Brala v Cabramatta Golf Club Limited

[2020] NSWCATAD 217

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Brala v Cabramatta Golf Club Limited [2020] NSWCATAD 217

Hearing dates:

24 June 2020; 16 July 2020 (final submissions)

Date of orders:

3 September 2020

Decision date:

03 September 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

A Britton, Principal Member

Decision:

Leave for the complaint to proceed under s 96(1) of the Anti-Discrimination Act 1977 (NSW) is refused.

Catchwords:

HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave

EQUAL OPPORTUNITY — discrimination by registered club — whether impugned conduct falls within s 49M or s 49O of the Anti-Discrimination Act 1977

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Registered Clubs Act 1976 (NSW)

Cases Cited:

None cited

Texts Cited:

None cited

Category:

Procedural and other rulings

Parties:

Anthony Brala (Applicant)
Cabramatta Golf Club Limited (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Pigott Stinson Lawyers (Respondent)

File Number(s):

2020/00121238

Publication restriction:

Nil

REASONS FOR DECISION

1. In August 2018, the Board of Directors of the Cabramatta Golf Club Limited (respectively “the Board” and “the Club”) terminated Mr Anthony Brala’s membership of that Club. The stated reason for that decision was Mr Brala’s conduct at the Club’s 2018 Annual General Meeting. Mr Brala was a “social member” of the Club. Under the Club’s constitution, only “Full Playing Members” and Life members are entitled to attend and participate in the Club’s AGM.

2. In April 2019, Mr Brala lodged a complaint (the Complaint) with the President of the NSW Anti-Discrimination Board (the President) alleging that in contravention of the Anti-Discrimination Act 1977 (NSW) (the Act), the Club had discriminated against him on the ground of disability. Mr Brala’s primary complaint was the decision by the Club to terminate his membership. In addition, he alleged that the Board failed to investigate his complaints of being bullied and harassed by staff and members of the Club.

3. After investigating the Complaint, the President exercised the discretion to decline the Complaint, on the ground that it was “lacking in substance”: s 92(1)(a)(i) of the Act. At Mr Brala’s request, the President referred the Complaint to the NSW Civil and Administrative Tribunal (NCAT) as required by s 93A of the Act.

4. Because the President has declined the Complaint, it cannot proceed without leave of the Tribunal: s 96(1) of the Act. Mr Brala urges the Tribunal to grant leave, submitting that there was substance to the Complaint. The Club disagrees and urges the Tribunal to refuse leave.

5. I have decided not to grant leave for the Complaint to proceed for the reasons that follow.

Statutory framework and principles governing the grant of leave

6. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.

7. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation, the President is satisfied that the complaint is lacking in substance, he or she may decline the complaint, in whole or in part: ss 92(1)(a)(i) and 92(1)(a)(ii) of the Act. A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is “not reasonably arguable”: Langley v Niland & Anor (1981) 2 NSWLR 104 at 107; Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [45]; Alchin v Rail Corporation NSW [2012] NSWADT 142 (Alchin) at [26].

8. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.

9. Where a complaint is referred to the Tribunal at the request of the complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.

10. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

Discrimination in the area of registered clubs and services on the ground of disability

Statutory framework

11. The Club is a “registered club” under the Registered Clubs Act 1976 (NSW). Section 49O of the Act makes it unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of disability:

49O Registered clubs

…

1. It is unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of disability—

   (a)   by denying the person access, or limiting the person’s access, to any benefit provided by the registered club, or

   (b)   by depriving the person of membership or varying the terms of the person’s membership, or

   (c)   by subjecting the person to any other detriment.

   12. Section 49M(1) of the Act makes it unlawful for a person who provides, for payment or not services to discriminate against a person on the ground of disability:

49M Provision of goods and services

(a)   by refusing to provide the person with those goods or services, or

(b)   in the terms on which he or she provides the person with those goods or services.

13. Section 49B of the Act explains what constitutes discrimination on the ground of disability:

1. A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator:

(a)   on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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)    requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

1. 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.

…

14. If an act is done for two or more reasons and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.

15. Disability is defined by s 4 of the Act to include the partial loss of a person’s mental functions or illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. Section 49A expands the definition of disability to include past, future and presumed disability.

Background facts

16. According to Mr Brala, on joining the Club in 2007 he immediately noticed a sense of arrogance and hostility towards members of “lower social standing”. He alleges that he was subject to “scrutiny and verbal abuse” about his “character, social representation and golf play”.

