Coady v Yachting Victoria Inc
[2019] FCCA 2095
•2 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COADY v YACHTING VICTORIA INC | [2019] FCCA 2095 |
| Catchwords: HUMAN RIGHTS – Discrimination – Sex Discrimination Act 1984 (Cth) – whether applicant was excluded from participating in Olympic sailing event on the basis of gender – consideration of sporting exception – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15AA Federal Circuit Court Rules 2001 (Cth), rr.15.06A, 15.07 Evidence Act 2008 (Vic), ss.76, 79 Sex Discrimination Act 1984 (Cth), ss.3, 4, 5, 22, 42, 105 |
| Cases cited: Aon Risk Services v Australian National University [2009] HCA 27; 239 CLR 175; 83 ALJR 951; 258 ALR 14 |
| Applicant: | STEPHANIE COADY |
| Respondent: | YACHTING VICTORIA INC |
| File Number: | MLG 914 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 15 and 16 November 2018 |
| Date of Last Submission: | 16 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 2 August 2019 |
REPRESENTATION
| Counsel for the applicant: | Ms O'Brien |
| Solicitors for the applicant: | Arnold Thomas and Becker |
| Counsel for the respondents: | Mr O'Neill |
| Solicitors for the respondents: | M & K Lawyers |
ORDERS
The applicant’s application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 914 of 2016
| STEPHANIE COADY |
Applicant
And
| YACHTING VICTORIA INC |
Respondent
REASONS FOR JUDGMENT
This is an application in which the applicant alleges that the respondent breached various provisions of the Sex Discrimination Act 1984 (Cth). The applicant’s claims relate to the Sailing World Cup Melbourne regatta conducted in 2014 (“2014 regatta”). The respondent was the organising authority for the 2014 regatta. The applicant’s participation in the 2014 regatta and the incidents which led to the initiation of these proceedings are set out in greater detail below.
Procedural history
Before setting out the facts, issues and law, it is important to say something about the lengthy procedural history of this matter.
These proceedings were initially commenced in 2016, following unsuccessful attempts at resolution before the Australian Human Rights Commission (“AHRC”).
The proceedings were initially commenced by both the applicant and her father, with claims made against the respondent and four other named respondents.[1]
[1] The initial proceedings also named Yachting Australia Limited, World Sailing Limited, World Sailing (UK) Limited and Sandringham Yachting Club Inc as respondents.
The applicant[2] then filed a notice of discontinuance on 12 August 2016 seeking to discontinue some of the claims. Further, on 18 August 2016, the applicant filed an amended application by which the second applicant and the second to fifth respondents were removed as parties to these proceedings. Consequently, the applicant then filed points of claim on 16 September 2016 in proceedings naming the current parties only, with Ms Coady being the only applicant and Yachting Victoria Inc as the only respondent.
[2] At the time, the applicant was the first applicant.
On 14 October 2016, the respondent filed an application in a case in which it sought summary judgment pursuant to section 17A of the Federal Circuit Court Act 1999 (Cth), or alternatively an order pursuant to rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) dismissing the proceedings.
His Honour Judge McNab heard the application in a case and on 6 April 2017, ordered that various paragraphs of the applicant’s points of claim be dismissed. Further orders were made for the future programming of the remaining claims. The applicant appealed his Honour’s judgment in respect of the application in a case.
The appeal was heard by Justice Pagone of the Federal Court of Australia on 18 September 2017. On 8 November 2017, Pagone J dismissed the applicant’s appeal.
By consent on 7 December 2017, Pagone J made the following orders consequent upon his judgment in relation to the appeal:
On the applicant’s application for leave to appeal against orders of Judge McNab made 6 April 2017:
1.Leave to appeal be granted in respect of his Honour’s dismissal of paragraph 18(b) of the points of claim of the applicant below.
2.By consent, and on the undertaking of the Applicant by her solicitors that she not include in any amended claim any claim in the nature of the second paragraph of the particulars to the paragraph, the appeal in respect of his Honour’s dismissal of paragraph 18(b) be allowed, with no order as to costs.
3.The proceeding otherwise be dismissed with costs against the applicant for leave to appeal.
The matter then returned to his Honour Judge McNab on 11 December 2017 at which time procedural orders were made, including an order that the applicant file and serve any amended points of claim to give effect to his Honour’s original decision in the strike out application.
Further orders were then made by consent on 2 March 2018 allowing the parties to file and serve further amended points of claim and defence. Consistent with this order:
a)the applicant filed further amended points of claim on 1 March 2018; and
b)the respondent filed its defence on 11 March 2018.
Further procedural orders were made by his Honour Judge McNab on 3 September 2018 providing:
a)the applicant “leave to file a second Further Amended Points of claim by 4:00pm, 3 September 2018 and is take to have done so”;[3]
b)“by 4:00pm, 10 September 2018, the Applicant file a document setting out the orders that are sought including a precise calculation of special and general damages and how those damages are said to have arisen”[4]; and
c)the respondent to file a defence to the further amended points of claim.
[3] Order 1 of the orders made by his Honour Judge McNab dated 3 September 2018. This order appears to have regularised a document which the applicant filed on 23 August 2018.
[4] Order 2 of the orders made by his Honour Judge McNab dated 3 September 2018.
Orders were also made on this occasion for the applicant to file and serve affidavits upon which she intended to rely by 1 October 2018 and the respondent to file and serve affidavits upon which it intended to rely by 22 October 2018.
Preliminary issues
Amendment application
At the commencement of these proceedings on 15 November 2018, the applicant raised two preliminary issues.
The first was an application seeking leave to amend points of claim filed in these proceedings. This application was opposed by the respondent whose counsel indicated that they first received notice of the proposed amendments only days before the commencement of the trial.
As noted in Aon Risk Services v Australian National University (2009) 239 CLR 175 (“Aon Risk Services”) by Gummow, Hayne, Crennan, Kiefel and Bell JJ:
[111]An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend…
[112]A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
[113] In the past it has been left largely to the parties to prepare for trial and seek the court’s assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
[114] Rule 21 of the Court Procedure Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. … It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact on other litigants seeking a resolution of their cases. … A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21…[5]
[5] Aon Risk Services v Australian National University [2009] HCA 27; 239 CLR 175; 83 ALJR 951; 258 ALR 14 at [111]-[114].
In this case, no affidavit material was filed in support of the application for an amendment at such a late stage. Indeed when the application was made, counsel for the applicant said that whilst the proposed changes were “very small… they may have significant consequences”.[6]
[6] Transcript page 3 at lines 11 to 12.
Counsel for the applicant went on to say:
So these are not unimportant but they are, in my respectful submission, clarifying how this case is put and the clarification has been revealed by the documentation that has been provided by the other side. I don’t pretend for one moment to say that, at some point, some long time ago, that some of these documents were provided to my client. I don’t deny that at all. But it is only with the aid of the Rules of Racing which have been provided in the affidavit material that you can understand what it all means.[7]
[7] Transcript page 5 at lines 11 to 17.
In response, not only did the respondent oppose the application on the basis of the delay against the history outlined above, but submitted that it had prepared its case on the basis of the claims made in the particulars of claim filed. The respondent submitted that if the applicant were permitted to amend at this late stage, the respondent would be prejudiced. For example, counsel for the respondent indicated it had, on the basis of the points of claim as filed, made a strategic decision not to call Mr Papantonio. If the amendments sought were permitted, it would need to consider whether it now needed to call Mr Papantonio to give evidence.
Moreover, it was argued that the proposed amendments sought to reintroduce points struck out in the earlier interlocutory stages.
It was also submitted on behalf of the respondent that this prejudice was not explained in circumstances where the applicant has had the documents upon which it is said that these further matters are based since the proceedings were before the AHRC. Whilst the respondent conceded that documents were annexed to the affidavits of various witnesses filed in these proceedings, it was said that those documents were in the applicant’s possession for some time and certainly well before the affidavits were filed.
It is evident that orders made by this court for the filing of material were aimed at ensuring clarity between the parties as to the nature of the claims made and the responses to those claims. This is particularly important in claims made under anti-discrimination legislation which often involve a level of technical complexity.
Various opportunities were provided to the applicant to properly articulate her claim and indeed, numerous versions of the points of claim were filed on the applicant’s behalf. Moreover, the applicant has been legally represented throughout these proceedings.
Having regard to the history of this matter as summarised above and the fact that the applicant in this case has had numerous opportunities to articulate her claim, both in this court and before the AHRC, and having regard to the principles arising from Aon Risk Services, I was not satisfied that it was appropriate to grant the application for leave to further amend the points of claim. I therefore refused to grant the application and indicated that I would provide detailed reasons in my written reasons for judgment.
Expert evidence
The applicant also sought to rely upon the affidavit of Ms Bettina Bayliss sworn 26 September 2018. Objection was taken to this affidavit by counsel for the respondent. The basis of the objection was that Ms Bayliss’ evidence was deemed to be expert evidence but failed to comply with the court’s rules in relation to the giving of expert evidence.
Division 15.2 of the Federal Circuit Court Rules 2001 (Cth) deals with expert evidence. An expert is defined to mean “a person… who has specialised knowledge about matters relevant to the question based on that person’s training study or experience.”[8]
[8] Federal Circuit Court Rules 2001 (Cth), r. 15.06A.
