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Christopherson v The Star Pty Ltd

Christopherson v The Star Pty Ltd

Case [2024] NSWCATAD 58 6 March 2024

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Christopherson v The Star Pty Ltd [2024] NSWCATAD 58
Hearing dates: 21 September 2023, 12 October 2023
Date of orders: 06 March 2024
Decision date: 06 March 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
Decision:
1. Leave is granted under s 96(1) of the Anti-Discrimination Act 1977 for the Applicant’s complaint regarding the incident of 4 September 2022 to proceed with respect to:
(a)   Direct and/or indirect age discrimination in contravention of ss 49YZA and 40YZN of the Act;
(b)   Indirect disability discrimination in contravention of ss 49B(1)(b) and 49M(1)(a) of the Act in relation to the requirement to provide secondary identification in the form of a bank card; and
(c)   Victimisation in contravention of s 50 of the Act with respect to the Applicant’s complaint of age discrimination by:
(i)   Asking the Applicant to leave the premises;
(ii)   Referring the Applicant to police; and
(iii)   After 4 September 2022, issuing the Applicant with a WOL letter.
2. Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 in relation to the remainder of the Applicant’s complaint.
3.   The matter is listed for case conference on Wednesday, 27 March 2024, at 2.00pm.

Catchwords:
HUMAN RIGHTS – Discrimination – equal opportunity – provision of services - age discrimination - disability discrimination – direct or indirect – victimisation - leave required for complaint to proceed – principles applying to grant of leave

Legislation Cited:
Anti-Discrimination Act 1977
Casino Control Act 1992
Casino Control Regulation 2019
Liquor Act 2007

Cases Cited:
Abela v State of Victoria [2013] FCA 832
Bonella & Ors v Wollongong City Council [2001] NSWADT 194
Catholic Education Office v Clarke (2004) 138 FCR 121
Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282
Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143
Jones v Ekermawi [2009] NSWCA 388
Langley v Niland [1981] 2 NSWLR 104
New South Wales v Amery (2006) 230 CLR 174
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73
Sklavos v Australasian College of Dermatologists [2017] FCAFC 128
Tate v Rafin [2000] FCA 1582
Walker v Victoria [2011] FCA 258
Waters & Ors v Public Transport Corporation (1991) 173 CLR 349
Wiggins v Department of Defence - Navy [2006] FMCA 800; 200 FLR 438

Texts Cited:
None cited

Category: Principal judgment
Parties: Liam Christopherson (Applicant)
The Star Pty Ltd (Respondent)
Representation:
Counsel:
M Foran (Respondent)
Solicitors:
Applicant (Self-Represented)
Gadens Lawyers (Respondent)

File Number(s): 2023/00268076
Publication restriction: Nil

reasons for DECISION

On 4 September 2022 between the hours of 2:30am and 3:00am Liam Christopherson (the Applicant) and his sister attempted to enter the Star Casino in Sydney, managed by The Star Pty Ltd (the Respondent). They were asked for their identification by the security officer in attendance at the entrance. The Applicant showed his digital NSW driver licence, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Christopherson v The Star Pty Ltd

Details

AGLC: Christopherson v The Star Pty Ltd [2024] NSWCATAD 58
Case: [2024] NSWCATAD 58
Decision Date: 06 March 2024

CaseChat Overview and Summary

The case of Christopherson v The Star Pty Ltd involves the Applicant, Christopherson, bringing a complaint against The Star Pty Ltd, a casino operator, for alleged discriminatory practices. The dispute centres on an incident that occurred on 4 September 2022, where Christopherson claims to have been subjected to age discrimination, disability discrimination, and victimisation by the casino staff. The case was heard by the court, which was required to determine whether the complaint should proceed under the Anti-Discrimination Act 1977.

The legal issues before the court encompassed whether Christopherson's complaint about the incident on 4 September 2022 constituted direct or indirect age discrimination, indirect disability discrimination, and victimisation, and whether leave should be granted for the complaint to proceed. The court had to apply the principles under section 96(1) of the Anti-Discrimination Act 1977 to decide if the complaint met the necessary criteria to be heard.

