he is of the opinion that a complaint cannot be resolved by conciliation; has endeavoured to resolve a complaint by conciliation without success, or is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal.
A club lunch hosted by Mr Crouch on 13 March 2001;
A dinner held on 23 March 2001;
A Club by-law passed on 18 April 2001;
A memorandum issued by Mr Spokkreeff directing staff of the Club to address the Applicant as Mr Battenberg.
31 While a complaint lodged with the President must allege the commission of a contravention of the Act, “it need not allege the relevant facts with the particularity of an indictment or a pleading”: Langley v Niland [1981] 2 NSWLR at 107-108. In Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR at 93–94 Merkel J took the view that s 50 of the Sex Discrimination Act 1984 (Cth) (broadly comparable with s 88 of the Act) did not require the complaint to include any details of the allegedly unlawful act.
32 While it is apparent that the focus of the first complaint was the 24 April meeting/s, reference is also made to other alleged conduct by the Club’s officers and employees. While some or all of the alleged incidents as set out in the Amended Points of Claim might lack specificity this does not mean that they are outside the scope of the complaint referred to the Tribunal. As noted by the Appeal Panel in Commissioner of Police, New South Wales Police Service v Orr, a distinction needs to be drawn between a failure to provide particulars of a complaint on the one hand (a question of procedural fairness and natural justice), and the limits of the Tribunal’s jurisdiction on the other (a question of power).
33 On the second day of hearing, we ruled that the scope of the first complaint encompassed conduct said to have occurred during the period 24 April to 18 July 2001. Having heard further submissions from both parties we see no reason to depart from that ruling. It may be on closer examination of the material before us that the Applicant, as asserted by the Club, has failed to adequately particularise those incidents he alleged occurred after the April 24 meeting. If so, the claim in respect of those matters cannot succeed. However, such incidents cannot be said to fall outside the scope of the complaint, and consequently our jurisdiction, on that ground.
34 For convenience, we identify the following incidents as falling within the scope of the second complaint:
Procedural Issue 3: characterisation of the second complaint
The meetings of 24 April 2001;
The request that Mr Humby leave the club;
The instruction to Club staff not to address the Applicant as Lord Battenberg;
35 Mr Dupree submits that the second complaint should be determined as both a complaint of unlawful discrimination and victimisation. Ms Eastman argues that the Applicant is bound by the Amended Points of Claim, and therefore the second complaint can only be determined under the victimisation provisions of the Act, i.e. s 50.
36 In the second complaint the Applicant stated:
37 The President’s Report notes that both complaints appear to fall within s 50 and various provisions relating to discrimination on the grounds of homosexuality and disability in the area of registered clubs.
Today I received a letter from Mr Paul Spokkreeff [dated 16 August 2001, advising that the Applicant’s membership had ceased] a copy of which is attached. I believe this is further vilification and has been witnessed by Staff of the Union Club. Further the keys to my room were withheld from me and my car keys as well. I believe I have been victimised because of my first complaint. [It is common ground the Applicant used the term “vilification” in error and that he had meant “victimisation”.]
38 There is no statutory requirement that the initiating complaint identify which section/s of the Act the impugned conduct falls within. It is enough that a contravention of the Act is alleged, however described. It follows that, where the initiating complaint asserts that the conduct is caught by a particular provision of the Act, the complainant is not later bound by that characterisation.
39 The Applicant in his second complaint uses the language of s 50. He speaks of being “victimised” by the Respondent. This however is not determinative. What is relevant is the characterisation of the complaint in the Amended Points of Claim.
40 The sole reference to the second complaint in the Amended Points of Claim is found in paragraph 23. Paragraph 23 alleges that the decision to notify the Applicant that his membership had ceased was in contravention of s 50 of the Act.
41 Should a party in this jurisdiction be bound by their “pleadings”? There is no provision in the Administrative Decisions Tribunal Act 1997 (“ Tribunal Act”), or the rules made pursuant to that Act, requiring parties to set out their case by way of pleadings. In the Equal Opportunity Division of the Tribunal it is common practice, as was the case in this matter, for directions to be made requiring parties to file points of claim and defence.
