Brown v Bourke Bowling Club
[2012] NSWADT 248
•29 November 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Brown v Bourke Bowling Club [2012] NSWADT 248 Hearing dates: 15, 16, 17 May 2012 Decision date: 29 November 2012 Jurisdiction: Equal Opportunity Division Before: J Conley, Judicial Member
J Newman, Non-Judicial Member
P Smith, Non-Judicial MemberDecision: 1. The complaint is substantiated.
The Respondent is to pay the Applicant the sum of $8,000 within 28 days from the date of these reasons.
2. The respondent is to provide a written apology to the applicant for discriminating against her on the grounds of her Aboriginality within 28 days from the date of these reasons.
Catchwords: Race Discrimination - Registered Clubs Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Qantas Airways v Gama [2008] FCAFC 69;
Burns v Laws (EOD) [2008] NSWADTAP 32; Chand v Rail Corporation of NSW (No2) [2009] NSWADTAP 27; Commissioner of Corrective Services v Aldridge [2000] NSWADTAP5; Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP6; Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92; Hollows v Macquarie University [2009] NSWADT 23 (6 February 2009); Dutt v Central Coast Area Health Service (2002) NSWADT 133; Edwards v Bourke Bowling Club Limited [2000] NSWADT 31; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; Jones v Dunkel (1959) 101 CLR 298 at 308; Hall v Sheiban (1985) ALR 503 at 543; Sharma v. QS Pty Ltd t/as KFC Punchbowl [2010] NSWADTAP 22Category: Principal judgment Parties: Patricia Brown (Applicant)
Bourke Bowling Club (Respondent)Representation: Counsel
P Battley (Applicant)
Mr Dalzell (Respondent)
Legal Aid NSW (Applicant)
Lovett & Green Pty Ltd (Respondent)
File Number(s): 101108
Judgment
Background
Ms Patricia Brown is an Aboriginal woman. She alleges that the respondent the Bourke Bowling Club (the Club) is a Registered club and it discriminated against her on the grounds of her race, (her Aboriginality). It is alleged that the Club is vicariously liable for the acts of it's employees.
Ms Brown lodged a complaint on 9 March 2010 with the Anti-Discrimination Board (the ADB). As the complaint was unable to be resolved it was referred to the Administrative Decisions Tribunal (the Tribunal).
Ms Brown previously made a claim of race discrimination to the Anti-Discrimination Board. The Deed of Release precluded the Respondent relying upon incidents of alleged misconduct by Ms Brown at the Club relating to the Deed.
The Procedure
The matter initially came before the Tribunal and the applicant sought and was granted an adjournment. The matter was then heard by the Tribunal over a period of three days. Affidavits of evidence were relied upon by the applicant and the respondent, which were adopted and admitted into evidence. Oral evidence was given by the applicant's and respondent's witnesses. At the request of the parties legal representatives, the Tribunal together with the legal representatives for both parties attended the site to view the layout of the respondent's premise.
The Applicant's Evidence
Ms Brown's evidence is that she has been a member of the Bourke Bowling Club (the Club) for 16 years. Ms Brown is also known by the nick-name "Bo". She commenced previous proceedings for discrimination and victimisation in the Tribunal against the Club and those proceedings were resolved by way of settlement dated 30 March 2007. The Tribunal determined that the Deed of Release precluded the respondent relying upon incidents involving the applicant prior to 30 March 2007.
In relation to the incidents the subject of this claim, Ms Brown alleges that the Club discriminated against her on the grounds of her race when the Club Board of Directors (the Board) imposed a two year suspension of her Club membership. The suspension was in respect of events occurring on 4 March 2009. The matter came before the Board on 15 March 2009, however was postponed to 17 March 2009 due to a lack of Board members at the meeting as some Board members were required to leave the meeting to play bowls.
Ms Brown was at the Club on 4 March 2009 and was sitting with Margaret Edwards in the designated smoking area of the Club. Ms Brown was on her mobile phone to her niece Anne Brown, who was visiting Bourke at the time and at her house. Ms Patricia Brown rang Ms Anne Brown to advise her that Mr Kevin Knight, Ms Brown's husband was about to arrive home. During the phone conversation she told Ms Anne Brown, "Fuck off from my home, before Kevin gets home". Ms Patricia Brown's evidence is that she replied, "Kevin will be home soon, you need to get those girls and fuck off out of my house, Kevin won't like it if he comes home and you and your girls are drinking" and Ms Anne Brown agreed to leave.
Ms Brown's evidence is that Mr Shane Smith, an employee of the Club, came up to her and said "Bo stop swearing". She told him, "I'm only talking to Anne on the phone, to tell her to get out of my home before Kevin gets home". He then walked away. She claims that there was no-one else was in the area and the only person within hearing range was Shane Smith. The applicant claims that Mr Smith treats "the blackfellas" differently.
At about 9:30pm Mr Smith asked her to leave and said, "You've had too much to drink, you have to leave". In relation to the "argument" recorded outside the Club with Mr Smith her evidence was that she told Mr Smith that she would be making a complaint against him to the Club Board. She claimed that he had been making up lies about her and singling her out. She claims that she then left and caught the courtesy bus home.
Ms Brown claims that the next day she was advised by Phil Kavanagh that her membership had been suspended and she was required to appear before the Board for disciplinary proceedings. She told him about the phone call and said that she did not feel like facing the board over nothing and had had enough. She claims he advised her that if she was not going to attend the Board meeting, then she should write to the Board. She was notified in writing that the matter was to come before the Board on 15 March 2009 and was advised that her membership was suspended in the interim.
Ms Brown states that she did not attend the Board meeting, instead she wrote a letter to the Board of Directors. She noted that the incident involved a phone conversation on her personal mobile while outside in the smoking area. She was approached by Shane Smith about swearing. She wrote that she was in the company of Margaret Edwards. She wrote that the call was to her niece about an apparent party at her residence which she had no knowledge of. She swore in general conversation and there were no other patrons within earshot. She was then approached by Shane Smith about swearing. Critically she writes,
This is not the first time I have been made to feel as though being (sic) singled out by Shane and I believe I am being harassed and unfairly treated.
There have been several instances of drunken abusive behaviour, fighting and swearing in the immediate presence of staff but have gone unmentioned. I ask you why the staff pick and choose who they will be reporting to the board as this is not fairness or equal opportunity. Your surveillance video should be more frequently viewed.
Ms Brown concluded that she felt very intimidated by having to present to the Board over a minor discrepancy and would not be in attendance. The Minutes of the Special Meeting of 17 March 2009 recorded that "P Brown sent a letter to the board read by V Bartley stating her Case and not attending the meeting. Two (2) years. Resolved." On 18 March 2009 the Club wrote to Ms Brown and advised her membership had been suspended for 2 years from the date of the meeting for unacceptable behaviour.