The court concluded that leave should be granted for the complaint to proceed regarding the alleged direct or indirect age discrimination, indirect disability discrimination in the form of a secondary identification requirement, and victimisation through the actions of asking the Applicant to leave, referring him to police, and issuing a WOL letter. However, leave was refused for the remainder of the complaint. The court found that the allegations pertaining to the incident on 4 September 2022 were sufficiently substantiated to warrant further investigation.

The final orders of the court included granting leave for the complaint to proceed with respect to the specified discriminatory practices and victimisation, while refusing leave for other parts of the complaint. The matter was scheduled for a case conference on 27 March 2024, at 2.00pm.

Orders

Orders of the court

1. Leave is granted under s 96(1) of the Anti-Discrimination Act 1977 for the Applicant’s complaint regarding the incident of 4 September 2022 to proceed with respect to:

(a) Direct and/or indirect age discrimination in contravention of ss 49YZA and 40YZN of the Act;

(b) Indirect disability discrimination in contravention of ss 49B(1)(b) and 49M(1)(a) of the Act in relation to the requirement to provide secondary identification in the form of a bank card; and

(c) Victimisation in contravention of s 50 of the Act with respect to the Applicant’s complaint of age discrimination by:

(i) Asking the Applicant to leave the premises;

(ii) Referring the Applicant to police; and

(iii) After 4 September 2022, issuing the Applicant with a WOL letter.

2. Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 in relation to the remainder of the Applicant’s complaint.

3. The matter is listed for case conference on Wednesday, 27 March 2024, at 2.00pm.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Christopherson v The Star Pty Ltd [2024] NSWCATAD 58

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 14 of 14 shown

Sklavos v Australasian College of Dermatologists
[2017] FCAFC 128 Para 22

…lains the treatment or conduct of the discriminator which resulted in the less favourable treatment: Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 (Sklavos) at [23]. It is therefore necessary to show the discriminator was aware of the disability: see Tate v Rafin [2000] FCA 1582 at [65], [67] an…
Chalker v Murrays Australia Pty Ltd
[2016] NSWCATAD 282 Para 12

…llegations or that the complaint is “not reasonably arguable”: Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].…
Abela v State of Victoria
[2013] FCA 832 Para 1

…The requirement or condition must also be of general application and not directed to the Complainant specifically: see Abela v State of Victoria [2013] FCA 832 at [92], [99] (Abela). In addition, the requirement or condition must be explicitly imposed, or implicit in the conduct which is said to be discriminator…
Walker v State of Victoria
[2011] FCA 258 Para 1

…rement or condition. The phrase “to comply with a requirement or condition” imports the notion of compulsion or obligation (see Walker v Victoria [2011] FCA 258 [189] to [194] per Tracey J). The requirement or condition must also be of general application and not directed to the Complainant specifically: see Abel…
Jones & Anor v Ekermawi
[2009] NSWCA 388 Para 9

…demonstrate to the Tribunal that it was just and fair in the circumstances for leave to be granted, in line with the authorities in Jones v Ekermawi [2009] NSWCA 388 ( Jones ); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 ( Ekermawi ). I explained that the Tribunal would accept…
Nicholls and Nicholls v Director General, Department of Education and Training (No 2)
[2009] NSWADTAP 20 Para 22

…e - Navy [2006] FMCA 800; 200 FLR 438 at [67]. In the matter of Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 (Nicholls) the Appeal Panel of the then Administrative Decisions Tribunal stated at [28]:…
Ekermawi v Administrative Decisions Tribunal of New South Wales
[2009] NSWSC 143 Para 9

…granted, in line with the authorities in Jones v Ekermawi [2009] NSWCA 388 ( Jones ); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 ( Ekermawi ). I explained that the Tribunal would accept the evidence he provided to the Tribunal at its highest for the purpose of determining wheth…
Wiggins v Department of Defence - Navy
[2006] FMCA 800 Para 22

…o show the discriminator was aware of the disability: see Tate v Rafin [2000] FCA 1582 at [65], [67] and [68]; Wiggins v Department of Defence - Navy [2006] FMCA 800; 200 FLR 438 at [67]. In the matter of Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 (Nich…
State of New South Wales v Amery
[2006] HCA 14 Para 24