42 The Tribunal has broad powers to determine its own procedure: s 73(1). Section 73(3) of the Tribunal Act instructs the Tribunal to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form: s 73(3). The Tribunal is at the same time bound by the rules of natural justice: s 73(4).
43 The objects of requiring parties to define their case by way of pleadings is to enable the Tribunal to determine the issues which divide the parties, and to prevent cases becoming mired in collateral issues. It is also a question of procedural fairness. Parties are entitled to know the cases against them.
44 A determination of whether the Applicant should be bound by the Amended Points of Claim requires a balance of what, at times, may appear to be the conflicting directives enshrined in s 73 - on the one hand, to ensure that technicalities and legal form do not prevail over substance, while at the same time affording each party procedural fairness.
45 There is no blanket rule that parties in this jurisdiction are bound by their “pleadings”. Whether such rule should apply can only be determined on a case-by-case basis. Here the Applicant has been legally represented since the referral of this matter to the Tribunal. The Points of Claim and Amended Points of Claim (filed at the end of the first day of hearing) identify the second complaint solely as a claim of victimisation. The recasting of the second complaint as unlawful discrimination was not announced until the second day of hearing. There is nothing in any of the documentation filed for the Applicant to suggest that the second complaint was cast as anything but a claim of victimisation.
46 In our view the Respondent was entitled to approach the case on the basis that the second complaint was a complaint of victimisation alone. Taking into account this and other relevant factors, we are not persuaded that the second complaint should be permitted to proceed as a claim of unlawful discrimination. Accordingly, the Second Complaint will be determined as a complaint of victimisation alone.
Relevant Legislative provisions
Disability Discrimination
47 Section 49B(2)(c) provides that it is unlawful for a registered club to discriminate against a person who is a member of the club on the ground of disability by subjecting that person to any other detriment.
48 The test of what constitutes discrimination on the grounds of disability is set out in s 49B of the Act. The Applicant’s case has been conducted on the basis of a claim of direct discrimination which is defined in s 49B(1)(a):
49 Section 4A of the Act provides that where an act is done for two or more reasons and one of those reasons constitutes unlawful discrimination, whether or not it is the dominant or substantial reason for doing that act, then the act is taken to be done for that reason.
1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) …
(3) …
(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.
50 Disability is defined in s 4 to mean:
Discrimination on the Ground of Homosexuality
(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or
(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person's body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
51 Section 49ZR(2)(c) makes it unlawful for a registered club to discriminate against a member on the ground of homosexuality by subjecting the person to any other detriment.
52 The test of discrimination on the grounds of disability is set out in s 49ZG of the Act. The Applicant’s case has been conducted on the basis of a claim of direct discrimination which is defined in s 49ZG(1)(a) as follows:
53 Section 49ZF provides that a person's homosexuality includes a reference to the person being thought to be a homosexual person, whether he or she is in fact a homosexual person or not.
(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of homosexuality if, on the ground of the aggrieved person's homosexuality or the homosexuality of a relative or associate of the aggrieved person, the perpetrator:
(2) For the purposes of subsection (1) (a), something is done on the ground of a person's homosexuality if it is done on the ground of the person's homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons.
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or
(b) …
Victimisation
54 Section 50 of the Act makes it unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
First Complaint
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
Issues
55 To succeed in his first complaint the Applicant must establish on balance the following elements:
Incident 1: Demand for Applicant’s resignation
First, that throughout the period covered by the first complaint i.e. 24 April 2001 to 18 July 2001:
Second, that in respect of each alleged contravention of the Act that he was subjected to a “detriment” within the meaning of ss 49O(2)(c) and 49ZR(2)(c);
(i) he had a disability
(ii) he was thought to be a homosexual by the respondent (or its agent);
Third, that if so, a person without the Applicant's disability or perceived homosexuality was, or would have been treated more favourably in the same or similar circumstances.
Fourth, that one of the reasons for any less favourable treatment he received was the Applicant’s disability or perceived homosexuality.