Rule 15.07 of the Federal Circuit Court Rules 2001 (Cth) relevantly provides:
For an expert’s duty to the Court and for the form of expert evidence, an expert witness should be guided by the Federal Court practice direction guidelines for expert witnesses.
Note: While not intended to address all aspects of an expert’s duties, the key points in the guidelines are:
·An expert witness has a duty to assist the Court on matters relevant to the expert’s area of expertise
·An expert witness is not an advocate for a party
·The overriding duty of an expert witness is to the Court and not to the person retaining the expert
·…
As noted by counsel for the respondent and conceded by counsel for the applicant, order 4 of the orders made by his Honour Judge McNab on 3 September 2018 expressly dealt with the question of the form of any expert evidence and relevantly stated:
By 4:00pm, 1 October 2018, the Applicant file Affidavits that she intends to rely upon as evidence in chief and other evidence be filed in accordance with the rules in filing any expert evidence (emphasis added).
Ms Bayliss filed an affidavit sworn 26 September 2018. That affidavit comprises six paragraphs. Ms Bayliss does not provide any evidence as to the factual matters in dispute in this proceeding. Her evidence can only be said to be opinion evidence with respect to whether ‘strength, stamina or physique of a 49er or FX helm’ is a factor which affects competition. As submitted by counsel for the respondent, the affidavit has not been prepared in compliance with the rules relating to expert evidence.
Ms Bayliss’ affidavit did not set out what, if any, information she had been provided with, nor any assumptions that she relied upon in forming the opinion expressed in her affidavit.
When asked to respond to the objection taken to the affidavit of Ms Bayliss, counsel for the applicant stated that the affidavit was filed in accordance with court orders and no notice was given by the respondent that any objection would be taken to that affidavit. It was further submitted that if there were concerns about the affidavit complying with the rules regarding expert evidence, Ms Bayliss could attend to the swearing of a further affidavit attesting to those matters.
Counsel for the applicant then made an application for leave to refile Ms Bayliss’ affidavit over the course of the evening which would rectify any issue of non-compliance with the rules.
Counsel for the applicant also made a further oral application that if the evidence of Ms Bayliss could not be advanced as expert evidence, then leave was sought to lead evidence from Ms Bayliss as to the role of the helm in sailing a 49er.
The respondent opposed these applications and took the same objection to the affidavit of Ms Susan Lindy White affirmed on 30 October 2018.
After hearing from both counsel in relation to this issue, I ruled that the affidavits of Ms Bayliss and Ms White were inadmissible and refused the two oral applications made. I indicated that I would provide detailed reasons for that in my written reasons.
Section 76 of the Evidence Act 2008 (Vic) relevantly provides:
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
However, section 79 provides:
If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
In order to be admissible therefore, expert evidence must satisfy two basic criteria. That is:
a)The ‘expert’ must have ‘specialised knowledge’ based on the person’s training, study or experience; and
b)The opinion must be ‘wholly or substantially’ based on that specialised knowledge.
In this instance, orders were made for the parties to file their evidence in chief in affidavit form. It was therefore incumbent upon the applicant to ensure that any affidavit filed contained all of the evidence that she sought to rely upon, including evidence which qualified Ms Bayliss or Ms White as experts to satisfy each of the criteria set out in paragraph 38 above.
It was argued on behalf of the respondent that neither affidavit satisfied either of the two criteria. Alternatively, at best, it was said that the second factor was certainly not proven in relation to Ms Bayliss. There is some force to this submission.
As noted by the High Court in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588; 85 ALJR 694; 277 ALR 611:
…The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that “the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’ applies to the facts assumed or observed so as to produce the opinion propounded”.[9]
[9] Dasreef Pty Ltd v Hawchar [2011] HCA 21 at [37].
In Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, Deyson JA relevantly said:
[87]There is no doubt about Professor Morton’s authority, experience, qualifications and skill. It is also the case that Professor Morton’s report is quite lengthy and detailed. But, given that the court is not obliged to take the opinion of an expert as conclusive even though no other expert is called to contradict it, can it be said that Professor Morton’s report goes beyond a series of oracular pronouncements? Does it usurp the function of the trier of fact? More vitally, did it furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions?Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved? Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit? Did it contain within itself materials which could have convinced the trial judge of its fundamental soundness?[10]
[10] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [87].
Ms Bayliss’ affidavit does not identify the facts upon which her conclusions are based. Whilst her experience as an elite competitor at a world championship level including in a mixed 49er was conceded by other witnesses in these proceedings, the basis on which she reaches the conclusion set out at paragraph 6 of her affidavit are not properly articulated. Indeed her conclusion is little more than a bare assertion.
Whilst Ms White’s affidavit sets out her professional qualifications as a sports and exercise physician and her current and previous professional positions and affiliations, it fails to disclose the underlying facts upon which her conclusions set out in paragraph 8 of her affidavit are based. Her conclusions too, contain little more than bare assertions.
For the above reasons, together with the applicant’s failure to comply with the rules in relation to expert evidence in circumstances where specific orders were made requiring that, I ruled the affidavits of Ms Bayliss and Ms White inadmissible.
Given the late stage at which an application was made to file an amended affidavit and for the reasons set out above in relation to Aon Risk Services, I also refused the oral application made by the applicant’s counsel.
Evidence
The applicant relied upon the following affidavits filed in these proceedings:
a)affidavit of the applicant file 1 October 2018;
b)affidavit of Mr Paul Coady filed 1 October 2018; and
c)affidavit of Mr Paul Coady filed 12 November 2018.
The respondent relied upon the following affidavits filed in these proceedings:
a)affidavit of Mr William Hugh Moore Bell filed 22 October 2018;
b)affidavit of Mr Mark Turnbull sworn 14 November 2018;
c)affidavit of Mr Emmett Lazich filed 22 October 2018; and
d)affidavit of Ms Cherry Birch filed 22 October 2018.
Each of the witnesses gave evidence and were subject to cross examination.
Having had the benefit of observing each of the witnesses in the course of the hearing, I make the following general observations.
The applicant gave evidence in a frank and open manner. She did her best to answer questions honestly and to the best of her ability. Her evidence is cogent and credible. I accept that she felt embarrassed by the incident on the beach prior to the race on the second day of the regatta.
Conversely, the applicant’s father gave his evidence in a somewhat defensive manner. I found him to be argumentative and non-responsive on occasions. He did not readily make concessions when it was open to him to do so.
I found that Mr Turnbull gave his evidence in an open and forthright manner. He made concessions when appropriate and tried to answer questions asked of him in an open and factual manner. I make the same observations of Mr Bell.
Where there is a difference between the applicant’s father’s evidence and that of either Mr Turnbull or Mr Bell, I prefer the evidence of Mr Turnbull and/or Mr Bell respectively. This is particularly relevant in terms of the factual findings made in respect of the interactions between the applicant’s father and Mr Turnbull and/or Mr Bell on the second day of the regatta.
Mr Lazich was an expert witness. Notwithstanding robust cross-examination, he did not resile from the opinions expressed in his affidavit. I accept his evidence and have relied upon it where relevant.
Evidentiary matters
I will address the following issues in respect of which evidence was given:
a)the applicant’s sailing experience and background;
b)the Sail Melbourne event;
c)the applicant’s registration and competition in the Sail Melbourne event;
d)the protest hearing and outcome;
e)the misconduct hearing and outcome;
f)whether the number ‘AUS109’ identified the boat sailed by the applicant and her father or was a number which personally identified the applicant; and
g)the nature of Olympic level 49er sailing.
Applicant’s sailing experience and background
The applicant gave evidence which was not challenged and which I accept that:
a)she commenced sailing when she was 12 years of age and sailed weekly both during summer and winter. She increased her sailing in the weeks before a national competition;
b)she competed in the national competition in Queensland in a 29er;
c)she competed in junior competitions with friends from her yacht club and also in the open competition with her father; and
d)she took part in weekly competitions at the Mordialloc and Sandringham clubs as well as various regattas throughout the year in different locations in Victoria.
The applicant also gave evidence that in 2013, she participated in the World Sailing ‘Sail Melbourne’ 29ers with Mr Jeremy Elmslie, a member from her club.
The applicant stated that in 2014, she started to sail 49ers, training with Mr Elmslie and her father.
The nature of the Sail Melbourne event
Mr Turnbull was engaged as the Event Director for the Sail Melbourne event in 2014. In his capacity as Event Director, he was responsible for all aspects of the regatta other than the running of the sailing events themselves.
Mr Turnbull gave the following evidence about the history of the Sail Melbourne regatta, which was not challenged and which I accept:
a)until 2008, the event was a series of separate sailing regattas held under the banner of Sail Melbourne, including the Sail Melbourne Olympic classes regatta and the invited classes regatta;
b)in 2008, the Victorian State Government provided significant funding to the event;
c)also in or about 2008, World Sailing created the Sailing World Cup, an annual premier sailing circuit of regattas sailed in Olympic format, which included Melbourne, USA, France, the UK, China and UAE;
d)the Sailing World Cup was open to those classes of boats which were to be sailed in the forthcoming Olympic games;
e)in order to comply with its agreement with World Sailing in hosting the Sailing World Cup, the respondent issued two Notices of Race (“NOR”) for the 2014 regatta:
i)one for the Sailing World Cup Olympic classes which was limited to those classes which were as close as possible to the Olympic format of regatta as possible; and
ii)one for the Sail Melbourne invited classes regatta, in respect of which there was greater flexibility of formats and classes.