17. In addition, he alleges that he was:

• continually hounded about being a “slow player”;

• subjected to racial slurs and vilified for his religious beliefs;

• verbally abused hundreds of times;

• denied access to the course and the member competition rounds;

• subjected to a sense of hostility by Club staff and on one occasion falsely accused of engaging in sexual activities;

• subjected to character assassination;

• repeatedly spoken to by three members of the Board in a vile and verbally abusive manner.

18. In a letter to the President responding to the Complaint, the Club’s General Manager stated that Mr Brala:

1. elected to join the Club as a social member. Under the Club’s constitution, social members have no golfing rights nor are they entitled to attend or vote at the Club’s AGM. Only “Full Playing Members” and “Life members” are entitled to use the Club’s golf course and participate in AGMs;

2. not only attended the Club’s 2018 AGM but attempted to raise matters at that meeting. Mr Brala took offence when told he was “out of order” and to sit at the back of the room and be quiet. A heated discussion ensued between Mr Brala and members at the AGM. Mr Brala was asked to leave the Club’s premises. The following day his membership was suspended;

3. had never disclosed to the Board that he had a disability. Members of the Board were not aware that he had a disability.

Is the conduct about which Mr Brala complains unlawful discrimination on the ground of disability?

19. In determining whether leave should be granted for the Complaint to proceed, it is necessary to first consider whether the conduct about which Mr Brala complains is capable of falling within a substantive provision of the Act. This is because the Act does not make unlawful all discriminatory conduct. As Basten JA explained in Commissioner of Police v Mohamed [2009] NSWCA 432 at [23], the underlying structure of the Act is “not to prohibit all forms of discriminatory conduct, even where such conduct is antithetical to internationally recognised human rights and fundamental freedoms, but to identify specific grounds of discrimination, which are prohibited in specific areas of social activity”.

20. The conduct the subject of the Complaint falls into two categories:

1. the Club’s decision to terminate Mr Brala’s membership;

2. the alleged failure of the Board to deal with Mr Brala’s claimed complaints of “bullying and harassment” by other Club members.

21. The decision to terminate Mr Brala’s membership appears capable of falling within s 49O(2)(b) of the Act (“depriving the person of membership”). The alleged failure of the Board to deal with Mr Brala’s complaints about the claimed bullying and harassment by other members appears capable of falling within s 49O(2)(c) (“subjecting the person to any other detriment”) and s 49M(b) (“refusing to provide … services”).

Cast as a complaint of “direct discrimination” is the complaint lacking in substance?

22. In determining whether to grant leave for the Complaint to proceed, I will consider whether there is some material which, if accepted, might establish the elements of a claim of unlawful discrimination on the ground of disability. In undertaking that task, I have not restricted my consideration to the material provided by Mr Brala to the Board but have also taken into account the material provided by Mr Brala to NCAT together with verbal claims he made during the leave hearings.

23. Cast as a complaint of direct discrimination (s 49B(1)(a)) Mr Brala must establish that:

1. he has, had or is thought to have or had a disability;

2. in terminating his membership / failing to consider his complaint(s), the Club treated him less favourably than it treated, or would have treated, a member without his disability, or the disability he is thought to have, or to have had in the past, in the same circumstances, or in circumstances which were not materially different (less favourable treatment);

3. one of the reasons for any less favourable treatment was Mr Brala’s disability, a characteristic that generally appertains to, or is generally imputed to, persons with Mr Brala’s disability (causation).

The decision to terminate Mr Brala’s membership

24. In these proceedings, Mr Brala claims that he has, and told several members of the Club that he has, depression.

25. Mr Brala does not dispute that he raised several issues at the Club’s 2018 AGM and was “ruled out of order”. Nor does he dispute as claimed by the Club that as a social member he was not entitled to attend or participate in the Club’s AGM. In addition, he concedes that he was involved in a “heated verbal exchange” at the 2018 AGM and was asked to leave.

26. At the leave hearing on 24 June 2020, Mr Brala conceded that the Club would probably deny any social member the opportunity to ventilate issues at an AGM. He also appeared to concede that the reason his membership of the Club was terminated was because he continued to speak at the AGM after being told he was not entitled to do so. He was unable to point to any material which might support a finding that a social member without his disability who attempted, as he had, to raise issues at an AGM would have been permitted to do so. Nor did he point to material which might support a finding that one of the reasons the Board terminated his membership of the Club was because he had, or was thought to have, depression.

27. On the available material it is not reasonably arguable that one of the reasons the Board terminated Mr Brala’s membership was because he had or was thought to have a disability. Nor is it reasonably arguable that he was subject to less favourable treatment.