Evidence
56 The Applicant claimed that on 13 June 2000 he was sexually assaulted by a male guest on Club premises. He claims that following the assault the police were called, against the wishes of Mr Crouch. According to the Applicant, no charges were laid but subsequently he commenced court proceedings against the assailant, which were settled on terms confidential to the parties.
57 On 24 April 2001 the Applicant was called to a meeting with Mr Crouch. In his statement the following account of that meeting was given: [words in italics are words attributed to the Applicant].
58 Later that evening at about 9pm the Applicant claims he was summoned to a second meeting where Mr Crouch presented him with a prepared letter of resignation which he refused to sign.
“You're a bit of a mystery.”
“What do you mean by that?”
“Well, who is your father, your natural father?”
“I am not prepared to discuss that with you.”
“Who is your father ?”
“I am not prepared to say.”
“Well, is Mrs Lee your natural mother?”
“No, but it is none of your business.”
“So, it was some other whore, who is it?”
“I am not prepared to talk about this.”
“It is just between the two of us”
“No”.
“You have some sort of tremor, have you had a nervous breakdown?”
“No, it is a genetic problem.”
“I think you are having a breakdown"
“I have been receiving treatment after the assault.”
“Your conduct of entertaining in your room is not acceptable to me”
“It was not my fault.”
“What do you get up to with Mr Humby.”
"Nothing. He is my security and looks after me while in Sydney.”
“I want him out of the Club today.”
“No, you have no right to do that.”
“I am the President and I am not prepared to allow your security man to stay.”
“Well, he is staying, that is his job.”
“Are you homosexual? I believe you are.”
“I am not prepared to discuss that with you.”
“I want you to resign from the Club now. You're not a fit and proper person to be a member.”
“I will not. You cannot make me.”
“Your type is not welcome here.”
“I beg your pardon, what do you mean ‘your type’?”
"Well, look at you. I believe you are having a mental breakdown, I don't approve of your sexuality, you are just not an appropriate person to be a member. You were even born illegitimate.”
“There is no such thing.”
“You don't even have a name, what is it, Lee or Battenberg?”
“Battenberg.”
“Resign.”
“No.”
59 Mr Humby was employed by the applicant as his driver and security agent from November 1997 until September 2001. He gave evidence that following the 5pm meeting he was questioned by Mr Crouch. According to Mr Humby, Mr Crouch asked “What are your personal circumstances, Mr Humby? After all you do share a room with Mr Lee [the Applicant], are you married?”
60 The Applicant explained that Mr Humby was employed as his security man. He said it was necessary that Mr Humby be with him at all times as he suffered from a medical condition which meant he had problems maintaining balance. He said he suffered from a tremor which had become more pronounced since the June 2000 assault.
Relevant Characteristics
61 Disability The Amended Points of Claim allege that the Applicant suffers from “a rare form of neurofibromatosis; bleeding disorder; vertigo; post traumatic stress syndrome; essential tremor”.
62 The Applicant gave evidence that following the alleged assault in June 2000 he had been receiving treatment for stress and suffered from a tremor.
63 Tendered in evidence was a report by psychiatrist , Robert McMurdo, dated 14 June 2001. Dr McMurdo assessed the Applicant on 13 June 2001. Dr McMurdo was not the Applicant’s treating physician.
64 Dr McMurdo recorded that the Applicant had a marked tremor of his hands. He diagnosed the Applicant as suffering from a Post Traumatic Stress disorder and recommended that he receive ongoing treatment though a combination of anti-depressant medication and behavioural therapy. He noted that as a result of the disorder, the Applicant had problems with concentration, is hyper-vigilant, constantly checking for dangerous situations. Dr McMurdo recorded that following the assault the Applicant has suffered from a number of problems including: panic attacks; trembling; feeling frightened; feelings of insecurity and vulnerability.
65 Ms Eastman contends that the Applicant must produce medical evidence that the alleged disability was present at the relevant time and relies on Tate v Rafin [2000] FCA 1582 at [64] and [65] as authority for that proposition. She asserts that as Dr McMurdo’s report postdates the 24 April meeting, it cannot be said to establish that the Applicant suffered from a disability at that date.