The NOR for the Olympic classes at the 2014 regatta relevantly provided:
3.5.Olympic Gender requirements will apply for each Olympic class event.
…
3.8.The regatta is open to boats competing in events chosen for the 2016 Olympic Sailing Competition and the 2016 Paralympic Sailing Competition and IKA Kite Boards.[11]
[11] Annexure MT-2 of the affidavit of Mr Mark Turnbull sworn 19 and filed 22 October 2018.
At 3.8, it goes on to list the events, the class and the event quota. It relevantly includes the following:
Event
Class
Event quota
Men’s Two Person Dinghy (High Performance)
49er
100
Women’s Two Person Dinghy (High Performance)
49FX
80
The NOR for the invited classes regatta includes an open FX class, allowing the competitors to include any combination of two (male or female) sailors.[12]
[12] Annexure MT-3 of the affidavit of Mr Mark Turnbull sworn 19 and filed 22 October 2018.
It is common ground that the Olympic class 49er events were conducted from 8 to 13 December 2014.
The applicant’s registration and competition in the Sail Melbourne event
The applicant stated that in registering to compete in the 2014 regatta, she intended to sail with Mr Elmslie as her crew. She said that she didn’t know any female crews who were strong enough for the crew role in the 49ers Olympic class.
The applicant said that Mr Elmslie then told her that he was unable to compete so she asked her father to crew for her.
The applicant’s evidence about her participation in the 2014 World Sailing Sail Melbourne 49er competition was as follows:
a)On 27 September 2014, she completed the online registration for the Sail Melbourne regatta and her father paid the registration fee; and
b)She conceded in cross examination that she did look at the NOR for the Olympic class events and that she understood at the time that she was entering a ‘men’s event’.[13]
[13] Transcript page 36 at lines 14 to 15.
The applicant’s registration documentation was annexed to Mr Turnbull’s affidavit.[14] It confirms that the applicant was the nominated skipper and Mr Coady was the nominated crew. The registration documentation also identifies the ‘Sail No’ as ‘109’. The Equipment Limitation Form also identifies the ‘Sail No’ as ‘AUS109’.
[14] Annexure MT-9 of the affidavit of Mr Mark Turnbull sworn 19 and filed 22 October 2018.
Whilst there is some dispute between the parties as to whether the records of the races in which the applicant competed are accurate, it is not in dispute that on 8 December 2014, the applicant and her father participated in the Olympic class 49er races, although they had to retire early following a break to their spinnaker pole in the second race. They advised the race management boat that they would be retiring for the day as they had damaged the mast. The records of results for the first three races on 8 December 2014 show that they applicant did not finish race 1 or 2 and did not compete in race 3. The applicant does not take issue with these results.
The applicant gave the following evidence as to what occurred on 9 December 2014:
a)as she and her father were preparing for the next race, Mr Papantonio approached her and her father and said that they were in violation of the Olympic gender rules and were not allowed to race. The applicant said words to the effect of “you can’t do that”. Her father said words to the effect of “that’s discriminatory”.
b)At this point, Mr Papantonio became aggressive, raised his voice and said “you can’t sail with a female helm! You are going to be disqualified.”
c)Her father then asked Mr Papantonio to submit a protest, to which he agreed and that her father told him that they would not sail if a protest was lodged.
d)A short time later, Mr Papantonio returned with another person and they again said that the applicant and her father would be disqualified and her father again responded that that was ‘discriminatory’. Mr Papantonio and the other man then began to shout words to the effect that the applicant could not sail.
e)The applicant then became upset at the situation and her father told her to get ready in the change rooms and he would finish getting the boat ready. She said that after she got changed, she returned to the boat and she and her father waited for about another two hours for the race to commence. No protest was lodged during this time and Mr Papantonio was on the shore assisting another boat with getting ready.
f)The applicant and her father completed the three races that day and then returned to shore.
g)On her return to the shore, the applicant checked the regatta office but there were no results listed for her boat for that day’s races.[15]
[15] Transcript pages 24 to 25.
In response to some questions from the respondent’s counsel the applicant said that it was both hers and her father’s decision to enter the 49er class. She was aware that mixed Olympic class was also available and she and her father could have entered; however, she said that to compete in that race, they needed to sail a ‘Nacra’ and “we didn’t have a Nacra boat, so it was not an option.”[16]
[16] Transcript page 41 at lines 3 to 4.
The applicant also stated that a man, who she believes may have been Mr Turnbull approached her on the morning of 9 December 2014, and suggested that if she wanted to continue to sail she could sail in the open 49FX. She responded with, “but we don’t have an FX rig we have a 49er rig. That places us at advantages over everyone else so we decided not to sail in that event.”[17]
[17] Transcript page 43 at lines 10 to 14.
The applicant then said:
It’s very, very difficult to find a female that is suited to me. I’m not big and strong. I need a very, very strong crew to help me in the female rig if I wanted to sail in – with a FX rig that would have been also another option but finding a female rig is very difficult. A female crew, sorry.[18]
[18] Transcript page 44 at lines 11 to 17.
Mr Coady also gave the following evidence in relation to the applicant’s registration for and participation in the regatta:
a)On 27 September 2014, he completed the online registration for the Sail Melbourne Sailing World Cup regatta to enter the 49er men’s Olympic class.
b)On 8 December 2014 being the first day of the regatta, he and the applicant competed in the first day of sailing but retired early.
c)On 9 December 2014, Mr Papantonio approached him and the applicant at about 10:00am and said words to the effect that they were in violation of the Olympic gender rules and were going to be disqualified.
d)He told Mr Papantonio that he could not disqualify someone without a protest hearing being conducted and that to do so was against the rules.
e)A short time later, Mr Papantonio returned with another person and both said words to the effect of “she’s not sailing”. He told them that they would not sail if a protest was lodged.
f)He was then approached by another person whom he believed was a representative of the respondent and explained that if a protest was lodged they would not sail. Mr Coady’s evidence was that this person told him words to the effect that it would be easier for him if the applicant and Mr Coady did not sail, but he would not take any action if he did sail unless a protest was lodged.[19]
g)A further conversation occurred between himself and Mr Papantonio who was accompanied by a fourth man who introduced himself as one of the jurors. Mr Papantonio said that he could not sail with a female helm and that he would be disqualified for doing so to which Mr Coady responded that that would be in breach of the Sex Discrimination Act. Mr Coady asked if a protest would be lodged to which Mr Papantonio responded in the affirmative. Mr Coady then confirmed that if a protest was lodged, he would not sail.
h)Mr Coady further states that at about 10:15am, he sent an email to the organising authority complaining about Mr Papantonio’s conduct. He says that at about 12:00 noon, Mr Papantonio and members of the jury walked past him and the applicant and boarded the jury boat.
i)Mr Coady ultimately conceded that in the discussion with Mr Papantonio prior to races 4, 5 and 6, he was warned that if he and the applicant continued in the regatta, they would be disqualified.[20] He also conceded that despite this warning, he and the applicant sailed in those races. So much is not in dispute.
j)As no protest had been lodged when the race was due to start, he and the applicant proceeded to sail to the race area. He alleged that the jury boat was following them.
k)As they were lining up for the start of their race, another competitor told them to “get off the course”. He says that the people aboard the jury boat appeared to find these comments amusing. Mr Coady also said that another boat went around them and told them to “F*** off”.
l)At no stage during the day’s racing was he or the applicant advised that a protest had been lodged. When they returned to shore at the end of the day, their results had not been recorded.
m)Upon returning to the shore, Mr Coady spoke to the president of Yachting Victoria, Mr Ian Cunningham and told him what had happened. Mr Cunningham suggested he speak to Mr Turnbull. Mr Coady says that he then checked the results screen at the regatta office and confirmed that their results “had been removed”.[21]
n)Mr Coady then spoke to Mr Turnbull who confirmed that he and the applicant had been “removed from the regatta because we were ineligible to compete.”[22] He alleges that Mr Turnbull said that Mr Papantonio had been abusing everyone about this, including Mr Coady.[23]
o)Mr Turnbull then asked if he and the applicant would be prepared to continue sailing without earning ISAF points. Mr Coady alleges that Mr Turnbull told him that “this had been done in a previous Sail Melbourne for a mixed crew that competed in the Women’s Olympic FX class.”[24] Mr Coady agreed, “provided we were put back on the race management system and our results recorded”.[25]
[19] Affidavit of Mr Paul Coady sworn and filed 1 October 2018 at paragraph [10].
[20] Transcript page 62 at lines 13 to 15.
[21] Affidavit of Mr Paul Coady sworn and filed 1 October 2018 at paragraph [7].
[22] Affidavit of Mr Paul Coady sworn and filed 1 October 2018 at paragraph [11].
[23] Affidavit of Mr Paul Coady sworn and filed 1 October 2018 at paragraph [21].