Ms Brown's evidence is that she has not entered the Club since that time. She has spent many nights at home. She has also spent a lot of time travelling to Cobar, Brewarrina and Lightning Ridge so that she could socialise and have a game of Keno and Pokies. She claims she has felt very isolated and upset, especially when family and friends go to the Club while she has to sit at home. She gave evidence that there are only two pubs in Bourke, the Royal and the Oxford, neither of which has Keno or poker machines.
By way of background to the incidents on 4 March 2009, there had been prior incidents requiring Ms Brown to appear before the Board for disciplinary matters. Ms Brown claims that on 7 February 2009 she was at the Club waiting for the raffle to be announced at 7:30pm. She claims she had drunk two beers prior to going to the bar. Shane Smith was at the bar and refused to serve her because he claimed that she had "had enough". She told him to ask the other staff who served her to confirm that she had only had two beers. He insisted she had had enough. She told him, "I'm going to put in a complaint about this Shane" and he responded "Not if I put one in first". Ms Brown claims that she put in a complaint about Mr Smith to the Board. She then received a letter to come before the Board and her membership was reinstated.
There had also been a previous incident on 25 August 2007. Ms Brown's evidence is that on that night she had reported to Club staff on a number of occasions that she was concerned for her safety, because Ms Melinda Dixon had been pushing her while she was seated and while she was dancing. Her evidence is that she was involved in a physical altercation outside the Club, after Christine Dixon the cousin of Ms Melinda Dixon tried to hit her. She was taken home by Police with no charges laid. Her evidence is that on this occasion the Board did not suspend her, but she did receive a severe warning. Ms Brown's evidence is that Liam Rice conceded at the Board Meeting that Ms Melinda Dixon should have been asked to leave earlier.
The applicant relied upon the records of incidents recorded in the Incident Book and the Minutes of the Board meetings in relation to penalties imposed for incidents. The applicant also produced a comprehensive "Evidence Table" which is an extract and reference to the relevant incidents which are contained in the Incident Book and the Minutes of the Board. This table included extracts relating to Aboriginal and non-Aboriginal persons and penalties imposed. The applicant relied upon the records in relation Mr Peter (aka "Pecker") Woods Jnr and Mr Peter Woods Snr.
The applicant relies upon an incident involving Peter Woods Jnr on 19 March 2008. The incident initially involved Mr Peter Woods trying to re-enter the Club. A staff member recorded in the Incident Book that Mr Peter Woods was "swearing, and being argumentative and threatening me and pushing me" while the courtesy bus was waiting for him. He was told to get on and was abusive. His father was on the bus telling him not to be silly. He then "went silly" and attacked his father a number of times and the member of staff. The Police were called and he continued to threaten staff and others. An ambulance was called for Mr Peter Woods Snr as his shoulder was injured. Mr Peter Woods Snr complained about his son being served straight rum. There was no attendance before the Board for this incident.
A further incident involving Peter Woods Jnr is recorded in the Incident Book on 4 January 2009. At 6:00pm it was recorded that Peter "Pecker" Woods was refused service and was swaying at the bar. He was talking about the "black cunts" who were drunk the previous night and wouldn't leave. He called staff a "mob of dogs". He kept saying "black cunts" were drunk in the Club all the time. It was recorded in the Incident Book that he did not leave when asked and that "it was an absolute disgrace".
It was reported in the Incident Book that Peter Woods Jnr had not left the Club since the morning and had been "drinking Southern Comfort all day until now", and finally left at 6.20pm after a lot of arguing.
He was reported in the Incident Book by Judy Lack to have been in the main bar area drinking until he went into the TAB area and argued with Mick Waters. He was advised to leave and asked to go back to the main bar. He remained in the TAB area when Judy Lack went on her tea break.
At 5:16pm the following day, 5 January 2009, the staff member "Bonka" recorded a further incident involving Peter Woods Jnr. He recorded that Steve Chown came to the bar and advised him that that Peter Woods said that if he gets barred because of him he will "kill me" and Mick Waters.
The Board Minutes indicate that the disciplinary incidents were read out and Peter Wood Jnr agreed they were correct. He apologised for his behaviour and asked for a second chance. It was noted that a Board member was offended at being called "black cunts". For these incidents he received a 6 month suspension of his membership.
Subsequent to the applicant's suspension there was a further incident involving Peter Woods Jnr. Mr Frank Hollman recorded in the Incident Book on 6 October 2010 that Mr Ian Monaghan (an Aboriginal member of the Club) was observed to have been injured and bleeding. He made a claim at the time that he was "king hit" by Peter Woods Jnr in the toilets. It was recorded by Mr Frank Hollman that he over-heard Mr Woods state "I'll probably get barred for this now". For this incident the Board imposed a penalty of a severe warning.
The applicant relies upon an incident involving abusive language by Peter Woods Snr. The applicant also relies upon an incident involving Peter Woods Snr and Barry Gale an Aboriginal man on 9 May 2007. It was recorded that Barry Gale was refused service. Mr Peter Woods Snr who is not Aboriginal intervened with bar staff after Mr Gale was refused service. In relation to this incident Mr Woods Snr then became involved in a discussion/argument with Joel Parnaby and Judy Lack. Mr Woods Snr accused bar staff of throwing complaints letters in the bin. He claimed that they interfered with security cameras. He also stated that they were all racist and only see what they want to see. He was reported to have told Judy Lack that she was nothing but a loud mouth. It was recorded that he subsequently apologised.
The applicant relies upon a further incident involving threatening language by Peter Woods Snr. On 11 May 2007 it was recorded in the Incident Book by Jason Milgate that he had received a call from Peter Woods Snr enquiring if he was barred. He was advised that he was barred until the next board meeting. It was recorded that he "then abused Judy and Joel saying that he was going to break every bone in Joel's body if he sees him in the street and saying very abusive words about Judy & Joel". It was recorded that he then said abusive words about Judy and Joel, including "Mongrel Dogs", "Slut" and "No Good Cunts". The Board suspended his membership for 6 months.
The applicant relies upon the evidence of Margaret Edwards an Aboriginal woman. She claimed that bar staff target Aboriginal people and always ask them to quieten down or ask them to leave if they have had a couple of drinks. She claims people who are not Aboriginal are able to get away with being drunk and swearing and are not asked to leave or appear before the Board. She said that Shane Smith was the most prejudicial staff member at the Club.
The applicant also relies upon the evidence of Gwen Barker an Aboriginal woman. She also claims that she has observed people who are not Aboriginal to swear and use the words "fuck" and "cunt" loudly in the presence of bar staff. They were not asked to leave. She states that she has observed people who are not Aboriginal to be fighting on the dance floor and not be asked to leave. She also has observed people who are not Aboriginal to be intoxicated and not be asked to leave.
The Respondent's Evidence
Mr Paul Sills gave evidence that he was a former Secretary Manager at the Club. He was not appointed at the time of the incident, he commenced on 28 December 2010 and had since left. At the time of the respondent filing a defence to this claim, he was the person at the Club who had custody of and responsibility for the records of the Club. He reported that the Club had for many years a practice of maintaining a daily Incident Report Book in which first hand contemporaneous reports from staff on duty are recorded. He indicated that it was the policy of the Club to treat all patrons equally and without discrimination. The Secretary/Manger is directed by the Board to enforce the policy and to ensure staff are aware of and adhere to the Policy.