66 On the Applicant’s account, the symptoms identified by Dr McMurdo did not suddenly appear on the eve of his assessment but had been present in one form or another since June 2000. In our view it would be open to us to infer that the Applicant suffered from a Post Traumatic Stress disorder as at 24 April 2001.
67 Post Traumatic Stress disorder would appear to be capable of falling within paragraphs (e) of the statutory definition of “disability”: “a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour”.
68 Perceived Homosexuality The Applicant’s account of his first meeting on 24 April with Mr Crouch, together with that given by Mr Humby, could support a finding that Mr Crouch thought him to be homosexual. It is difficult to see what other inference could be drawn from the words: “What do you get up to with Mr Humby?…Are you homosexual? I believe you are.”
69 Was the applicant Subjected to a detriment The meaning of “detriment” was considered in Bonella v Wollongong City Council [2001] NSWADT 194 at [50]:
70 It is submitted for the Respondent that the meeting, the subject of the first complaint, did not have the necessary quality of seriousness to amount to a detriment. Ms Eastman asserts that words spoken during the course of a conversation will not generally amount to a detriment unless the words and conduct of the Respondent constitute bullying or abuse. At best, argues the Respondent, on the Applicant’s own evidence he was asked to resign and refused. He remained a member until August 16 and continued to reside at the club and use its facilities during the period.
“…detriment” should be given its common meaning of "loss, damage or injury". It has also been held in those cases that "the detriment suffered by the complainant must be real and not trivial" and "whether something constitutes a detriment must be determined objectively and not subjectively" (see Sivananthan at paragraph 41).
71 Whether a meeting (or conversation) can be said to amount to a detriment will depend on the circumstances surrounding that meeting. On the Applicant’s account, he was subjected to repeated insults about his sexuality, his mother and mental state. He was told he was not wanted at the Club. The meeting ended with a demand for his resignation.
72 It is to be noted that these attacks were made by a person who it may be inferred enjoyed a level of influence in Club affairs. The Applicant had been a member of the Club for ten years; he saw it as a second home.
73 While the Applicant continued to be a member of the Club and use its facilities, despite Mr Crouch’s demand for his resignation, it does not follow that these meetings can be therefore dismissed as trivial or unimportant. In our view on the basis of the evidence thus far, it would be open to us to find that the Applicant’s treatment at the April 24 meetings amounted to a detriment.
74 Assessing Less favourable treatment and causation In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5, an Appeal Panel of the Tribunal formulated a question which it said should be determined in all cases of direct discrimination. In the circumstances of this case that question is: "Did the Respondent, on the ground of the Applicant’s disability /or perceived homosexuality, treat the Applicant less favourably than it treated, or would have treated, a person without that disability, or a person not thought to be homosexual, in the same circumstances or circumstances that were not materially different?”
75 This test involves two elements, labelled by the Appeal Panel as ‘different treatment’ and ‘causation’. The Panel advocated at [45] that, different treatment should be considered first because “if there is no relevant differential treatment it is unnecessary to consider the issue of causation”.
76 The recent decision of Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63]-[65] identified a practical difficulty with following the approach advocated by the Appeal Panel in a case, such as this, where there is no actual comparator:
77 The shortcomings of the Aldridge approach was also commented on in the recent case of Martin v McKensey (No. 2) [2003] NSWADT 126 at [46]:
When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds for treatment of the Applicant were. If an Applicant was Chinese and was refused service (or denied promotion, or given menial duties etc), we cannot say how the hypothetical comparator, who is not Chinese, would have been treated in the same circumstances. The only fact that it is possible to determine is the ground or grounds on which the Applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The Applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the Applicant's race would have been treated differently.
In Aldridge the Appeal Panel said that "if there is no relevant differential treatment it is unnecessary to consider the issue of causation". In the case of a hypothetical comparison, an extension of this might be: 'but there is no basis on which to assess whether there would have been differential treatment until the cause for the actual treatment is known'.