[24] Affidavit of Mr Paul Coady sworn and filed 1 October 2018 at paragraph [11].
[25] Affidavit of Mr Paul Coady sworn and filed 1 October 2018 at paragraph [11].
Mr Papantonio did not give any evidence in these proceedings.
Mr Turnbull’s evidence, which I accept, was that he first became aware of an issue involving the applicant and Mr Coady when he was approached about it on the afternoon of 9 December 2014. He said that when he arrived at the regatta office, he saw a male, whom he later learnt was Mr Coady, speaking to one of the jury members or race committee members “loudly, very aggressively and swearing”.[26]
[26] Affidavit of Mr Mark Turnbull sworn 19 and filed 22 October 2018 at paragraph [29].
Mr Turnbull then said that he invited Mr Coady to discuss the matter away from the regatta office, which they then did. As Mr Coady calmed down, they started to explore how the applicant might be able to continue to sail in the regatta. Mr Turnbull’s evidence was that his discussion was premised on the fact that an error had been made in accepting the applicant’s registration in the men’s Olympic event; however, he was keen to find a solution which would allow the applicant to continue to participate in the regatta in some way.
Mr Turnbull denied that he discussed ISAF ranking points when he spoke to Mr Coady. He said that the issuing of such points was not a matter which was within his remit.
On balance, I accept the applicant’s evidence and that of Mr Coady that on the morning of 9 December 2014, Mr Papantonio approached them and told them that as they were not compliant with the NOR gender rules, they were not eligible to compete in the Olympic class 49er race.
I also accept that Mr Coady told Mr Papantonio that if a protest was lodged, he and his daughter would not compete. I further accept that Mr Coady raised his concerns about the comments made by Mr Papantonio as being potentially discriminatory.
The applicant gave evidence that there was an incident with another boat at the commencement of the first race on 9 December 2014. Her evidence in relation to this incident was as follows:
a)she noticed a boat with a jury flag following her boat, but the jury boat did not approach them;
b)at the start line, another competitor began to yell at her to get off the course and then sailed their boat trying to collide with her boat and she took action to avoid a collision;
c)she saw the members of the jury boat watch this, laugh and then speed off; and
d)the jury boat then followed her boat at a distance for the remainder of the day.
Mr Bell gave evidence that:
a)he was appointed as one of the jury members for the 2014 regatta;
b)as part of this role, he was required to be on the water each day with another member of the International Jury in a manoeuvrable inflatable boat with an outboard motor, known as ‘a rib’;
c)on 9 December 2014, he was rostered, together with Mr Sloan, to be on the course where the men’s 49er class were racing;
d)Mr Sloan told him that one of the boats in the men’s 49 race had been asked not to race on the basis that it was ineligible as it had a mixed crew and a sail number of AUS109;
e)at the commencement of the first race, he observed AUS109 on a collision course with another skiff in circumstances where AUS109 was required to give way to the other skiff resulting in the skiff capsizing;
f)he heard a lot of shouting and yelling between both skiffs but as he was about 30 meters away, he could not hear exactly what was said;
g)he denied that the jury boat was following the applicant;[27] and
h)he denied that he or Mr Sloan laughed when they observed the ‘near miss’ between the applicant’s boat and another competitor described above.[28]
[27] Affidavit of Mr William Hugh Moore Bell sworn 19 and filed 22 October 2018 at paragraph [23(a)(i)].
[28] Affidavit of Mr William Hugh Moore Bell sworn 19 and filed 22 October 2018 at paragraph [23(a)(ii)].
I prefer Mr Bell’s evidence to that of the applicant and Mr Coady in relation to what occurred on the water on 9 December 2014. Whilst I do not doubt that the applicant perceived the jury boat’s actions in the manner she has described, an equally probable and innocent explanation of the jury boat’s conduct on that day has been given by Mr Bell. Mr Bell has given credible evidence about what he and Mr Sloan did at the time. The applicant’s evidence is arguably coloured by the incidents which had occurred earlier on the beach that morning and the direction she and her father had been given about their eligibility to race in that event.
Protest hearing and outcome
Mr Coady says that at about 6:30pm on 9 December 2014, he received a call from Mr Turnbull who explained that a protest had been lodged but the applicant was not required to attend. Mr Turnbull asked that Mr Coady attend “at seven”. He says he understood that to be 7:00am the following morning.[29]
[29] Affidavit of Mr Paul Coady sworn and filed 12 November 2018 at paragraph [13].
Mr Coady says that he then received a further call at about 7:15pm that evening from Mr Turnbull asking why he was not at the protest meeting. The meeting was then rescheduled for 8:00pm that evening to allow Mr Coady to attend.
Mr Coady’s evidence in chief in relation to this meeting was as follows:
At approximately 8:00pm I arrived at (Sandringham Yacht Club). I entered the protest room and was handed a protest form at the start of hearing. The protest meeting was conducted, and the decision read to me. Stephanie Coady’s personal sail number was disqualified from races 4, 5 and 6.[30]
[30] Affidavit of Mr Paul Coady sworn and filed 12 November 2018 at paragraph [13].
Mr Bell also gave evidence that he attended the protest hearing later on 9 December 2014 in relation to skiff AUS109. His evidence is that the protest was made by the Race Committee and the International Jury were provided with certain protest documents annexed to his affidavit.[31] The protest related to an allegation that Mr Coady had sailed in breach of the NOR.
[31] Annexures BB2 and BB3 of the affidavit of Mr William Hugh Moore Bell sworn 19 and filed 22 October 2018.
Mr Bell gave evidence that the International Jury heard evidence from:
a)The protestor, Mr Sulis Papantoniou, Race Committee representative;
b)Mr Antonio de la Madrid, World Sailing Technical Officer who was the Race Committee witness; and
c)The protestee, Mr Coady, as representative of the AUS109.[32]
[32] Affidavit of Mr William Hugh Moore Bell sworn 19 and filed 22 October 2018 at paragraph [19].
After hearing evidence, the International Jury considered the matter and called the parties back in to advise them of their decision. A summary of the protest decision is at BB4. That document records, among other things, that AUS109 scored ‘DSQ’ in races 4, 5 and 6.
Mr Bell’s evidence, which I accept, was that all members of the jury were unanimous in relation to their findings at the protest meeting, and the protest hearing decision was documented and signed at 21.08.[33]
[33] Annexure BB4 of the affidavit of Mr William Hugh Moore Bell sworn 19 and filed 22 October 2018.
Misconduct hearing and outcome
It is common ground that following the protest hearing, Mr Coady was issued with notification of a gross misconduct proceeding against him under rule 69.
Mr Coady stated that he was informed of this procedure by the jury chairman, Mr Douglas Sloan and that the basis of the gross misconduct allegation was for “sailing in the regatta”. He deposes that he was stunned and admitted to using an expletive in response and then got up and left the meeting room.
Mr Coady said that Mr Sloan then followed him out across the foyer and into the car park, hit him in the chest and left. He then noticed that a document had been thrown to the ground which was the ‘69 gross misconduct report’.[34]
[34] Affidavit of Mr Paul Coady sworn and filed 12 November 2018 at paragraph [17].
Mr Coady also said that the document he was served with at the time was the document which was annexed as BB2 to Mr Bell’s affidavit (“BB2”), and read as follows:
Report to the International Jury
49er AUS109
An entry was reserved for this boat to race on the 49er class in the Sail Melbourne Sailing World Cup 2014.
On the 8th December 2015 (sic) at 17:30h it was discovered that one of the sailors was female. The first opportunity to inform the boat that the entry was invalid according to the Notice of Race (3.5 and 3.8) was at 10:30h on 9th December 2014. This was undertaken, at that time in the dinghy park, verbally by the ISAF PRO and the Technical Delegate. The boat was informed that their entry was not in compliance with the NOR and that they should not race further in this regatta.
The boat sailed in Races 4, 5 and 6 after being informed that she was in violation of the NOR.
I believe that this is in contravention of RRS 69.1(a) and therefore submit this report.
17:50 9th December 2015
PRO
Athanasios Papantoniou[35]
[35] Annexure BB2 of the affidavit of Mr William Hugh Moore Bell sworn 19 and filed 22 October 2018.
Mr Bell’s evidence is that BB2 was not the document which was served on Mr Coady in relation to the misconduct proceeding. Rather, he stated that the document served on Mr Coady in relation to the misconduct was Exhibit C, which read as follows:
Today, 9th of December 2014, the International Jury at ISAF Sailing World Cup Melbourne 2014 received a report from the event Principal Race Officer concerning you racing in race 4, 5 and 6 after being informed at 10.30 that you are not in compliance with NOR 3.5 and 3.8.
In order to determine whether the alleged actions constitute a gross breach of good manners and sportsmanship, a hearing will be held at the Jury Office on 9th of December at 21.30. You are required to attend the hearing.
…
Attached is the report received from the Event Principal Race Officer.
Douglas Sloan
International Jury Chairman[36]
[36] Exhibit C.
Although not signed by Mr Sloan, Exhibit C has a time of 6:45pm noted at the top of the document. It can be reasonably inferred from this, and I do so, that Exhibit C attached a copy of BB2.