The Board’s alleged failure to deal with Mr Brala’s complaints

28. At the leave hearing on 24 June 2020, I raised with Mr Brala that it was unclear whether the complaints he made to the Board, fell within the period of the Complaint, that is, 1 January 2017 to 31 August 2017. In the Complaint, Mr Brala refers to the period about which he complains as being “2007 to date”.

29. I invited Mr Brala to provide material in support of his claim that during the period of the Complaint as determined by the President, he made numerous complaints to the Board about his treatment by staff and other members during the period of the Complaint. In submissions made in answer to that invitation, Mr Brala identified two complaints that fell within that period.

First complaint

30. According to Mr Brala, he made his “first complaint” to the Club about two months before the 2018 AGM. In that complaint he alleged that a member had been hostile towards him calling him, “the specialist”. He said after making that complaint the member’s father warned him not to get his son “into trouble”. In addition, Mr Brala claims that the father “tried to argue his point that [his son] would call me “the specialist” due to having endearment for me”.

31. After investigating that complaint, the Club took no further action, concluding that the reference to Mr Brala being a “specialist”, was a reference to Mr Brala’s perception of his golfing ability and the unsolicited golfing advice he gave to other members.

32. In my view, it is not reasonably arguable that the Club refused to provide Mr Brala a service (s 49M(b)). The Club accepted and investigated the complaint.

33. Assuming that by failing to take action in relation to that complaint, the Club subjected Mr Brala to a detriment” (s 49O(2)(c)), in my view it is not reasonably arguable that one of the reasons for that treatment was that Mr Brala had or was thought to have a disability. Relevantly, Mr Brala does not suggest that by using the term “the specialist”, the member about whom he complained was referring to his disability. Nor does he claim that he told the Club that it was the reason for the comment. The substance of the complaint is that Mr Brala was dissatisfied with the outcome of the Board’s investigation. The available material does not support the inference being drawn that one of the reasons the Club failed to act was because Mr Brala had or was thought to have a disability.

Second complaint

34. Sometime before the 2018 AGM, Mr Brala requested and was given permission by the Club’s General Manager to use the Club’s practice putting and chipping green. According to Mr Brala, four weeks later “disgruntled club members had a problem with me using the practice area”. He claims that when approached on the green by the Club captain and asked whether he was considering joining the Club as a full playing member, he stated he could not give a “definite answer”. Mr Brala claimed that a few days later he was advised by Club staff that he was no longer permitted to use the green. He then made a complaint to the Board. He claims that at a meeting with three representatives of the Board, apparently held shortly before the AGM, he sought to “re-establish a [past] complaint” about another member. He claims that the Board’s representatives “took no action” because of “incompetence”. In addition, Mr Brala claims that at that meeting he told the representatives that he had a disability and took medication.

35. The Club agrees that Mr Brala met with representatives of the Board shortly before the AGM. According to the Club, that meeting was initiated by the Club Captain and CEO because Mr Brala had “reacted negatively” to being told he could no longer use the practice putting area. The Club claims that permission to use that area was withdrawn after members complained that Mr Brala was giving unsolicited advice about golfing and monopolising the green.

36. The Club disputes that at that meeting Mr Brala sought to reventilate the earlier complaint. According to the Club, that complaint was made in May 2016 and involved a disagreement about Mr Brala’s “pace of play”. The Club claimed that it found no evidence of the allegation made by Mr Brala in these proceedings, of the member attempting to “brutally bludgeon” Mr Brala.

37. For current purposes I accept Mr Brala’s account of that meeting. Mr Brala does not allege that the 2016 incident related to his disability or to the member’s perception of his disability. Nor does he allege that the reason the directors failed to revisit the 2016 complaint was because he had or was thought to have a disability. This part of the Complaint is misconceived.

Cast as a complaint of “indirect discrimination”, is the complaint lacking in substance?

38. For the conduct about which Mr Brala has complained, to succeed as an claim of indirect discrimination under s 49B(1) (b) of the Act, Mr Brala must establish that:

1. The Club imposed a requirement or condition; and

2. He was unable to comply with that requirement or condition; and

3. A substantially higher proportion of members without his disability comply or are able to comply with that requirement or condition; and

4. The requirement or condition was not reasonable having regard to the circumstances of the case.

39. Mr Brala has not identified a requirement or condition imposed by the Club with which he was unable to comply. Nor does the available material disclose any relevant requirement or condition. In my view, it is not reasonably arguable that cast as indirect discrimination, the Complaint could be established.

Conclusion

40. Taking Mr Brala’s allegations at their highest I am not persuaded that the Complaint is reasonably arguable. It is both misconceived and lacking substance. It would not be fair and just to permit the Complaint to proceed.

Order

1. Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 03 September 2020