This is not to disagree with the analysis in Aldridge, but to explain why in this matter, and we suggest in many others where the comparator is hypothetical, the two questions as to "less favourable treatment" and "on the ground of race" might be answered as part of the same reasoning exercise.
78 In this case we consider it appropriate to first examine the element of causation.
… it is necessary for the Tribunal to undertake the artificial exercise of determining how the Respondent would have treated a hypothetical person, who did not have the Applicant's disability, in circumstances which are comparable to those in which the Respondent treated the Applicant. The findings about treatment of the 'hypothetical comparator' are then compared with the findings about the treatment of the Applicant. This exercise effectively results in the elements of differential treatment and causation being merged in 'hypothetical comparator' cases for a Tribunal could only find that a person without the Applicant's disability would have been treated more favourably than the Applicant if a reason for the treatment complained of by the Applicant was his/her disability.
79 Causation According to the Applicant, Mr Crouch asserted he was not a fit and proper person, made derogatory remarks about, among other things, his sexuality and mental health, and demanded his resignation.
80 In our view if accepted, this evidence could support a finding that one of the reasons Mr Crouch treated the Applicant as he did was because he thought the Applicant to be homosexual or to suffer from a disability or both.
81 Less favourable Treatment To determine whether there is any evidence of less favourable treatment, we need to identify the relevant circumstances in which to sit our notional comparator. The Respondent contends that the relevant circumstances are that the Club was dealing with a member who defaulted in his accounts and had not disclosed his bankruptcy.
82 The Applicant’s own evidence reveals that before the meeting with Mr Crouch there had been some difficulties with the payment of his house account. (See statements issued by the Club for the period January 2000 to March 2001 (Exhibit R 23).) The Applicant claimed that the late payment of the March 2001 account was caused by an administrative error on the part of the Club but, in any event, was promptly rectified. His evidence was that as at 24 April his house account was paid in full.
83 On the Applicant’s account there is nothing to indicate that he was summoned to meet Mr Crouch on 24 April because he was not in good financial standing with the Club. Ms Eastman contends that while the Applicant's evidence is to be taken at its highest this does not mean that the Tribunal can ignore evidence before it of the Respondent's explanation of its action known by the Applicant at the time.
84 Ms Eastman’s submission raises the issue of whether in proceedings brought under s 111(1) regard should be given to any material that could be said to be favourable to the Respondent that is included in the President’s report. It is difficult to see how the Tribunal could, on one hand, take the Applicant’s case at its highest but at the same time take into account material, which may be favourable to the Respondent, received through the President’s report.
85 Either way, however, the Respondent’s answer to the President simply does not address why Mr Crouch demanded the Applicant’s resignation. In a letter dated 20 August 2001 to the President, Mr Spokkreeff confirms that the Applicant was asked to resign, denies any reference to the Applicant’s sexuality or being “mentally unstable” and asserts that the complaint is without foundation. No mention is made of the Applicant falling behind in payment of his house account.
86 Accordingly, the relevant comparator for the purpose of this application must be seen as a member of the Club not thought to be homosexual and without the Applicant’s disability. To refine the comparison, as urged by Ms Eastman, would in effect require us to take into account evidence favourable to the Respondent.
87 We have before us no evidence of the manner in which Mr Crouch treated members of the Club, apart from the Applicant. For all we know he may have made it a practice to verbally attack individual members. In our view there is some evidence which could support a finding that the treatment afforded the Applicant at the 24 April meetings was less favourable than that which would have been afforded a member thought to be heterosexual and not suffering from the Applicant’s disability. We note, in particular, the disability- and sexuality-based nature of the alleged abuse.
88 Conclusion Accordingly, the Respondent’s application in respect to that part of the first complaint relating to the meeting of 24 April meeting is dismissed.
Incident 2: Attempts to exclude Mr Humby from the Club
Evidence
89 Since the alleged June 2000 assault, the Applicant was accompanied at the Club at all times by Mr Humby, who also shared his room. Mr Humby was not a Club member.