I find that Mr Sloan provided Mr Coady with Exhibit C and BB2.
Mr Coady said that upon returning to the foyer, “a heated argument” occurred with Mr Sloan.[37] He says that he asked Mr Sloan several times if he would be afforded procedural fairness at the gross misconduct hearing and based on the responses from Mr Sloan, he decided not to attend the meeting. The meeting was subsequently conducted in Mr Coady’s absence.
[37] Affidavit of Mr Paul Coady sworn and filed 12 November 2018 at paragraph [18].
Mr Turnbull also gave evidence that whilst he was attending the Sailing World Cup dinner at the Sandringham Yacht Club that evening, he was asked to go downstairs due to a disturbance in the protest room. Mr Turnbull deposed that he observed Mr Coady “leaving the protest room in a seemingly very agitated state… swearing at the International Jury Chairman Doug Sloan by saying “Fuck you” in the Yacht Club foyer in a loud voice.”[38]
[38] Affidavit of Mr Mark Turnbull sworn 19 and filed 22 October 2018 at paragraph [37].
Clause 69 of the Racing Rules of Sailing relevantly provides as follows:
69.1
(a)A competitor shall not commit gross misconduct, including a gross breach of a rule, good manners or sportsmanship, or conduct bringing the sport into disrepute. Throughout rule 69, ‘competitor’ means a member of the crew, or the owner, of a boat.
(b)An allegation of a breach of rule 69.1(a) shall be resolved in accordance with the provisions of rule 69.
69.2
(a) When a protest committee, from its own observation or a report received from any source, believes that a competitor may have broken rule 69.1(a), it may call a hearing. If the protest committee decides to call a hearing, it shall promptly inform the competitor in writing of the alleged breach and of the time and place of the hearing…
(b)A protest committee of at least three members shall conduct the hearing, following the procedures in rules 63.2, 63.3(a), 63.4 and 63.6.
(c)If it is established to the comfortable satisfaction of the protest committee, bearing in mind the seriousness of the alleged misconduct, that the competitor has broken rule 69.1(a), it shall either:
(1)warn the competitor or
(2) impose a penalty by excluding the competitor and, when appropriate, disqualifying a boat, from a race or remaining races or all races of the series, or by taking other action within its jurisdiction. A disqualification under this rule shall not be excluded from the boat’s series score.[39]
[39] Annexure BB1 of the affidavit of Mr William Hugh Moore Bell sworn 19 and filed 22 October 2018.
In the course of cross examination, Mr Bell conceded that Exhibit C did not contain any reference to a number of the matters which were ultimately the subject of the misconduct proceeding and the findings of gross misconduct against Mr Coady. As such, those matters had not been put to Mr Coady in writing as required by rule 69.
In particular, the following matters were noted in the jury’s findings of gross misconduct:
a)that he had “falsely entered the regatta by acknowledging that he would comply with the Conditions of Entry an Notice of Race and then did not”;[40]
b)that he behaved rudely and aggressively towards the PRO in the boat park;
c)that he further offended the PRO before, during and after the hearing thereby engaging in bad manners and poor sportsmanship;
d)that he used “repeated profanity, abusive, confrontational and threatening behaviour, both during and after the protest hearing, in the jury room and in public areas of the yacht club”[41]; evidence of further bad manners and poor sportsmanship;
e)that he had accused jury members of having been rude to his daughter in circumstances where jury members had not spoken to his daughter at any time; and
f)that he had engaged in offensive and disrespectful behaviour towards members of the yacht club, participants in the regatta and the public in the boat park, the yacht club foyer and other public places.[42]
[40] Annexure BB6 of the affidavit of Mr William Hugh Moore Bell sworn 19 and filed 22 October 2018.
[41] Annexure BB6 of the affidavit of Mr William Hugh Moore Bell sworn 19 and filed 22 October 2018.
[42] Transcript pages 131 to 134.
In the course of Mr Bell’s cross examination, the following exchange also occurred:
Ms O’Brien:Okay. And what I put to you is that any conduct that you were relying on had – on Mr Coady’s part, which I accept in part may have been assessed as properly as gross – had nothing to do with the boat. It all happened outside the boat. … And what I’m saying to you is you used this mechanism to get Stephanie Coady out of this regatta, and you did that quite deliberately? --- There’s some serious allegations contained in that, and I deny those because it was not preconceived. There was never any attempt to exclude Stephanie Coady whatsoever.
… --- The boat containing Mr Coady was definitely excluded.
…
Ms O’Brien:… I suggest you did it because you knew that this was the only way you were going to get rid of her because the eligibility hadn’t been challenged under the rules in accordance with part 6 on the first day. So this was the only way you could get her permanently out of the regatta, wasn’t it? --- We did not set out to get rid of Stephanie Coady.
Ms O’Brien:And I suggest to you it was a subterfuge. It gave the appearance of not discriminating against Stephanie Coady whilst achieving that very outcome.
…
Do you disagree with that? --- Absolutely.[43]
[43] Transcript pages 139 at line 33 to page 141 at line 12.
This exchange goes to the very heart of the applicant’s contention; namely, that the misconduct proceeding and the outcome of that proceeding, was not only in breach of the Rules of Racing, but more importantly was a ruse to provide a basis to exclude the applicant from the regatta.
Mr Bell, who was a member of the jury for the 2014 regatta, gave evidence that Mr Coady was loud, insulting, rude, threatening and verbally abusive during the course of the protest hearing.[44] I accept that evidence and prefer that evidence to that of Mr Coady.
[44] Affidavit of Mr William Hugh Moore Bell sworn 19 and filed 22 October 2018 at paragraph [21].
I find, on the balance of probabilities, that the jury considered the protest lodged by Mr Papantoniou in relation to the breach of the rules, determined that matter by declaring that the boat AUS109 was to be scored as disqualified for races 4, 5 and 6 and, had Mr Coady not engaged in further inappropriate conduct, that would have been the end of the matter. At that point, AUS109 had not been disqualified from further participation in the 2014 regatta. It was still possible for the applicant and her father to continue to participate in an alternative class.
I also find, on the balance of probabilities, that Mr Coady’s behaviour during the course of the protest hearing was such that the jury determined that it was appropriate to conduct a gross misconduct hearing. After being advised of this proposed course, Mr Coady’s further behaviour, which by his own admission included engaging in the use of abusive language, simply added more fuel to the fire.
I find that the jury’s decision to discipline Mr Coady by excluding him from the regatta, excluding the boat from the regatta and disregarding all scores received, was based solely on Mr Coady’s behaviour both during and after the protest meeting. The fact that Mr Coady was not given full details of the alleged gross misconduct in the circumstances, whilst arguably in breach of the Racing Rules of Sailing, does not give rise to the conclusion that the real reason for this action was to exclude the applicant on the basis of her gender.
AUS109
The protest decision records the protestor as the Race Committee and the protestee as AUS109. The applicant argued that ‘AUS109’ is a reference to her personally. The respondent alleges that it is a reference to the boat that the applicant and her father were sailing. The protest decision records the conclusions reached as follows:
1.The protest time limit was extended under RRS 61.3.
2.AUS109 did not comply with NOR 3.5 and 3.8 and RRS 3.[45]
[45] Annexure BB4 of the affidavit of Mr William Hugh Moore Bell sworn 19 and filed 22 October 2018.
The decision record notes the decision as follows:
AUS109 is scored DSQ in race 4, 5 and 6
The competitor registration form completed by the applicant identifies the ‘Sail No’ as ‘109’. Similarly, the ‘Equipment Limitation Form’ identifies the ‘Sail No’ as ‘AUS109’.
Therefore, there is a dispute as to whether the outcome of the protest hearing was that the boat AUS109 was disqualified from races 4, 5 and 6 or whether the applicant herself was the subject of the disqualification. Mr Coady maintains that it was the applicant that was disqualified on the basis that the disqualification related to AUS109 which was the applicant’s personal identification number.[46]
[46] Transcript page 71.
Mr Coady also gave evidence that the International 49er Association issues a personal sail number and issued the applicant with the number AUS109.
In cross examination, Mr Bell did not agree with this proposition. His evidence was that the sail number was allocated to a boat and that is the sail number used to enter the regatta,[47] although he confirmed that he did not have any familiarity with the personal sail number system of the Olympic 49er class, ISAF class.[48] The following exchange then occurred:
Ms O’Brien:… So there’s no dispute now that AUS109 refers to a personalised sail number? --- It is the sail number. It’s not an identity number of the competitor. The World Sailing has its own competitor identity number which is different to that one.[49]
[47] Transcript page 111 at lines 5 to 8.
[48] Transcript page 118 at lines 1 to 3.
[49] Transcript page 118 at lines 21 to 23.
The applicant has not established on the balance of probabilities that the sail number AUS109 was a reference to her personally. It is more probable than not that it was a reference to the boat that the applicant was sailing together with her father.
The outcome of the protest hearing was that the results for races 4, 5 and 6 for AUS109 were to be recorded as ‘DSQ’. As stated above however, this did not disqualify AUS109 or the applicant, or indeed Mr Coady from continuing to participate in the 2014 regatta in another class.