He commented that the use of swear words is not uncommon in the robust outback Bourke community and the Club is no different. He said that the use of strong, unpleasant, direct and threatening swear words would be considered unacceptable in the general Bourke community and are also contrary to the Club policy. He said that the tone and manner and general context of certain words will determine whether the Club policy has been breached and whether using such language should be cautioned or not. He said that the use of some words in a light hearted or humorous context, in general conversational banter, would not necessarily require a caution. The policy is in accordance with general Bourke standards. He annexes a copy of Clause 55 of the Club By-laws.
In his oral evidence Mr Sills told the Tribunal that the use of the word "fuck" or "fucking" is frequently used in normal conversation. He would only expect staff to intervene in the Club if the word was used and was too audible to other patrons. He said that he would not expect staff to intervene if no-one could hear. He said that staff might intervene if a person was a habitual offender. He would not expect the matter to be referred to the Board if the person was asked to leave and they complied.
The Club wrote to Ms Brown on 5 March 2009 and advised her she was to attend the Board for a Disciplinary hearing on 15 March 2009 in relation to unacceptable behaviour on 4 March 2009, which are the incidents the subject of this claim. As noted the hearing was adjourned to 17 March 2009.
In relation to the events occurring on 4 March 2009 Mr Shane Smith gave evidence. He was a Licensed Security Officer employed by the Club to enforce the provisions of the Liquor Act 2007 at the Club. An essential part of his duties involved ensuring compliance with s73 of the Liquor Act so as to prevent the excessive consumption of alcohol on licensed premises. His duties were stated to include enforcing general behaviour and enforcing staff requests to patrons to leave the premise after having been refused service of alcohol. Mr Smith stated that he had attended the Discrimination Awareness Course run by the Club and was fully aware of his duty to treat all patrons fairly regardless of race or gender. In his oral evidence Mr Smith told the Tribunal that the course had been more about gender discrimination.
In his written statement he commented that he did not recall the details of Ms Brown's phone conversation on 4 March 2009, but he may have asked her to tone it down. Mr Smith attached his entries into the Incident Book for the evening. The book recorded that
At 8:15pm Patricia Brown (Bo) was asked to stop talking on a mobile phone in the pokies smoking area & using the word Fuck and Fucking. This was herd (sic) from the front door. When I asked Bo to stop swearing she said you were Security on Monday and Tuesday night & I said yes, she then said what about the swearing on those nights. I said I don't know, I'm asking you to stop swearing now.
In his oral evidence Mr Smith told the Tribunal that he was located at the Foyer door to the Club between the inside and outside doors. He thought the outside door to the Club may have been open but the interior glass doors were shut. There was a wall between this area and the smoking area, but the sound could travel. He conceded that to the best of his knowledge people inside the Club would not have overheard the phone conversation. He conceded that he could not recall if any persons were coming up the pathway to the Club at the time.
He also gave evidence that he heard someone use the words "fuck" and "fucking", but that he did not recognise the voice, but Mr Smith did concede that Ms Brown has a distinctive voice. He said that he could hear Ms Brown swearing, so it was up to him to ask her to keep it down and he was "not particularly offended" by the language. He said that he could tell that Ms Brown was talking to someone on the phone.
When asked if he regarded the word "fuck" as offensive, Mr Smith claimed that it was "at certain times". Those times were in the presence of ladies and children and swearing loudly in a crowd. He conceded that he used the word himself.
Mr Smith said that he would not expect a person to be called before the Board for such an incident and it may heave been for an incident later that evening. Mr Smith also made an entry in the Incident Book at 9:45pm on 4 March 2009. He notes that at 9:49pm Patricia came out to the front of the Club and asked for a ride home on the bus. He advised it would be back with in 5 minutes. He writes,
Patricia then sat on the stool at the front, she then went back inside the club, I then told Patricia that she couldn't go back in as she was intoxicated, as she was stumbling, her speech was slurred & her eyes were glassy. Patricia then argued with me until the bus arrived to take her home. This was also witnessed by Joel Parnaby who was also working at the time.
Mr Smith concedes that Ms Brown had not been asked to leave the Club that night, but had left of her own accord. He said that he was "not particularly" troubled by the fact that she had told him that he makes up lies about her and that she was going to make a complaint about him to the Board.
An entry by Daniel Price at 9:49 records that, Patricia Brown got on the bus and started swearing about Shane Smith saying that she was "talking to her fucking "niece" and not to Shane when she was swearing in the Club. She was mumbling and slurring her words and seemed very intoxicated and swore several times saying "I don't give a fuck if I get barred."
Mr Smith wrote a letter to the Board dated 17 March 2009 for the disciplinary hearing for Ms Brown. It is headed "To whom it may concern". He starts off by stating, "I do not pick on Patricia Brown". He then sets out his role and history as the Club Security officer. He states that he has done a responsible service of alcohol course and antidiscrimination course. He states that he has worked at the Club for 13 years. He then details the incidents on 4 March 2009. He reports that at 8:15pm he asked Patricia Brown whom he heard swearing using the words "fuck and "fucking" to "keep it down" and as he walked away she swore again. He does not refer to the context. He then writes that at 9:49pm she came out the front of the Club and asks for a ride home on the bus. He advised the bus would be 5 minutes. She then went to go back inside the club. She was told she could not because she was intoxicated, she was stumbling her speech was slurred and her eyes were glassy. She then argued with him until the bus arrived to take her home.
Mr Smith gave evidence that he worked at the Club for 15 years and at the time of the incident had been employed there 13 years. In that time he had never previously written a letter to the Board in respect of an incident. He had only ever attended a Board meeting in respect of an incident once. He said that he does not have a computer and does not type, so his letter to the Board would have been prepared at the Club by office staff. He could not recall the circumstances that led him to write the letter. He conceded that the Board would be aware of his role as a security officer. He disputed that it was a strange thing to write setting out his role and qualifications, responding that it depended upon who the letter was for, the Club, the Board or solicitors.
Mr Victor Bartley gave evidence that he was the Club President at the time. He states he has known Ms Brown for about 20 years as he is a friend of her husband Mr Kevin Knight. Mr Bartley denies the Club discriminated against Ms Brown on the grounds of her race. He claims he attended an anti-discrimination course in the Club on 21 June 2007. The Tribunal notes that the evidence of Mr Smith, referred to above, is that this course primarily related to issues of gender. Mr Bartley told the Tribunal that the Club has a non-discriminatory policy of employment.
Mr Bartley stated that the Board comprises 13 Board members. He claimed that the Club membership was evenly divided between Aboriginal and non-Aboriginal persons. At the time of his statement there were 3 Aboriginal Board members and two Board members married to Aboriginal persons. He states that the makeup would be fairly typical over the years. The Board is elected at the Annual General Meeting from those who nominated. He did not give evidence of the composition of the Board at the disciplinary meeting on 17 March 2009.
