Colquhoun v South Australian Trailer Boat Club Inc (No 2) - [2008] SAEOT 2

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
COLQUHOUN v SOUTH AUSTRALIAN TRAILER BOAT CLUB INC (No 2)
[2008] SAEOT 2
Judgment of Her Honour Judge Cole, Member Mr D Shetliffe and Member Ms B Worley
28 February 2008
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS
Orders sought by complainant following Tribunal's finding that the respondent breached the Equal Opportunity Act 1984 - power of the Tribunal to make certain orders considered - award of $10,000 in damages to the complainant and order for the publication of an apology by the respondent to the complainant.
Equal Opportunity Act 1984 s 93(2), s 96; Associations Incorporation Act 1985, referred to.
Hall & Ors v A & A Shieban Pty Ltd (1989) 20 FCR 217; Forest v Queensland Health [2007] FCA 1236; Cross v Hughes & Anor [2006] FMCA 976; Abdulla v Berkeley on Hindley Street P/L [2005] SAEOT 2; Abdulrahman v Toll Pty Ltd trading as Toll Express [2006] NSWADT 221; Molesworth v Campbell and Patcono Pty Ltd [2004] QADT 30; Bellamy v McTavish & Pine Rivers Shire Council [2003] QADT 15, considered.

COLQUHOUN v SOUTH AUSTRALIAN TRAILER BOAT CLUB INC (No 2)
[2008] SAEOT 2

On 7 December 2007, our judgment in this matter regarding the question of whether the SA Trailer Boat Club Inc (“the club”) has breached the Equal Opportunity Act 1984 (“the Act”) was published. On 31 January 2008, we heard submissions from the parties as to what orders should follow from that judgment.
The complainant, Ms Colquhoun, seeks orders which she believes would facilitate her aspiration to become a member of the club. She also seeks compensation and an apology. The club argues that no orders are warranted.
Breach
The club asserted that the only breach of the Act in respect of which orders could be made was the refusal to admit Ms Colquhoun to membership which was communicated to her in August of 2006. Mr Manuel, counsel for the club, argued that no course of conduct had been established, and that, because of s 93(2) of the Act, the Tribunal is confined to the effects of the August 2006 incident in relation to any orders we may make.
The Act, in s 93(2), states:-
(2) A complaint must be lodged—
(a)when the alleged contravention is constituted of a series of acts—within six months of the last of those acts;
(b)in any other case—within six months of the date on which the contravention is alleged to have been committed.
Mr Manual’s submission misunderstands our determination in respect of the question of whether the club breached the Act. We have determined that the club refused Ms Colquhoun admission to membership of the club in July 1979 and continued in that refusal thereafter as a continuous course of conduct. We consider the club’s contravention of the Act to have been continuous from 1 March 1987 when s 35(1)(a) of the Act came into operation. We will discuss the end point of that contravention below. In the context of s 93(2), we consider that the club’s dealings with Ms Colquhoun constituted “a series of acts”.
Change to the Club’s Rules
In the course of the hearing before us on 31 January 2008, Mr Manual tendered an affidavit of Erin Kathleen Rice, which contained evidence of the passing of a resolution at a special general meeting of the club on 2 December 2006. That resolution was to change the constitution of the club to insert clause 5(a):-
The Club is a male-only club. The Club shall not accept female members.
Mr Evans noted that the Associations Incorporation Act 1985 (which applies to the club) confers upon the Supreme Court powers with respect to the rules of Associations. Mr Evans accepted that, on the face of the matter, an effective amendment had been made to the club’s rules on 2 December 2006, and that the Tribunal does not have power to go behind that amendment. Consequently, we must treat the club as having taken itself outside of the operation of s 35(1) by ceasing to be “an association that has both male and female members” upon the passing of the resolution of 2 December 2006. That is therefore the date upon which, for all practical purposes, the club ceased to be in breach of the Act in relation to Ms Colquhoun’s application for membership.