The nature of Olympic level 49er sailing
The applicant gave evidence that as the helm:
a)she was responsible for steering the boat, trimming the jib and taking the mainsail;
b)she is attached to the boat;
c)in high winds, her crew (in this instance, Mr Coady) would hook her on and that she would steer whilst hanging out of the boat;
d)she uses her body weight to keep the boat upright, although she stated that you can also use your sails to help with that;
e)she would never sit down, at most she would crouch whilst sailing; and
f)there needs to be a level of co-ordination between the two sailors on a 49er.[50]
[50] Transcript page 31.
In the course of cross examination, the applicant conceded that the 49FX is the boat that women sail in the Olympics and that the 49er is the boat which men sail in the Olympics,[51] although the applicant noted that women had previously sailed the 49er at the Olympic level.[52]
[51] Transcript page 29.
[52] Transcript page 29 at lines 42 to 43.
The applicant also conceded that whilst the hull of both of the 49er and the 49FX is the same and that they are both high performance skiffs, the 49er has bigger sails than the 49FX.[53] She also conceded that as a high performance skiff, these boats are among the fastest and potentially the most dangerous boats which are sailed by experienced sailors.[54]
[53] Transcript page 30 at lines 10 to 11.
[54] Transcript page 30 at lines 30 to 41.
As stated above, the applicant conceded that at the time of registering, she was aware that she was entering a men’s race.[55]
[55] Transcript page 36 at lines 3 to 4.
In the course of cross examination, Mr Coady conceded that at the 2016 Rio Olympics, they had two classes, being the 49er for the men and the 49FX for the women.[56]
[56] Transcript page 52.
Mr Lazich gave evidence in these proceedings. He has a background in both sailing at an elite level for Australia and also coaching the Australian Sailing Team in various Olympic classes. He discloses in his affidavit that he is an employee of Australian Sailing, but acknowledges that his paramount duty is to assist the court to determine the issues before it on matters relevant to his expertise and experience.
As to the background to the introduction of the 49FX, Mr Lazich relevantly stated:
The introduction of the 49FX was in part needed because the open class 49er specifications changed in 2009 with a larger mast and sail to make it the men’s high performance two-handed skiff. The smaller 49FX rig with a smaller mast and sails (including a smaller spinnaker) gave a lighter body weight sailor (which statistically was the case across the mean for female sailors) a greater ability to handle the skiff in a range of different strength breezes and sailing conditions.[57]
[57] Affidavit of Mr Emmett Lazich sworn and filed 22 October 2018 at paragraph [12(d)(ii)].
He further stated:
Even with the small FX rig the 49FX still results in a load versus body weight ratio which is higher for women than the men sailing the 49er. Quite simply, the FX rig is proportionally harder for women to sail than the 49er is for men that is a function of body weight versus the size of the rig. …In every elite event in which I have been involved since the introduction of the 49FX, and even the 49FX is tailored to encourage women to participate, we continue to have significantly lower numbers of women entrants than men – sometimes as low as 50% less.[58]
[58] Affidavit of Mr Emmett Lazich sworn and filed 22 October 2018 at paragraph [12(d)(iii)].
Mr Lazich also set out his view of the role of the helm on a 49er as follows:
In helming a 49er there are a number of forces throwing the helm’s body around particularly when the person has one hand on the tiller. To helm a 49er is very skilful and if the helm makes one mistake it generally means that both the helm and the crew will be thrown either into the water or across the boat.[59]
[59] Affidavit of Mr Emmett Lazich sworn and filed 22 October 2018 at paragraph [12(g)(ii)].
It is apparent from Mr Lazich’s responses to questions from counsel for the applicant that he does not say that women cannot sail the 49er or indeed, that a mixed crew with a female helm cannot sail the 49er. Rather, it is his evidence that such an arrangement will make the competition uneven.
Mr Lazich conceded that over the years, adjustments had been made to the 49er rig using lighter components and slightly different shaped sail. However, he did not agree that this resulted in the 49er being more suitable to a female helm in a competitive environment. Rather, he stated that one of the reasons which led to the changes was concern about the male sailors having to diet and lose weight to remain within the overall crew weight.
… before they changed the formula of the boat, … men to sail the old formula of boat, the pre-2009 version, weight loss and dieting was common and standard, and … when they made the new spec boat all of a sudden the boys didn’t have to diet any more. … so instead of having two people, … having salads for dinner, they can eat normal meals. You end up with more muscle in the boat park. It’s just a much better formula of boat. … average athletic males could sail in their happy, normal body weight; no more dieting.[60]
[60] Transcript pages 155 at line 34 to page 156 at line 12.
Indeed, Mr Lazich’s evidence is that after these changes were introduced, the average weight of the sailors actually increased.[61]
[61] Transcript page 172.
Mr Lazich expressly deposes that strength, stamina and physique of competitors is relevant to sailing, including sailing at an elite level. He provided the following evidence:
…In my opinion sailing is a sport in which strength, stamina and physique is relevant as well as a range of other physical and mental attributes such as co-ordination and concentration.
The degree of relevance of strength, stamina and physique will depend on the different physical demands being placed on the individual sailor which in turn will depend on the type of boat and job/role of the individual on that boat.[62]
[62] Affidavit of Mr Emmett Lazich sworn and filed 22 October 2018 at paragraph [12(a)(i)-(ii)].
Mr Lazich went on to say that this is particularly so in a direct and significant way in elite sailing:
By way of illustration, if a crew on a 49er was aiming simply to get around the course to finish in a local yacht club race on a Saturday, they could probably do so, especially in light or medium strength winds, with minimal (but still some) strength, stamina and physique.
By way of comparison however, if you look at the crew sailing a 49er or 49FX at an elite (Olympics) level, these sailors need to be very fit athletics who are able to sail their boat to its maximum potential for hours at end in a variety of wind and sear (sic) conditions.
…
The significant relevance of and emphasis on individual sailors strength, stamina and physique referred to above is increased further when sailing in an elite regatta where the race intensity is so high. Also the crews typically have to complete three races back to back in a few hours on one day and then repeat that process over several consecutive days.[63]
[63] Affidavit of Mr Emmett Lazich sworn and filed 22 October 2018 at paragraph [12(b)(ii),(iii) and (vii)].
Mr Lazich also gave evidence that the decision to establish different men’s and women’s classes at the Olympic level and to have boats in each class which are rigged differently, was expressly made to try and encourage greater female participation at the Olympic level. He deposed that prior to these changes, there had not been a single female compete at the Olympic level in the open 49er class.
Mr Lazich also explained the difference between the two rigs and the practical effects of those differences and the body impact to weight ratio of men compared to women, and said:
In every elite event in which I‘ve been involved since the introduction of the 49FX, and even though the FX is tailored to encourage women to participate, we continue to have significantly lower numbers of women entrants than men ... In my opinion, that is because the reality is that so few women can handle a 49FX at the elite level. Most of the women sailing at this level are quite young … and what they do is very special. They’re quality athletes in every sense of the word.[64]
[64] Affidavit of Mr Emmett Lazich sworn and filed 22 October 2018 at paragraph [12(b)(iii)].
Mr Lazich states that the role of the helm includes:
a)steering;
b)trimming the jib and/or the mainsail as appropriate;
c)utilising body weight on the trapeze to balance the boat;
d)balancing the boat in gybes and tacks by walking across the moving platform which is the deck of the boat; and
e)lots of observations and verbal communications with the crew.[65]
[65] Affidavit of Mr Emmett Lazich sworn and filed 22 October 2018 at paragraph [12(g)(i)].
He also stated
The rope loads on a 49er are significant and there are lots of demands on the helm’s body and core strength particularly when going downwind when there are three sails with only two crew to control them. For the helm to pull the jib (the front sail) on in a 49er going upwind in strong winds requires a full wrap around one hand and a full straight arm pull using leg muscles as it is not possible to do a single arm curl.[66]
[66] Affidavit of Mr Emmett Lazich sworn and filed 22 October 2018 at paragraph [12(g)(iv)].
He goes on to say that, in his opinion:
…strength, stamina and physique of competitors sailing in a high performance two-handed skiff such as the 49er is not just relevant but critical to the prospect of individual crews competing successfully at an elite level.
This is particularly so in a class of skiff such as the 49er which is a twin trapeze boat, where both the helm and crew are clipped on to a trapeze and effectively standing at an angle out from the side of the boat so as to keep it upright at all times. Consequently unlike some other boats such as the single handed Finn or Laser or the helm on a 470 class boat, both the helm and crew on a 49er effectively never sits down and sail the boat continuously standing up.[67]
[67] Affidavit of Mr Emmett Lazich sworn and filed 22 October 2018 at paragraph [12(c)(i) and (ii)].
Although Ms Bayliss’ evidence was not admitted for the reasons set out above, Mr Lazich acknowledged that she was an ‘extremely capable and accomplished sailor’ and ‘was amazing in what she did in the 49er.’[68] However, Mr Lazich made the point that Ms Bayliss did not compete at in a 49er World Championship after the changes made to the 49er in 2009.[69]
[68] Affidavit of Mr Emmett Lazich sworn and filed 22 October 2018 at paragraph [13(a)(i) and (ii)].
[69] Affidavit of Mr Emmett Lazich sworn and filed 22 October 2018 at paragraph [13(a)(i)].