Mr Bartley claims that there have been problems with the applicant's behaviour while on Club premises on a number of occasions. Those problems have been related to Ms Brown's excessive consumption of alcohol and resulting intoxication. He said that the Club works closely with the local licensing Sergeant to uphold standards of responsible service of alcohol.
He told the Tribunal that it is the Club Secretary/Manager who is responsible for staff, not the Board. It is also the Secretary Manager or the Assistant Secretary Manager who keeps records of Minutes of the Board meetings. Mr Bartley gave evidence about how disciplinary matters are dealt with. He said that Club staff decide if a person has to leave the Club and the incident is recorded in the Incident Book. The Secretary Manager then looks at the Incident Book to decide if there is a need for further action to be taken and if the person needs to appear before the Board to answer the allegations. The Board may impose a penalty for the conduct.
In respect of the Club Rules they are found in clause 55 of the Club By-laws. Relevantly clause 55 provides that it shall be an offence to use "objectionable or obscene language" on the Club premises. The Table of penalties creates an offence for "Threatening Staff", "Threatening Patrons", "Entering premises whilst suspended", "If Police attend an incident", "Refuse to leave premises", "Assault to a staff member", "Assault to another Person" and "Abusive language towards staff".
Mr Bartley told the Tribunal that there is a Table of Penalties. He conceded that there was no prescribed penalty for "objectionable or obscene language" or "offensive language". He said that the Board was not a court and they tried to have a list of penalties so that when some-one does appear before the Board, they have an idea of the penalty to impose. He said that when the Board hears a subsequent matter everything is taken into account.
Mr Bartley was asked about an incident involving Peter Woods Jnr in January 2009 where he was given 6 months suspension of membership, for use of language including threatening language and subsequently threatening to "kill" staff. Mr Bartley claimed that it was less serious that the incident involving Ms Brown on 4 March 2009. He conceded that Mr Woods Jnr had previously been before the Board, but could not say how many times. Mr Bartley agreed that there was a range of offences and threatening staff was a more serious offence than objectionable or obscene language.
Mr Bartley was questioned about an incident in October 2010, that came before the Board on 18 November 2010. It was alleged that in October 2010 Mr Woods Jnr assaulted an Aboriginal member of the Club Mr Ian Monoghan in the toilets. It was recorded in the Incident Book that Mr Ian Monaghan was observed to be injured and bleeding and made a claim at the time that he was "king hit" by Mr Woods. Mr Bartley was asked whether an incident involving an assault was a more serious offence that Ms Brown's conduct. Mr Bartley claimed that there were no eye-witnesses and no cameras in the toilet and Mr Woods denied the allegation. He said that Mr Woods was given a severe warning. Mr Bartley told the Tribunal that Mr Monoghan could have fallen over and his nose in the toilet.
It was suggested to Mr Bartley that there was ample evidence that the incident had occurred and that Mr Woods Jnr was over-heard by staff to state "I'll probably get barred for this now". Mr Bartley could not recall if he had seen the Incident Book in relation to this incident. Mr Bartley said that he could not comment about this, but noted that the persons involved did not come before the Board to give evidence. He conceded that the Board had the power to adjourn the disciplinary hearing and ask for staff to attend to give evidence to the Board. Mr Bartley conceded that in relation to this incident, "if proven" Ms Brown had a right to feel hard done by for receiving a 2 year suspension for offensive language when Mr Woods Jnr had received no penalty.
In respect of his role as Chairman, Mr Bartley gave evidence that he is responsible for setting the agenda for the Board meeting. He said that he does not tell other Board members what to do.
The respondent also relied upon the Incident Book and Board Minutes in relation to past incidents. Ms Brown was required to attend the Board for a disciplinary hearing on 21 September 2007 in relation to an incident on 25 August 2007. The Incident Book records that Ms Brown and Christine Dixon were fist fighting in front of the Club. Ms Brown punched Ms Dixon and Police were called.
The Board Minutes record that Ms Brown said that she was provoked twice by Melinda Dixon and she had sent a letter to Liam Rice about her. She had walked to the front of the Club to the bus when Melinda "started on her". Ms Brown requested Ms Dixon to leave her alone and then "Christine took it up for her". It was resolved to give Ms Brown a warning letter. It was also noted that Melinda Dixon was to receive a letter that "if it keeps happening her membership will be provoked (sic)"
Ms Brown was required to attend the Board for a disciplinary hearing on 21 December 2008 in relation to behaviour on 29 November 2008. In relation to this incident Ms Brown had been refused service at 11:15 pm for intoxication. Shane Smith had reported that after Ms Brown was refused service she again approached the bar. She said that he could not refuse her service. He advised that he was security. Ms Brown asked for the Police to be called to breath test her. He reported that she had signs of intoxication which he described. On that date the Board resolved to impose no penalty.
Ms Brown was required to attend the Board for unacceptable behaviour on 7 February 2009 and her membership was suspended until the meeting. The Incident Book records that on 7 February 2009 at 11:38pm Ms Brown was refused service by Robert Brown for intoxication and she said that tomorrow you will hear more about this. Frank Kerr was called to get her out. At 11:51 pm Frank Kerr recorded that he had spent 20 minutes trying to get Ms Brown out of the Club. She had been telling him that she was sitting there watching all the other drunks. She told him it wasn't fair and he would be hearing about it. He noted she was told that he could not help her and that once you had been refused service you have to leave the Club. She then stood at the front door stating that Shane Smith would lose his job if she had anything to do with it. Shane Smith reported that she was intoxicated. He described her appearance and she was taken home on the courtesy bus.
The Board Minutes record that she said that she was going and stopped to talk to Melissa and Neil Orcher. She said that it was only half an hour till closing and why couldn't she stay. She said that Melissa McFadden had said that security had told her to leave and that the only way to deal with "these people" was to put it in writing. The Board resolved Ms Brown had incurred sufficient suspension and determined to impose no further penalty.
The Respondent also relied upon evidence from Mr Phillip Kavanagh who was employed at the Club and was Assistant Manager at the time of the incidents the subject of this claim. Mr Kavanagh provided a written statement for the respondent, however the evidence in his written statement was significantly modified by his oral evidence. In his written statement he claimed that at least every fortnight there was an incident involving Ms Brown. When asked about this, he conceded that it was more of a figure of speech and was not an accurate reflection of what occurred.
In his written statement he also made comments about Ms Brown's behaviour at the Club. This evidence was also significantly tempered by Mr Kavanagh's oral evidence when he was questioned about this. He told the Tribunal that he got on with Ms Brown "like a house on fire" and that in his time working at the Club, he personally could not recall that he had ever had to ask Ms Brown to leave. He told the Tribunal that he had prepared his statement after reading the incidents recorded in the Incident Book and talking to a staff member. They were not reflective of his personal experience in dealings with Ms Brown at the Club.