90 The Applicant’s evidence was that following the 24 April meeting, Mr Spokkreeff and Mr Crouch demanded that Mr Humby leave Club premises. According to the Applicant, the 24 April meeting was the first time Mr Humby’s attendance at the Club had been questioned. He claimed that he had told former club secretary, Dan Goodall that following the June 2000 assault, it was necessary for Mr Humby to accompany him at all times. He claimed that he had an understanding with Mr Goodall that Mr Humby would remain at the Club on that basis.
91 Clause 37 of the Club Rules provides: “Guests may be entertained by members of the Club at the invitation of a member in accordance with the By-laws and the Clubs Act. The name and address of the guest shall be recorded in a register kept for that purpose”
92 Was the Applicant subjected to a detriment? Despite being asked to leave, Mr Humby continued to attend the Club in the company of the Applicant until August 2001. Can it be said that this constitutes a detriment?
93 Club members enjoyed certain benefits, including the right to invite guests to the Club apparently without restriction. An attempt to exclude a guest could represent a withdrawal or limitation of a benefit of Club membership.
94 In our view, it would be open to us to make a finding that the attempt/s to exclude Mr Humby from the Club constituted a detriment.
95 Causation On the Applicant’s account, the stated reason Mr Humby was asked to leave the Club was because he was “staff” and not a Club member. Apparently at one time there had been a rule prohibiting staff from using the Club’s facilities. No such rule was in force during the relevant period.
96 There is no direct evidence that Mr Crouch wanted Mr Humby to leave because of the Applicant’s perceived sexuality or disability or both. However taking the Applicant’s evidence at its highest, we conclude that it would be open to us to infer that one of the grounds (not necessarily the dominant ground) Mr Humby was asked to leave was because the Applicant was perceived by the Club, through Mr Crouch, to be homosexual and to suffer from a disability. In reaching that conclusion we take into account the following:
97 Less Favourable Treatment Again there is no evidence of an actual comparator. Accordingly, we must ask whether there is any evidence on which to base a finding that a heterosexual member (or one thought to be) and/or a member who was without the Applicant’s disability, would have been subjected to more favourable treatment.
The evidence that Mr Humby was asked to leave the Club shortly after the 24 April meeting;
The evidence that Mr Crouch demanded the Applicant resign because he was not a fit and proper person;
The evidence that Mr Crouch was of the view that the Applicant was not a fit and proper person because, among other reasons, he suffered from a disability and was thought to be homosexual;
The absence of any Club rule that a member is unable to include an employee among his invited guests.
98 A final determination of this issue would require us to examine, among other things, Club policy and, perhaps more importantly, practice concerning the use of Club premises by members’ employees. At this stage we have no evidence before us on this point.
99 In our view, it would be open to us to find that the treatment afforded the Applicant was less favourable. In reaching that conclusion we take into account Rule 37 and the evidence of Mr Goddall’s purported consent.
100 Conclusion Accordingly the Respondent’s application in respect to this part of the first complaint is dismissed.
Incident 3: Refusal to use Applicant’s asserted title
Evidence
101 The Applicant, through his solicitors, wrote to the Club by letter dated 22 May 2001, outlining the basis of his claim to the title “Lord Battenberg”. In that letter it was asserted that the Applicant was originally known as “Lee” but “due to a recent legal agreement with certain families his surname had been appropriately altered to Battenberg.” It was explained that upon attaining the age of 21, pursuant to a deed of settlement, the Applicant’s natural family 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 Respondent was invited to inspect the deed of settlement. Further details about the asserted title were set out in a letter to the Club from the Applicant’s solicitors dated 13 July 2001.
102 The Applicant gave evidence that he had been known and addressed in the Club as “Lord Battenberg” for a significant (but unspecified) period. Monthly accounts from December 1999 were issued to him in the name of “Lord Andrew Battenberg, Baron of Craigstown”.
103 By memo dated 15 June 2001, Mr Spokkreeff directed staff not to address the Applicant as “Lord Andrew”. Club staff began to address the Applicant as “Mr Battenberg”, sometimes in front of guests and other members. The Applicant found this to be embarrassing and humiliating.