Ms Cherry Birch gave evidence that she has been a member of the Board of Yachting Victoria from 2011.
In that capacity, she also gave evidence about the approach taken by World Sailing and the International Olympic Committee to gendered Olympic classes.
Relevantly, she stated that:
Sailing is a sport which encourages mixed competition at almost all levels but World Sailing has made a deliberate decision for the Olympic Classes to endeavour to increase participation by females by designating some female only classes in which females can participate against each other on a more level playing field in terms of strength, stamina and physique in boats specifically designed for this purpose. The 49FX and laser Radial Classes were, for the 2016 Olympics, examples of such classes.[70]
[70] Affidavit of Cherry Birch sworn 12 and filed 22 October 2018 at paragraph [6].
Ms Birch also gave evidence about the initiatives which Yachting Victoria have put in place to encourage women and girls in the sport.[71]
Sex Discrimination Act 1984 (Cth)
[71] Affidavit of Cherry Birch sworn 12 and filed 22 October 2018 at paragraphs [8], [9], [10] and [11].
Section 22 of the Sex Discrimination Act 1984 (Cth) (“SD Act”) relevantly states:
(1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:
(a)by refusing to provide the other person with those goods or services or to make the facilities available to the other person;
(b)in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2)…
The applicant’s case is premised on a claim of unlawful discrimination in the provision of services by the respondent. Services is defined in section 4 to relevantly include ‘services relating to entertainment, recreation or refreshment.’
Section 5 of the SD Act then goes on to define what constitutes sex discrimination. It relevantly provides:
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:
(a)the sex of the aggrieved person;
(b)a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.
(2) …
(3) …
Division 4 of the SD Act also contains a number of exemptions. Relevantly, section 42 relates to sport and relevantly provides:
(1)Nothing Division 1 or 2 renders it unlawful to discriminate on the ground of sex… by excluding persons from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.
Finally, section 105 of the SD Act also provides:
A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1 or 2 of Part II shall, for the purposes of this Act, be taken also to have done the act.
Applicant’s submissions
It was argued on behalf of the applicant that the alleged discriminatory conduct consisted of:
a)the publication of the NOR, which was by its very terms discriminatory;
b)the comments made by Mr Papantonio to the applicant and Mr Coady to the effect that the applicant was either disqualified or ineligible to race on the second day of the regatta;
c)the deletion of the applicant’s results prior to any protest hearing;
d)the findings made at the protest hearing and the publication of the decision identifying the applicant by her personalised sail number; and
e)proceeding with a gross misconduct hearing against Mr Coady in circumstances where the alleged gross misconduct was the fact that he sailed with a woman.
It was submitted on behalf the applicant that it is no response to a claim of unlawful discrimination to say that the respondent was simply applying the Olympic gender rules, if those rules themselves were unlawful.
It was further submitted that by declaring the boat ineligible, the jury acted without power, as it was only the organising committee which had the power to determine questions of eligibility and, in doing so, it acted in an unlawfully discriminatory manner. Moreover, it was aided and assisted in so acting by the respondent.
Finally, the applicant argued that section 42 does not apply in this case. The applicant relied upon the decision in Robertson v Australian Ice Hockey Federation [1998] VADT 112 (“Robertson”) to argue that the issue in this case is the strength and stamina of the helm and whilst strength and stamina may be a function of the role of the crew, it is not a requirement of the role of the helm. Therefore, section 42 does not provide a defence to the alleged unlawful discrimination.
Moreover, the applicant argued that this position is, to an extent, supported by Mr Lazich’s concession that it is the crew who does the ‘heavy lifting’ on a 49er. The applicant pointed to the fact that in at least one race, the applicant and her father finished ahead of another all male crew.
Respondent’s submissions
The respondent’s submissions are essentially summarised as follows:
a)The respondent does not concede that it provides a “service”; however, if the services are said to be “recreational services”, then at that level of generality, there is no basis upon which a finding could be made that the applicant was treated less favourably than a hypothetical male would have been in the provision of those services, because the regatta was conducted in such a way as to provide opportunities for both genders to participate.
b)On the evidence, when one looks at the regatta in its broadest sense, the applicant was not treated less favourably by either being denied those services or in the manner in which those services were provided to her on the basis of her sex.
c)The applicant was aware of and consented to the rules of the regatta which included that the Olympic gender rules applied. Moreover, it was submitted that the gender rules themselves are not unlawfully discriminatory. The applicant and her father registered in a race in breach of those rules, raced in breach of those rules, a protest was lodged and the results for those races were altered.
d)Subsequently, and quite separately, it was said that the applicant’s father engaged in conduct which gave rise to a misconduct charge being brought against him. The making of that charge and the consequences which included the disqualification of the boat from the regatta was based solely on the father’s conduct, not on the applicant’s gender.
e)The respondent argued that the mere publication of the NOR does not amount to unlawful discrimination. It provided classes for both genders for the reasons put forward by Mr Lazich. Moreover, it was submitted on behalf of the respondent that the NOR did not discriminate against the applicant; rather, it applied to everyone equally.
f)It was therefore argued that there was no evidence of less favourable treatment in this case on the basis of gender, given that had a man sought to register in a female class, he too would have been subject to the same treatment. It was submitted that in those circumstances, a protest would have been lodged and he would have been declared disqualified in any race in which he had competed in breach of the rules.
g)In this case, the applicant’s father’s refusal to abide by a direction not to participate in the race was considered to be gross misconduct. It is submitted that whilst this had unfortunate consequences for the applicant, it was in no way based on her sex.
h)To the extent that it was alleged that the respondent facilitated unlawful discrimination by the race committee or the international jury, it was submitted that none of the conduct engaged in by either of those bodies amounted to unlawful discrimination against the applicant on the basis of her gender.
i)In any event, section 42 would provide a complete answer to any unlawful discrimination claim in this matter and still applies even if, as it was conceded, other attributes such as co-ordination, tactical nous and the like are also required at the elite level of sailing. The respondent argued that for the purposes of section 42, the ‘competitive activity’ is elite sailing, or more particularly, Olympic level sailing. The respondent sought to distinguish Robertson on the basis that the role of the ‘helm’ in Olympic class racing is not akin to the role of a goal keeper in ice hockey.
j)The respondent conceded that section 42 would not apply if, for example, the competitive activity engaged in was junior competition. It was submitted that the elite nature of the sporting activity in this case is what attracts the protection afforded by section 42.
Consideration
In considering the applicant’s claim, the following issues arise for determination:
a)What is the ‘service’ provided by the respondent?
b)In the provision of any such services, did the respondent discriminate against the applicant by:
i)refusing to provide those services to the applicant; or
ii)otherwise provide those services in a discriminatory manner?
c)If the answer to (b) is yes, does the exemption in section 42(1) apply such that the discriminatory conduct is not unlawful?
I will address each of these issues in turn.
Services
It is common ground that the respondent was the organising authority for the 2014 regatta.
The applicant referred the court to the High Court decision of IW v City of Perth [1997] HCA 30; 191 CLR 1 (“IW v City of Perth”). Although the court in that case was considering state legislation, some of its comments in relation to determining what constitutes a ‘service’ for the purpose of anti-discrimination legislation is apposite.
The definition of ‘services’ in section 4 is sufficiently broad to include services relating to recreation. It is asserted that the respondent provided such services in its capacity as the organising authority of the Sail Melbourne event. Section 15AA of the Acts Interpretation Act 1901 (Cth) relevantly provides:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
The objects of the SD Act include “to eliminate so far as is possible, discrimination against persons on the ground of sex … in the areas of … the provision of goods, facilities and services …”[72] As noted by Brennan CJ and McHugh J in IW v City of Perth, whilst regard must be had to those objects in interpreting anti-discrimination legislation:
…many anti-discrimination statutes (define) discrimination and the activities which cannot be the subject of discrimination in a rigid and often highly complex and artificial manner. As a result, conduct that would be regarded as discriminatory in its ordinary meaning may fall outside the Act. The object referred to in s 3(a) of the Act must, therefore, be understood by reference to the definitions of discrimination which occur in various parts of the Act.
… Although a provision of (anti-discrimination legislation) must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term ‘service’, read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a ‘service’ for the purpose of the Act.[73]
[72] Sex Discrimination Act 1984 (Cth), s. 3.
[73] IW v City of Perth [1997] HCA 30; 191 CLR 1.
The Macquarie Dictionary defines service to include:
…
2. the supplying or supplier of any articles, commodities, activities, etc. required or demanded
…
I find that the respondent provided services insofar as they facilitated participation in the 2014 regatta by competitors and spectators in its entirety, in both the Olympic class events and the invited class events. This is a service relating to recreation and therefore falls within the meaning of section 4 of the SD Act.
Therefore, the question of whether any unlawful discrimination has occurred must be assessed in the context of this service.
Was there any discrimination in the provision of those services?
Whilst the applicant was not permitted to participate in one of the events which formed part of the 2014 regatta, she was not excluded from the regatta in its entirety.
I accept the evidence of Mr Turnbull that when it came to his attention that the applicant was sailing in the men’s only class, he tried to find alternatives for her to continue to participate in the 2014 regatta. In particular, I accept his evidence that he raised the possibility of the applicant competing in the female Olympic class (FX) or in an open invited class. I am therefore satisfied that the respondent, through Mr Turnbull, did not refuse the service as defined, to the applicant.