Mr Kavanagh gave evidence that there was no penalty for being asked to leave the Club due to intoxication. A membership is suspended only if the person gets abusive or argumentative. Both Mr Smith and Mr Kavanagh gave evidence that on a busy night such as a Saturday anywhere between 10 to 15 people might be asked to leave the Club due to intoxication.
Relevant Legislation
Section 20A (2) of the ADA provides :
It unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of race:
(a) by denying the person access, or limiting the person's access, to any benefit provided by the registered club.,
(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.
...
Section 7 of the ADA provides:
(1) A person discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race, or the race of a relative or associate of the aggrieved person, the perpetrator:
(a) the perpetrator 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 of a different race.
Section 52 of the ADA makes it unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.
Section 53 of the ADA provides:
(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
Findings and Decision
The applicant bears the burden of proof in respect of this claim. In Qantas Airways v Gama [2008] FCAFC 69 [at 55] Branson J discussed the standard of proof, referring to what is known as the "Briginshaw" standard. She indicated that "Briginshaw" was about the quality of the evidence not the standard of proof. She stated, "The correct approach to the standard of proof in civil proceedings in a federal court is that for which s140 of the Evidence Act provides. It is an approach which recognises ... that the strength of evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved."
In Burns v Laws (EOD) [2008] NSWADTAP 32 the Tribunal dealt with this issue in relation to discrimination claims. It was noted that "Briginshaw is a case about the standard of evidence required to meet the burden of proof."
The Tribunal further considered the "Briginshaw standard" in Chand v Rail Corporation of NSW (No2) [2009] NSWADTAP 27. The Appeal Panel noted section 140 of the Evidence Act 1995:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.
The applicant alleges that the Bourke Bowling Club directly discriminated against her on the grounds of her race, (her Aboriginality), by depriving her of her Club membership by way of a suspension for two years. The Tribunal finds that Ms Brown is an Aboriginal person and that her Aboriginality is a race within the meaning of section 7 of the Anti-Discrimination Act 1977 (the ADA). The Tribunal finds that the Bourke Bowling Club is a Registered Club.
In considering whether the Club discriminated against Ms Brown on the ground of her race, the Tribunal has had guidance from previous decisions of the Courts and this Tribunal. In the Commissioner of Corrective Services v Aldridge [2000] NSWADTAP5 the Appeal Panel of the Tribunal referred to the decision of Waters v Public Transport Corporation [1991] HCA 49 (1991) 173 CLR 349 where Dawson and Toohey JJ stated,
Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race).
In the case of Commissioner of Corrective Services v Aldridge (No. 2) [2002] NSWADTAP6 the Appeal Panel of the Tribunal stated:
In our decision of 18 April 2000 we stated that, in relation to the complaint of discrimination on the ground of race, two issues needed to be addressed. Those issues are:
Whether the Complainant was treated less favourably than a non-Aboriginal person would have been treated in circumstances that are the same or not materially different (the comparison issue);
If so, whether that less favourable treatment was on ground of the race of the Complainant (the causation issue).
In relation to the issue of differential treatment the Appeal Panel stated,
...differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation. For differential treatment to have occurred in this case, the treatment of Mr Aldridge must have been objectively less favourable than the treatment which was actually afforded to a non-Aboriginal person, or which would have been afforded to a non-Aboriginal person, in the same or similar circumstances.
In Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92 at 231 (Purvis) the High Court said that the two elements of direct discrimination, differential treatment and causation must be treated separately and sequentially. In Hollows v Macquarie University [2009] NSWADT 23 (6 February 2009) (Hollows) the Tribunal stated:
That approach is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated.
In Purvis the Court was dealing with similar provisions in the Commonwealth Disability Discrimination Act 1992. It was stated:
... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'.
In Hollows the Tribunal, noted that:
The AD Act uses the words "on the ground of", rather than "because of" but no different meaning is intended.
The test for causation in discrimination was further considered by the Appeal Panel of the Tribunal in Nicholls and Nicholls v Director General, Department of Education and Training (No 2). The Appeal Panel stated:
The test set out by the Court of Appeal in Waterhouse v Bell (1991) 25 NSWLR 99 and applied by the Tribunal in Shaikh is essentially the same test that the High Court enunciated more recently in Purvis. That fact supports our view that s 4A is an explanatory provision which does not give the words 'on the ground of' an extended meaning beyond their ordinary meaning. Whether or not the reason was substantial or insubstantial is not the point. The inquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision.
Throughout its reasons, the Tribunal applied the 'but for' test and/or the substantial, dominant or main reason test. As we see it, the application of those tests constituted an error. The Tribunal should have asked itself whether the fact that the Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. As for complaints of discrimination, for that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant.
Ms Brown claims that the decision of the Club to suspend her membership for a period of two years amounts to discrimination on the grounds of race. To establish discrimination on the grounds of race, differential treatment and causation must be established by the Applicant. In relation to causation she must establish that a real, genuine or true reason for any differential treatment, was her race. The Applicant must establish that her race, either alone or in combination with other reasons, was the true basis for the treatment.
The first question the Tribunal must ask is whether Ms Brown was treated less favourably than a person who was not Aboriginal would have been treated in circumstances that are the same or not materially different (the differential treatment). In order to answer this question, the Tribunal must firstly determine what the conduct was for which Ms Brown was referred to the Board for disciplinary proceedings.
The basis for suspension of her membership in relation to the incidents of 4 March 2009 are the incidents reported in the Incident Book for that evening and the applicant's history. There are a series of three entries in the Incident Book for the evening of 4 March 2009. The incidents related to swearing, an argument with Mr Smith and being refused readmission while intoxicated.
The Tribunal had regard to the oral evidence from the Licensing Sergeant, the Intoxication guidelines published under section 5 of the Liquor Act 2007 and also the Club's Rules. The Intoxication guidelines provide that licensees and staff must ensure that patrons do not become intoxicated. Intoxicated persons are to be removed immediately or refused entry on licensed premises. A licensee is liable for permitting intoxication if an intoxicated person is detected by authorised officers on the premises. The offence applies regardless of whether the person is still drinking on the licensed premises.
The Club is a licensed premise that serves alcohol to patrons. If a Club patron is intoxicated, then there are penalties for the Club if it continues to serve alcohol and also if it does not ask the person to leave. It is a breach of the Club rules if a member refuses to leave when asked. The evidence given to the Tribunal was that on busy nights at the Club, particularly a Saturday night, any-where between 10 to 15 people are asked to leave the Club due to intoxication. The Club has a responsibility to prevent patrons from becoming intoxicated. The Tribunal finds that being asked to leave the Club due to intoxication is not a breach of the Club rules and there are no penalties that apply.
The respondent's evidence is that the applicant has an observed history of being intoxicated at the Club. The applicant's own evidence would support a finding that she does drink to excess on occasions. The Tribunal finds on the evidence, that there is no basis to suspend Ms Brown's Club membership based upon intoxication per se. The fact that Ms Brown was reported to be intoxicated on 4 March 2009 is not grounds for suspension of her membership.