104 The Applicant said he raised this with Mr Spokkreeff who said “ We don’t want you or Ian [Humby] here.”
105 Was the Applicant subjected to a detriment? In our view, persistent failure to use a person’s preferred form of address could constitute a detriment. However, it would be difficult to see how the necessary quality of loss or damage, central to the concept of detriment, could be made out if it were established that the preferred form of address was a misrepresentation. For example, if it were shown that the addressee claimed to occupy a position he or she did not in fact hold, such as the office of Commissioner of Police, or claimed to have been raised to the peerage when he or she had not been, there could be no detriment to that person in another refusing to call the addressee “Commissioner” or by his or her falsely asserted title, as the case may be.
106 The Applicant’s evidence is that his title was conferred upon him by means of a deed of settlement and the Club was invited to inspect that document on a confidential basis but had not done so. The Applicant also relies on evidence that various bodies and organisations including the Governor-General, in official communications addressed him as “Lord Battenberg”.
107 The Applicant’s claim about his purported title is largely uncorroborated. It may be that on closer scrutiny, the Applicant is not so entitled and does not hold such title. However, on the evidence thus far there would appear to be some basis on which to base a finding that the Applicant had such entitlement.
108 Accordingly, there is some evidence from which we could conclude that the Club subjected the Applicant to a detriment.
109 Causation Is there any evidence that one of the reasons Mr Spokkreeff instructed staff members not to refer to the Applicant as Lord Battenberg was because he was perceived to be homosexual or suffer from a disability, or both?
110 This conduct cannot be seen in isolation. It must be seen in the context of the Club President making it known in blunt terms that the Applicant was unwelcome and considered an unsavoury character for reasons that included his perceived sexuality and disability. In our view there is some evidence which could support a finding that one of the reasons staff were instructed not to refer to the Applicant by his usual address was because he was thought to be homosexual and / or suffer from a disability.
111 Less Favourable Treatment Again, there is no evidence of a comparator. In our view, the evidence could support a finding that the instruction to staff that they were not to address the Applicant by his preferred manner of address could constitute less favourable treatment.
Second Complaint
Evidence
112 Rule 16(b) of the Constitution provides that a member shall cease to be a member if he becomes bankrupt.
113 The Applicant was declared bankrupt on 19 May 1997. By letter dated 11 April 2001, the Applicant’s solicitors advised the Club that the bankruptcy had been annulled on 23 March 2000. In that letter it was asserted “the bankruptcy was annulled void ab initio which operates as if no bankruptcy had ever taken place.”
114 In April 2001, according to the Applicant, Mr Spokkreeff told him he had become aware that he was a bankrupt. According to the Applicant, he replied that the bankruptcy had been annulled and invited Mr Spokkreeff to verify this with his lawyers.
115 The Applicant’s evidence was that at about the time he was declared bankrupt, former Club Secretary, Dan Goddall, approached him and inquired about his “case to have the bankruptcy annulled”. According to the Applicant, he replied, “The order against me was made by accident. I am going to take action against solicitors and others and I intend to appeal.”
116 By letter dated 16 August 2001, Mr Spokkreeff notified the Applicant that, by virtue of the operation of clause 16(b) of the Rules of the Club, he had ceased to be a member of the Club from the date he was declared bankrupt. The letter said, first, that the Club had not become aware of the Applicant’s status as a bankrupt until about April 2001; and, second, that it had received legal advice to the effect that the subsequent annulment of the bankruptcy had no relevance to the proper construction of clause 16(b). The letter concluded: “I must ask you to immediately vacate the Club. You may not use the Club except as a guest of a member…”
117 In his statement, the Applicant claims that in about July 2001 Mr Spokkreeff approached him and said he wished to discuss a Club matter, to which the Applicant replied, “I am not prepared to, I have taken action with the Anti-Discrimination Board...Any discussion is through my solicitors.” In cross-examination, the Applicant said that he told Mr Spokkreeff he intended to take “legal proceedings” but conceded he made no express mention of the Board or alleged discrimination but contended that would have been obvious from the context.