…It is necessary that the actual requirement or condition be formulated by the Applicant with some precision: see New South Wales v Amery (2006) 230 CLR 174 at 212 (per Kirby J); Catholic Education Office v Clarke (2004) 138 FCR 121 at [103].…
Catholic Education Office v Clarke
[2004] FCAFC 197 Para 24

…mulated by the Applicant with some precision: see New South Wales v Amery (2006) 230 CLR 174 at 212 (per Kirby J); Catholic Education Office v Clarke (2004) 138 FCR 121 at [103].…
Bonella v Wollongong City Council
[2001] NSWADT 194 Para 2

…comparison it is necessary to identify the relevant “base group” to whom the requirement is directed ( Bonella & Ors v Wollongong City Council [2001] NSWADT 194 at [77]). The Act does not prescribe the composition of that group which will vary according to the circumstances of the case.…
Tate v Rafin
[2000] FCA 1582 Para 22

…Dermatologists [2017] FCAFC 128 (Sklavos) at [23]. It is therefore necessary to show the discriminator was aware of the disability: see Tate v Rafin [2000] FCA 1582 at [65], [67] and [68]; Wiggins v Department of Defence - Navy [2006] FMCA 800; 200 FLR 438 at [67]. In the matter of Nicholls and Nicholls v Directo…
Prakash v Bobb Borg Enterprises Pty Ltd
[1999] NSWADT 73 Para 16

…ue - and then the Tribunal determines whether he could possibly succeed in his complaint of discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]).…
Waters v Public Transport Corporation
[1992] HCA 9 Para 1

…dition must be explicitly imposed, or implicit in the conduct which is said to be discriminatory (see Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 360 per Mason CJ and Gaudron J 393 per Dawson and Toohey JJ and at 407 per McHugh J).…

Legislation cited in this decision · 3

Anti-Discrimination Act 1977 (NSW)
1 mention (from Para 4)
Casino Control Act 1992 (NSW)
1 mention (from Para 30)
Liquor Act 2007 (NSW)
1 mention (from Para 30)

Medium Neutral Citation:	Christopherson v The Star Pty Ltd [2024] NSWCATAD 58
Hearing dates:	21 September 2023, 12 October 2023
Date of orders:	06 March 2024
Decision date:	06 March 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	1. Leave is granted under s 96(1) of the Anti-Discrimination Act 1977 for the Applicant’s complaint regarding the incident of 4 September 2022 to proceed with respect to: (a) Direct and/or indirect age discrimination in contravention of ss 49YZA and 40YZN of the Act; (b) Indirect disability discrimination in contravention of ss 49B(1)(b) and 49M(1)(a) of the Act in relation to the requirement to provide secondary identification in the form of a bank card; and (c) Victimisation in contravention of s 50 of the Act with respect to the Applicant’s complaint of age discrimination by: (i) Asking the Applicant to leave the premises; (ii) Referring the Applicant to police; and (iii) After 4 September 2022, issuing the Applicant with a WOL letter. 2. Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 in relation to the remainder of the Applicant’s complaint. 3. The matter is listed for case conference on Wednesday, 27 March 2024, at 2.00pm.
Catchwords:	HUMAN RIGHTS – Discrimination – equal opportunity – provision of services - age discrimination - disability discrimination – direct or indirect – victimisation - leave required for complaint to proceed – principles applying to grant of leave
Legislation Cited:	Anti-Discrimination Act 1977 Casino Control Act 1992 Casino Control Regulation 2019 Liquor Act 2007
Cases Cited:	Abela v State of Victoria [2013] FCA 832 Bonella & Ors v Wollongong City Council [2001] NSWADT 194 Catholic Education Office v Clarke (2004) 138 FCR 121 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCA 388 Langley v Niland [1981] 2 NSWLR 104 New South Wales v Amery (2006) 230 CLR 174 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Sklavos v Australasian College of Dermatologists [2017] FCAFC 128 Tate v Rafin [2000] FCA 1582 Walker v Victoria [2011] FCA 258 Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 Wiggins v Department of Defence - Navy [2006] FMCA 800; 200 FLR 438
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Liam Christopherson (Applicant) The Star Pty Ltd (Respondent)
Representation:	Counsel: M Foran (Respondent) Solicitors: Applicant (Self-Represented) Gadens Lawyers (Respondent)
File Number(s):	2023/00268076
Publication restriction:	Nil