In relation to the incidents recorded in the Incident Book on 4 March 2009, the first incident recorded is the use of the words "fuck" and "fucking" in the smoking area. The second incident is an incident whereby Ms Brown had left the Club and was in an "argument" with Mr Smith, the Security officer for the Club. The final incident is again swearing on the Club courtesy bus. Mr Bartley gave evidence that to the best of his knowledge Ms Brown was suspended for "offensive language" and her past behaviours.
Ms Brown claims that she received differential treatment in respect of the application of the Club Rules and Guidelines and imposition of Club penalties compared to a person who is not an Aboriginal person in the same or similar circumstances. She alleges that the Club does not enforce a ban on swearing in the Club against persons who are not Aboriginal. She claims that her penalty for the use of these words was less favourable than that which would be given to a person who is not Aboriginal. The applicant relied upon the record in the Incident Book that she told Mr Smith that there had been swearing in the Club when he was on duty on the Monday and Tuesday of that week.
Ms Brown relied upon the evidence in relation to the application of the Club Rules and guidelines in relation to the treatment of Mr Peter "Pecker" Woods Jnr. She relies upon treatment in respect of incidents whereby there was a record of behaviour in the Incident Book in relation to him. She claims that she was treated less favourably than in the same circumstances, or in circumstances which are not materially different, to Mr Peter "Pecker" Woods Jnr who is a member of the Club and who is not an Aboriginal person.
In respect of the Club Rules they are found in Clause 55 of the Club By-laws. Relevantly clause 55 provides that it shall be an offence to use objectionable or obscene language on the Club premises. The Table of penalties creates an offence for "Threatening Staff" "Threatening Patrons", "Entering premises whilst suspended", "If Police attend an incident", "Refuse to leave premises", "Assault to a staff member", "Assault to another Person" and "Abusive language towards staff". Mr Bartley conceded that there was no prescribed penalty for "objectionable or obscene language" or "offensive language".
In March 2008 Mr Peter "Pecker" Woods Jnr was involved in an incident whereby he refused to leave the Club. He then got into a fight with a member of staff. He also attacked his father and the Police and Ambulance had to be called. In relation his conduct clause 55 (b) of the Club Rules provides it is an offence for "Threatening Staff", "Threatening Patrons", "If Police attend an incident", "Refuse to leave premises", "Assault to a staff member", "Assault to another Person" and "Abusive language towards staff". The Table of Penalties for a first offence involving threatening staff is 12 months suspension and a second offence involving threatening staff is two years. There had been no requirement for him to appear before the Board on that occasion.
In respect of a subsequent incident on 4 January 2009 Mr Peter Woods Jnr was reported to have been very intoxicated and was swaying at the bar. He was asked to leave the Club on numerous occasions. He used the term "black cunts". The following day on 5 January 2009, he threatened to "kill" two members of staff.
In respect of those incidents Mr Peter Woods Jnr was given 6 months suspension of membership for refusing to leave, using obscene or objectionable language and subsequently threatening to "kill" staff.
Approximately 2 months after these incidents the Club Board imposed a 2 year suspension of Ms Brown's Club membership. The Board imposed this suspension in accordance with the Club Rules. While clause 55 (b) of the Club Rules provides it is an offence to "use objectionable or obscene language" on the Club premises, the Club Table of Penalties however does not have a penalty for this offence. The Club Board imposed this penalty in the context of the use of the words "fuck" and "fucking". There were no threats of violence to staff and no physical violence towards staff or others. The Tribunal finds consistent with the evidence of Mr Smith and Ms Brown that the argument between them on that night, was about Ms Brown stating she would assert her rights in respect of his treatment of her. In relation Ms Brown's history from March 2007 she does not have a history of previous suspension of her membership imposed by the Board. The Board has not previously determined her conduct justified the imposition of a suspension.
The Tribunal notes that Ms Brown does have a "history" of an incident involving physical violence on Saturday 25 August 2007. Ms Brown's evidence in relation to this incident was not contradicted. The Tribunal finds that the situation was entirely different in nature from the incidents involving Mr Woods Jnr in that she reported that she was being targeted that evening and was not the aggressor.
The Tribunal has before us evidence in relation to Mr Woods Jnr's treatment in respect incidents involving the use of objectionable and obscene language, threatening staff and assaulting staff and others. Both Ms Brown and Mr Woods Jnr have a past histories of incidents involving the use of language that the Club claims is objectionable or obscene. The circumstances in relation to Mr Woods Jnr are not materially different in that they involve the breach of the Clubs Rules. Mr Woods Jnr's language is physically threatening and racist and with a history of an escalation to physical violence as an aggressor. Mr Bartley conceded that threatening language is worse than the use of swear words. For these offences Mr Peter Woods Jnr received no referral to the Board and a 6 month suspension.
Ms Brown's language on 4 March 2009 was quite different. It was language that involved the use of the words fuck and fucking and was not physically threatening. The Tribunal heard evidence from Mr Sills, Mr Smith, Mr Bartley and Mr Kavanagh was that the use of the word "fuck" was part of the normal everyday speech in the Bourke community. They all use the word. Ms Brown drew a distinction between bad language and "filthy" language. Mr Bartley agree that some words were more offensive than the word "fuck". Ms Brown's case is that her language was no more offensive that the language of other persons in the Club who were not Aboriginal. The Tribunal heard evidence from Mr Kavanagh and Mr Sills that the words were not offensive when used in general conversation. In relation to the use of this language the evidence is that most people who gave evidence all use the words fuck or fucking.
The Tribunal finds that the "context" was applied in a highly subjective manner. There was simply no objective or consistent standard being applied. Mr Smith, who cautioned the applicant for the use of the "offensive" language, himself used the same language. Further to this he used the language in front of his own children and others despite giving evidence that this was a context where it was inappropriate.
The Tribunal heard that the decision to refer a matter to the Board was also a highly discretionary matter at the discretion of the Secretary Manager or at the request of staff. Mr Kavanagh's evidence was that it was not his decision to refer the matter to the Board, therefore it must have been that of Mr Liam Rice. The Secretary Manager involved in the incident, Mr Liam Rice, did not give evidence. The use of such language is a matter for which there is no prescribed penalty.
The applicant received a very harsh penalty for a relatively trivial matter for which no prescribed penalty exists. Since March 2007, Ms Brown had not had a suspension of her membership imposed by the Board for any incident relating to her conduct in the Club. The Tribunal finds that the evidence before us is sufficient to support a finding that the applicant was treated less favourably than a person who is not an Aboriginal person would have been treated in circumstances that are the same or not materially different.
Having found that Ms Brown received less favourable treatment, the Tribunal must then consider whether the differential treatment was on the ground of race. That is, was the applicant's Aboriginality a real, genuine reason for the treatment?