Orders sought – power of the Tribunal
The Act provides in s 96:-
96    Power of Tribunal to make certain orders
(1)    The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make any one or more of the following orders:
(a)an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to any person for loss or damage arising from the contravention;
(b)an order requiring the respondent to refrain from any further contravention of the Act;
(c)an order requiring the respondent or any other party to the proceedings to perform specified acts with a view to redressing loss or damage arising from the contravention.
(2)    The Tribunal may, at any stage of proceedings under this Part—
(a)make an interim order to prevent prejudice to any person affected by the proceedings;
(b)make an order dismissing the proceedings.
(3)    The damage for which a person may be compensated under subsection (1) includes injury to his or her feelings.
(4)    A person who contravenes or fails to comply with an order under this section is guilty of an offence.
Penalty: Division 7 fine.
(5)    Any amount that a person is ordered to pay under this section may be recovered from the person as a debt in a court of competent jurisdiction.
Orders sought – Membership
Ms Colquhoun sought orders in the following terms:-
1. The respondent forthwith take such steps as are necessary to amend its Constitution and Rules by:
1.1deleting clause 5(a) “the Club is a male-only Club. The Club shall not accept female members”;
1.2amending clause 5(b) so it is now clause 5 and by deleting the words “Subject to clause 5(a) herein,” where they appear therein.
2. The respondent:
2.1provide to the complainant an Application Form;
2.2cause such Application Form to be signed by a proposer and a seconder who are financial members of the Respondent.
3. On the:
3.1Constitution and Rules being amended in accordance with Order 1 herein; and
3.2completion and return of the Application Form by the complainant; and
3.3the payment of the entrance fee by the complainant,
the complainant be accepted as a member of the respondent.
The steps referred to in order no. 1 would involve the calling of a meeting to propose a special resolution. If the membership did not pass that resolution, the club would have to make an application to the Supreme Court pursuant to s 24A of the Associations Incorporation Act 1985 in order to bring about the alteration to its rules.
It is clear that Ms Colquhoun’s principal objective is to become a member of the club. The resolution of 2 December 2006 created an impediment to Ms Colquhoun becoming a member which cannot be surmounted by this Tribunal. We do not consider that the powers conferred upon us by s 96 of the Equal Opportunity Act extend to making orders of the kind quoted above. They are not final orders in the sense that the outcome of undertaking the steps required by the orders would be uncertain.
Orders sought - compensation
Pursuant to s 96(1)(a) of the Equal Opportunity Act, quoted above, the Tribunal may order the club to pay compensation to Ms Colquhoun for loss or damage arising from its contravention. That damage may include injury to Ms Colquhoun’s feelings. The appropriate approach to an award of damages in respect of a breach of anti-discrimination legislation was considered by the Full Federal Court in Hall & Ors v A & A Shieban Pty Ltd (1989) 20 FCR 217. Lockhard J said at p 239:
As anti-discrimination, including sex discrimination, legislation and case law with respect to it is still at an early stage of development in Australia, it is difficult and would be unwise to prescribe an inflexible measure of damage in cases of this kind and, in particular, to do so exclusively by reference to common law tests in branches of the law that are not the same, though analogous in varying degrees, with anti-discrimination law. Although in my view it cannot be stated that in all claims for loss or damage under the Act the measure of damages is the same as the general principles respecting measure of damages in tort, it is the closest analogy that I can find and one that would in most foreseeable cases be a sensible and sound test. I would not, however, shut the door to some case arising which calls for a different approach.
Generally speaking, the correct way to approach the assessment of damages in cases under s 81 of the Act is to compare the position in which the complainant might have been expected to be if the discriminatory conduct had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent. The effect of s 81(4) is that the damage which is compensable under s 81(1)(b) of the Act includes injury to the complainant’s feelings or humiliation suffered by him or her.
It is clear that the purpose of damages awarded under the Act must be to compensate the claimant and not to punish the respondent.