As to whether the respondent provided the services to the applicant in a discriminatory way, consideration needs to be given to the definition of ‘discrimination’ in section 5.
As stated above, to establish that there has been unlawful discrimination under section 5 of the SD Act, the applicant must establish:
a)that there has been less favourable treatment than a person of a different sex in the same or substantially the same circumstances; and
b)there was a causal connection between the less favourable treatment and the applicant’s sex.
In this case, it is clear that the applicant was not permitted to compete in the men’s 49er Olympic class event once her registration came to the attention of the organisers.
Even if the service provided by the respondent were defined to be the Olympic class events, the applicant was not refused the right to participate in Olympic class events entirely as she was eligible to compete in the women’s Olympic class event.
In any event, even if it could be said that the respondent’s exclusion of the applicant from competing in the male Olympic class event was the act complained of, this would not amount to unlawful discrimination unless it could be shown that this amounted to less favourable treatment than a man would have received in the same or similar circumstances.
The comparator, therefore, would be a man who had, notwithstanding the clear rules of race specifying the Olympic gender requirements, sought to enter and compete in the female Olympic class event, namely the 49FX. In those circumstances, I am satisfied that a protest would have been lodged and determined in the ordinary course.
I am therefore satisfied that there has been no less favourable treatment in the same or similar circumstances.
Moreover, it is common ground that the applicant’s results for the races in which she did compete on 9 December 2014 were ultimately recorded as ‘DSQ’. Whilst not in dispute, this conduct would only constitute unlawful discrimination if it could be shown that it amounted to less favourable treatment than a man would have received in the same or not materially different circumstances. The applicant has not established, on the balance of probabilities, that this is the case.
Exemption
If my analysis above is incorrect and it could be said that there has been some less favourable treatment of the applicant on the basis of her gender in the decision to exclude her from competing in the male Olympic class event, the question arises as to whether the exemption under section 42 operates such that any discriminatory behaviour is not unlawful.
Section 42 of the SD Act provides that it is not unlawful discrimination to exclude persons from “participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.”
To the extent that the applicant was excluded from participating in any sporting activity based on her gender, it was an exclusion from participating in the male Olympic class event. Therefore, for the purposes of section 42, the sporting activity was elite Olympic level sailing.
Mr Lazich has given evidence, which is discussed above and I accept, that in sailing generally, strength, stamina and physique is relevant, but more directly and significantly so in elite Olympic sailing.
Section 42 has been considered by Wilcox J of the Federal Court in Ferneley v The Boxing Authority of New South Wales [2001] FCA 1740; 115 FCR 306. In that case, his Honour set out the history of the introduction of what is now section 42 and adopted the approach taken by the Victorian Anti-Discrimination Tribunal in Robertson as equally applicable to section 42 of the SD Act.
In Robertson, the President of the Anti-Discrimination Tribunal (“the Tribunal”), as it then was, considered the meaning of section 66(1) of the Equal Opportunity Act2010 (Vic) (“the EO Act”) which is in the same terms as section 42 of the SD Act.
The Tribunal had to consider the meaning of section 66 of the EO Act in the context of a strike out application, and relevantly stated:
Section 66(1) permits a person to exclude people of one sex from a competitive sporting activity where “the strength, stamina or physique of competitors is relevant”. “Strength” and “stamina” have, in my view, their ordinary meanings, and I need say no more about them. …
“Physique”… is a broad term and includes physical powers, height weight and overall body shape, build structure or appearance.[74]
[74] Robertson v Australian Ice Hockey Federation [1998] VADT 112 at [9]-[10].
The Tribunal then went on to consider what relevance strength, stamina or physique must have to the sporting activity in order to attract the protection of the exemption for otherwise discriminatory conduct. The Tribunal relevantly noted:
Does it mean relevant to the sporting activity itself, or relevant to the outcome of the sporting activity? One interpretation of the sub-section would be that it permits women to be excluded from a sporting activity which requires strength stamina or particular physical powers from those who undertake it. On this basis, it would permit the exclusion of women from sports such as horse racing, because that is a sport which requires (at the very least) some strength and stamina from the riders. However, to accept this interpretation would be to ignore the rest of the sub-section. The sub-section must be read as a whole. It permits the exclusion of one sex from a sporting activity where strength, stamina or physique is relevant. In my view, this means that the sub-section only permits the exclusion of one sex from a competitive sporting activity where the relative strength, stamina or physique of each sex is relevant. In other words, the sub-section is directed to competitive sporting activities where, if both sexes competed against each other, the competition would be uneven because of the disparity between the strength, stamina or physique of men and women competitors. This interpretation is consistent with the objects of the Act …Exceptions to the prohibitions of the Act, like other statutory exceptions, should be construed strictly and in the light of the objectives of the Act. It would not be consistent with the objectives of the Act to construe one of these exception provisions to authorise discrimination against one sex or the other in competitive sport, where there is no disparity between the requisite strength, stamina or physique of men and women that would prevent them competing together in the sporting activity.[75]
[75] Robertson v Australian Ice Hockey Federation [1998] VADT 112 at [10].
Although this decision relates to another legislative scheme and is not binding on this court, given the similarity in the provisions under consideration and having regard to subsequent decisions, including the decision of Ferneley v The Boxing Authority of New South Wales [2001] FCA 1740; 115 FCR 306 in which his Honour agreed with the approach taken to the interpretation of section 66(1) of the EO Act and his view that this approach equally applied to section 42 of the SD Act, I too, respectfully agree that section 42 ought to be similarly interpreted. Therefore, the exception in section 42 permits otherwise discriminatory conduct in sporting activities on the grounds of sex in circumstances where the requisite strength, stamina or physique required would lead to an uneven competition between men and women competing against each other.
The question for determination that then follows, is whether there is a disparity between the strength, stamina and physique of men and women that would prevent them from competing together in the sporting activity. In determining this issue, it is essential to determine what sporting activity is the subject of the inquiry.
The applicant’s case is that the role of the helm is different to the role of the crew on a 49er and therefore, the question of whether strength, stamina and physique is relevant within the meaning discussed above for the purposes of section 42, needs to be considered by reference to the role of the helm specifically and not by reference to the roles of both the helm and the crew.
In support of this proposition, the applicant relied upon Robertson in which the Tribunal concluded that whilst strength, stamina and physique were relevant to the playing of contact ice hockey, it was not satisfied that the same applied to the role of goal keeper which was the role which the applicant in that case played. The Tribunal accepted that the role of goal keeper was a non-contact position and therefore different to the rest of the positions of an ice-hockey team.
It is important to recall that in Robertson, the issues for determination arose in the context of a strike out application. As such, the onus was on the respondent seeking to have the complaint struck out at an early stage in the proceedings, to establish that the exception “so completely answers the complainant’s claim that the claim is manifestly unsustainable in law or in fact.”[76]
[76] Robertson v Australian Ice Hockey Federation [1998] VADT 112 at [8].
In any event, the evidence before the Tribunal was that, unlike other positions on the ice hockey field which were ‘contact’ positions where ‘checking’ is permitted, the position of a goal keeper is a non-contact one. The Tribunal referred to the fact that if another player entered the area on the field in which the goal keeper operates and makes body contact with the goal keeper, they incur a penalty.
I do not accept the applicant’s submission that a similar distinction arises in this case. Unlike a goal keeper, the helm does not operate in a separate and distinct part of the boat. Whilst it is the case that the helm and the crew each have particular functions on the 49er (and indeed on the 49FX), having regard to Mr Lazich’s evidence, I find that the helm and the crew operate in tandem to sail the skiff and respond to the conditions on the day. They are more akin to the various players on the hockey field rather than the goal keeper. Robertson is of limited assistance in the determination of this matter. Whilst the crew may require greater strength than the helm, that does not lead to the conclusion that the strength, stamina and physique of the helm is not relevant in the sense discussed in Robertson.
On the basis of the evidence before me, I accept that strength, stamina and physique are relevant to elite competition sailing, including the role of the helm on a 49er and a 49FX. Consequently, section 42 would render any otherwise unlawful discrimination resulting from the applicant’s exclusion from the men’s Olympic class as lawful. As a result of the application of section 42, there is nothing inherently unlawful about the gender rules in the NOR. Consequently, it was not unlawful for the respondent or others associated with the 2014 regatta to raise this with the applicant, to initiate the protest hearing and then to reach the conclusions it did arising from the applicant’s failure to comply with the gender rules.
Conclusion
For each of these reasons, I find that the applicant has not established that the respondent engaged in unlawful discrimination against her as alleged. Nor has the applicant established that the respondent aided or assisted any other person to engage in such action.
Finally, for the reasons set out above, I find that the misconduct proceedings and the outcome of those proceedings were based solely on Mr Coady’s conduct and were in no way related to the applicant, or her gender. That conduct did not constitute any less favourable treatment of the applicant and therefore does not amount to unlawful discrimination.
For these reasons, I order that the applicant’s application be dismissed.
I certify that the preceding one hundred and ninety (190) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 2 August 2019
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