In this matter there is no direct evidence of discrimination on the grounds of race. The issue of what happens when there is no "direct evidence" of less favourable treatment has been discussed in decisions including Dutt v Central Coast Area Health Service (2002) NSWADT 133 (Dutt), Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 (Edwards) and Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. Where there is no direct evidence of less favourable treatment the Applicant must rely upon inference.
In Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 the Tribunal referred to the authorities and the Tribunal noted that it is open to the Tribunal, having taken into account all the circumstances surrounding the respondent's treatment of the applicant, to make a finding of unlawful discrimination. However such a finding cannot be inferred where more probable and innocent explanations are available on the evidence.
In Dutt v Central Coast Area Health Service (2002) NSWADT 133 the Tribunal stated :
Experience and commentary indicate that inference is the usual way in which an applicant must establish discrimination in an enquiry or hearing: in The Liberal Promise at p182, Thornton says that "unless a respondent is particularly obtuse most forms of discrimination are unlikely to be explicit ..." It has been observed that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves...The outcome of the case will therefore usually depend on what inference it is proper to draw from the primary facts found by the Tribunal. (in Palmer C., Moon G., and Cox S. Discrimination at work: the law on sex, race and disability discrimination LAG, London 1997 at p34)
In respect of drawing inferences to prove less favourable treatment in Dutt the Panel stated that the authorities identify the following considerations :
a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from the primary facts;
an inference must be reasonably drawn on the basis of primary facts;
an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;
a fact relied upon as the basis of an inference need not be proved to the requisite standard of proof;
it is not enough that the inference is a mere possibility: it must be one of "probable connection" ;
the inference must be a logical one, and not supposition;
an inference cannot be made where more probable and innocent explanations are available on the evidence.
In considering whether Ms Brown was treated less favourably on the ground of her race, we note that evidence was given by a number of witnesses of statistics. We find that this evidence was no more than what could be described as "guesstimates" and could not be regarded as a proper statistical analysis.
We have had regard to Ms Brown's history of appearances before the Club Board for disciplinary matters. We note that Ms Brown has been before the Board since March 2007. In considering this evidence we do note that it is Ms Brown's claim that she is singled out on the grounds of her race. This contention that she may be targeted by certain staff members does receive some support from the evidence of Mr Kavanagh. The Tribunal heard from Mr Kavanagh, the Assistant Secretary/Manager at the time of the incidents who gave evidence to the Tribunal for the respondent. His evidence was that he had read through the Incident Book and noted that Ms Brown's name appeared frequently, yet when asked about his evidence, he made significant concessions. He said that his evidence was based upon his reading of the Incident Book. He said that he has personally never had to ask Ms Brown to leave the Club and he has a good relationship with her.
We have had regard to the nature of the incidents occurring on the evening of 4 March 2009. In relation to the first incident Ms Brown was engaged in a private conversation. There is no evidence that any-one other than Ms Edwards and Mr Smith heard Ms Brown's conversation. Mr Smith was aware that it was a private telephone conversation. It is a very highly discretionary matter to ask some-one to amend their behaviour in relation to the use of such language, to write it up in the Incident Book and to make the referral to the Board. As noted there is no prescribed Club penalty for the use of "obscene or objectionable language". There are also no guidelines as to what constitutes such language and the circumstances in which the use will be a breach of the Club rules.
Having regard to the notations recorded in the Incident Book the Tribunal finds that Ms Brown voluntarily left the Club that evening. She then made a request to Mr Smith for a lift home on the courtesy bus. Mr Smith's evidence is that Ms Brown asked for the bus home and was told it would be 5 minutes. She went to go back into the Club and he told her she could not. There is no evidence to suggest that she was not compliant with this request. She did however ask why she was refused re-entry and was told she was intoxicated.
The evidence from Mr Smith, consistent with his notation in the Incident Book, is that Ms Brown argued with him until the bus came to take her home. Ms Brown's evidence is that the discussion related to Mr Smith's treatment of her. She gave evidence that she told Mr Smith that she would make a complaint against him for his treatment of her and Mr Smith's evidence was consistent with her evidence.
In relation to this issue, Ms Brown was already off the premise and was compliant with remaining off the premises. There is no suggestion that she threatened Mr Smith in any way other than that she would assert her rights in relation to his treatment of her. In relation to the incident on the bus, again Ms Brown was swearing using the words "fuck" and "fucking" on the courtesy bus.
The Tribunal heard evidence from Aboriginal witnesses that they are singled out for differential treatment in relation to swearing and intoxication at the Club.
We have had regard to the fact that the evidence is that swearing is common in Bourke. Ms Brown's evidence was that it was commonplace for patrons in the Club to swear. Ms Brown's evidence in relation to this issue is supported by the fact that all witnesses for the Respondent gave evidence that they themselves use such language. As noted there was discussion about the "context" of the use of the language.
Ms Brown's claim is that her language was no more offensive than the language of other persons in the Club who were not Aboriginal. The Tribunal heard evidence from most if not all witnesses, that identifying the use of the word "fuck" as offensive, objectionable or obscene language was highly dependent upon the context. Mr Sills a former Secretary/Manager gave evidence that he would not expect staff to intervene unless the comments were loud and other patrons could hear. In relation to the use of such language, the Tribunal also heard evidence from Mr Smith, Mr Bartley, Mr Sills and Mr Kavanagh that they all use the word "fuck". Their evidence all discussed the "context" of the use of such language. The Tribunal was told that it was not appropriate in front of women, or children or in a crowd. The Tribunal heard evidence that in a private conversation in Bourke the use of the word is common place in Bourke.
The Tribunal finds that the "context" was applied in a highly subjective manner. There was simply no objective or consistent standard being applied. Mr Smith, who cautioned the applicant for the use of the language, himself used the same language. Further to this he used the language in front of his own children and others despite giving evidence that this was a context where it was inappropriate.
The Tribunal heard that the decision to refer a matter to the Board was also a highly discretionary matter at the discretion of the Secretary Manager or at the request of staff. Mr Kavanagh's evidence was that it was not his decision to refer the matter to the Board, therefore it must have been that of Mr Liam Rice. The Secretary Manager involved in the incident, Mr Liam Rice, did not give evidence.
The Tribunal also had regard to the evidence in respect of what occurred at the meeting where Ms Brown's membership was suspended by the Board on 17 March 2009. The Minutes of the Board meeting which was constituted to hear Ms Brown's disciplinary matter indicate that the Board was comprised of 8 members who were present on that occasion. The Tribunal has considered the evidence in relation to the events of the meeting itself, which was highly unusual in a number of aspects. Firstly, Mr Smith the security officer provided a report to the Board for the first and only time in his 15 years of employment.
Secondly, the Board also imposed a harsh penalty, a suspension of membership for a period of two years. The suspension was imposed by the Board at a Special Board Meeting on 17 March 2009. The Board was comprised of Mr Bartley and 7 other Board members. Mr Bartley's evidence was that he does not tell the Board members what to do. Mr Bartley's evidence was quite deficient in respect of providing the Tribunal with any sound reasoning for the basis of why Ms Brown's membership was suspended and why she received the severity of penalty imposed. Mr Bartley was extremely careful in giving his evidence and said very little as he had a very poor recollection of most matters. He claimed that the suspension was due to her language and her history. The respondent did not call evidence from any other Board members who attended the meeting to explain their reasoning for the imposition and severity of the suspension.