Findings and conclusions
118 The Applicant asserts that the Club’s decision to terminate his membership was taken because he had made a complaint of discrimination, and as such is unlawful by the operation of s 50 of the Act.
119 In Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808, the former Equal Opportunity Tribunal set out at p 78 what it described as the four-fold elements of victimisation. "Firstly, the Respondent must have caused the Applicant to undergo or experience something. Secondly, the Applicant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraph (a) to (d) of Section 50(1). Fourthly, it must appear that the Applicant did one of the things referred to in sub-paragraphs (a) to (d).”
120 On the Applicant’s evidence, it would appear that the first two elements are capable of being satisfied. The Club caused the Applicant to undergo or experience something, namely advising him that his membership of the Club had ceased. This, in our view, is capable of constituting a loss or detriment.
121 The real issue for determination is whether the Club terminated the Applicant’s membership on the grounds that he had, or intended to do, one of the things set out in paragraph (a) to (d) of s 50(1), or alternatively, suspected he might. The Applicant needs to establish that the fact he had complained “had a real causative effect in the sense that but for its presence the decision to terminate his membership (or advise him that it had ceased) would not have been made”. (See Sivananthan v Commissioner of Police, New South Wales Police Service at [43] and Kennedy v Director-General, NSW Department of Industrial Relations [2002] NSWADT 186 at [167].)
122 It is useful at this point to briefly restate the history of both complaints. The first complaint was lodged on 18 July 2001, the second on 16 August 2001. The President notified the Club of the first complaint by letter dated 17 August 2001 and of the second on 21 August. The letter notifying the Applicant that his membership had ceased was dated 16 August 2001. From this chronology, it is apparent that the Club was not notified of the Applicant’s complaint though the Board until the day following the termination letter.
123 It is, of course, not necessary to establish that the Club knew through the Board that the Applicant had, or intended to, lodge a complaint of discrimination. It is enough that it be established that the Club was aware of that fact by some other means.
124 The Applicant in his statement attests that he told Mr Spokkreeff he made a complaint to the Board before 16 August. This claim is apparently inconsistent with the account given in cross-examination. However, in determining a s 111(1) our task is not to sieve through the Applicant’s evidence and draw conclusions on any apparent inconsistencies. Rather, we are obliged to take the Applicant’s evidence at its highest. On that basis, we conclude that there is some material on which to base a finding that the Club, through Mr Spokkreeff, knew that the Applicant had, or intended to, make a complaint to the Board.
125 It is not enough that the Applicant point to some evidence that may indicate that the Club, through its officers or employees, knew a complaint of discrimination had been or might be made. There must be some evidence that the Club acted on that knowledge.
126 The stated reason the Respondent took the action it did was that it had legal advice that the annulment of the Applicant’s bankruptcy did not negate the operation of rule 16(b). It may be, on final analysis, that this apparently innocent and plausible explanation is accepted. However, for the purpose of this exercise we are obliged to ask whether there is any evidence to support a finding that the Club acted as it did on the grounds that the Applicant had, or intended to, make a complaint of discrimination. While there is no direct evidence of this, after careful analysis we conclude that there is some evidence that, if accepted, could support such inference being drawn. First, there is evidence that the Club, through Mr Goddall, had knowledge of the bankruptcy since 1997 but took no action until August 2001; second, there is evidence that the Club had before it legal advice that the annulment had voided the bankruptcy; third, there is evidence that prior to 16 August the Applicant told the Club that he intended to take the matter to the Anti-Discrimination Board. The issue would appear to be not whether it was reasonable for the Club to rely on its own legal advice but rather why it took no action earlier, or until this particular time, even though it had known of the fact of the bankruptcy for some time.
127 As we are satisfied that there is some evidence of the four elements necessary to establish a claim under s 50 of the Act, the Respondent’s application in relation to the second complaint must be dismissed.
Orders
1. The application is dismissed.
2. Matter to be set down for hearing at dates to be fixed by the Registrar.
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