In Jones v Dunkel (1959) 101 CLR 298 at 308, it was stated by Kitto J, that
any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation for the absence. The jury should have been told that it would be proper for them to conclude that if Hegedus had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which ... was open on the plaintiff's evidence.
Similarly Windeyer J stated at 321, "Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case."
In Edwards the Tribunal noted that the rule in Jones v Dunkel cannot be employed to fill gaps in the evidence, or to turn conjecture and suspicion into evidence. That is, if the applicant's case lacks substance itself, it cannot be made out by the absence of evidence on the other side. The Tribunal went on to state that if the evidence was finely balanced, the absence of an explanation from the directors for their decision could lead to an adverse inference against them being more readily drawn.
In relation to the question of whether the discrimination was on the grounds of race the Tribunal has also had regard to the subsequent incident involving Mr Peter Woods Jnr on October 2010. It was alleged that Mr Woods Jnr assaulted an Aboriginal member of the Club. There was documented evidence of contemporaneous observations by staff and the Board could have called for the staff to attend the meeting to give evidence. For this incident Mr Woods Jnr was given a severe warning.
The respondent could have provided the Tribunal with further evidence from other Board Members present giving a more detailed explanation for why Ms Brown received the penalty imposed. It elected not to do so. Mr Bartley claimed that to the best of his recollection Ms Brown's membership was suspended because of offensive language and past history. His memory was poor and his evidence was evasive. The claim that the suspension was because of Ms Brown's conduct is not consistent with the evidence in relation to the treatment of Mr Woods Jnr. The Tribunal finds that there was no credible and reliable evidence to support an alternate more innocent explanation before us. As indicated above, in Edwards it was noted that the absence of an explanation cannot be relied upon by itself to provide the missing element of proof.
The evidence before the Tribunal is that the applicant made a complaint to Mr Smith about his treatment of her and indicated that she was going to make a complaint about her treatment. She had also made a statement on 7 February 2009 to Mr Smith that he recorded in the Incident Book that it was time to take on the Club again. She had previously made a complaint to the Anti-Discrimination Board about discrimination on the grounds of race. That complaint was settled. On this occasion before she could make a further complaint, her Club membership was suspended.
It is the respondent's claim that the applicant was a "serial offender" in relation to her conduct. It was claimed that the applicant's conduct, her language and intoxication were the real reasons for her suspension. The Tribunal does not accept this. The Tribunal finds that there is a clear causal link between the applicant's complaints to Mr Smith that she is receiving differential treatment because of her Aboriginality and the manner in which the disciplinary complaints against her were dealt with by the Club.
What happened at the Board disciplinary meeting in relation to Ms Brown's conduct was highly unusual. The Board had a letter from the Security officer for the first and only time in his 15 years of employment in relation to relatively minor matters not involving any violence. He set out his experience and qualifications justifying his treatment of her. The Board imposed a very harsh penalty for the use of language and a discussion with Mr Smith whereby she asserts she will make a complaint about her treatment. The penalty was imposed in circumstances where all the respondents witnesses use the words "fuck" and "fucking" and there is no actual prescribed penalty for the use of objectionable and obscene language. The Tribunal has found that in relation to Ms Brown's argument with Mr Smith it related to Ms Brown claiming she would assert her rights. There has been no plausible more innocent explanation provided by the respondent for the treatment. Having regard to these factors, it is reasonable and logical to draw an inference that the Board as it was constituted on 17 March 2009 imposed the suspension of Ms Browns membership on the grounds of Ms Brown's Aboriginality.
Remedies
The applicant sought to have the suspension of her membership lifted immediately, however the suspension expired prior to the hearing of this matter.
The applicant seeks compensation in the sum of $100,000 for non-economic loss for injury to feelings, distress, insult and mental suffering pursuant to section 108(2)(a) of the ADA. She relies upon her evidence of social isolation in respect of the limited opportunities for socialising in Bourke. She also relies upon the "Psychosocial Assessment Report" of Ms Pamela Verrender a Mental Health Social Worker. She details Ms Brown's "shame and embarrassment", distress, relationship conflict and social isolation and the requirement to travel great distances to play Keno and Pokies. We note that there is no claim for economic loss.
The Tribunal has a power to award damages if the complaint is substantiated. The limit of damages is $100,000.
In considering what is the appropriate level of damages the Tribunal has regard to Wilcox J in Hall v Sheiban (1985) ALR 503 at 543, where it was noted that the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult. "...damages for such matters as injury to feelings, distress, humiliation and the effect of the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon a complainant by failing to grant relief in a proven item of damage."
In Sharma v. QS Pty Ltd t/as KFC Punchbowl [2010] NSWADTAP 22 the Appeal Panel referred to decisions of Toll Pty Limited trading as Toll Express v Abdulrahman [2007] NSWADTAP 70, Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62 (1968) 119 CLR 118 and Tupou v Scruffy Murphy's Pty Ltd & ors [ 2007] NSWADT 192. It was stated that the amount awarded depends on the "experience and good sense" of the Tribunal member: Alexander v Home Office [1988] 1 WLR 968 per May LJ at 975. In Purvis it was noted that damages for a breach of the Act must compensatory, not punitive therefore any damages must relate to the issues arising out of the incident and not seek to punish.
The Tribunal finds the sum claimed to be excessive. We have had regard to the applicant's circumstances and the duration of the suspension of her membership of two years. We find the sum of $8,000 to be an appropriate sum in the circumstances of this matter, which we consider not to be in the higher range for an award of damages. The respondent is to pay $8 000 within 28 days from the date of these reasons.
The applicant also seeks an order that the respondent apologise for the distress caused. The Tribunal orders that the respondent provide a written apology to the applicant for discriminating against her on the grounds of her Aboriginality within 28 days from the date of these reasons.
Costs
The applicant sought an order for costs. Due to time constraints at the hearing, the Tribunal did not hear the costs application. Under section 88(1) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) provides that the prima facie rule is that the parties to proceedings pay their own costs. But the Tribunal may award costs under section 88 (1A) if it is 'fair' to do so.
We give the following directions regarding costs. There will be no order for costs in these proceedings unless the applicant files and serves an application for costs, with supporting submissions, within 28 days. If the applicant makes such an application for costs, then the respondent must file and serve submissions in response within a further 28 days. The question of costs will then be determined 'on the papers', pursuant to 76 of the ADT Act.
Orders
The respondent is ordered to pay the applicant the sum of $8,000 compensation pursuant to section 108(2)(a) of the ADA within 28 days from the date of these reasons.
The respondent is to apologise to the applicant in writing for discriminating against her on the grounds of her Aboriginality within 28 days from the date of these reasons.
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Decision last updated: 29 November 2012
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