We have set out the facts of this matter in our judgment of 7 December 2007 and we will not repeat them in detail here. Suffice it to say that Ms Colquhoun applied for membership to the Club prior to June 1979. Her application was treated by the Club as having been refused at a general meeting on 21 June 1979, and Ms Colquhoun was informed that her application had not been accepted by a letter dated 24 July 1979 which said, among other things:
The members have also directed that, in the event of a change in circumstances at some time in the future, you be then invited to apply to fill the next vacancy then occurring in the Club.
Ms Colquhoun waited for that invitation until August 2006, when she made a further, formal approach to the club, which was rejected. Prior to August 2006, Ms Colquhoun spoke to Mr Johansen, a member and sometime office-holder of the club from time to time about her application.
It is clear from Ms Colquhoun’s evidence that she has very fond memories of the activities she enjoyed at the club with her father, a club member and sometime office-holder. Upon her father’s death in 1991, Ms Colquhoun ceased to be able to use the club and its facilities, including the boat ramp. Ms Colquhoun has a son who is now 16 years old who enjoys boating and fishing. Ms Colquhoun would have liked to have taken her son to the club and used its facilities and participated in its social activities with him in the way that her father had with her. She was denied those opportunities solely because of her gender. The boys she knew at the club as a child were not denied those opportunities.
We accept that Ms Colquhoun has experienced feelings of sadness, grief and loss as a result of the club’s treatment of her. She believes that membership of the club would have enhanced her enjoyment of life to some degree and she regrets the loss of that opportunity. It seemed to us that she was somewhat restrained in expressing those feelings in evidence because she still clings to the hope that she will be granted admission to membership and she does not wish to offend members of the club. The club offered no explanation as to why it is so intent upon excluding women from membership. It has gone to the lengths of changing its rules to fulfil the desire of a group of its members that women be excluded.
No evidence was adduced on behalf of the club to explain the position it has taken. The club did not provide any evidence of having been set up as a male only club, or of any relevant limitation on its resources. No reason whatsoever, practical, historical or otherwise, was advanced on behalf of the club. Ms Colquhoun has experienced the actions of the club as a rejection of her because of her gender. Ms Colquhoun said, in evidence, of her feelings about not being permitted to become a member of the club:-
It’s made me feel really sad because it was a place that I was brought up at. It was family orientated, and in reality I really didn’t think I would be condemned from the club because I’m female. The club’s got so many memories for me and they are old good memories. It’s a safe place where I can launch my boat and now I can lock my boat up in security car parking and know it’s going to be there when I come out, my trailer when I come back from fishing. From memories it was a great place for pulling into the boat ramp and have a chat about the fish that got away and have a laugh. I really can’t understand the problem. Because I’m female. It hurts.
It is clear to us from Ms Colquhoun’s evidence that she has experienced an injury to her feelings within the meaning of s 96(3) because of the actions of the club. She has experienced hurt and disappointment over a number of years because of the actions of the Club, and there is now little foreseeable prospect that she will ever attain her objective of becoming a member. In all of the circumstances, we believe an award of $10,000 in damages is appropriate. In fixing that amount, we have considered the range of damages awarded in Equal Opportunity cases (eg Forest v Queensland Health [2007] FCA 1236, Cross v Hughes & Anor [2006] FMCA 976, Abdulla v Berkeley on Hindley Street P/L [2005] SAEOT 2, Abdulrahman v Toll Pty Ltd trading as Toll Express [2006] NSWADT 221, Molesworth v Campbell and Patcono Pty Ltd [2004] QADT 30, Bellamy v McTavish & Pine Rivers Shire Council [2003] QADT 15).
Orders sought - Apology
There is abundant authority to the effect that a direct, court ordered apology from a respondent to a complainant in circumstances such as these is meaningless. However, wider publication of an apology may go some way to assuaging the complainant’s hurt feelings. We will therefore make the order sought on behalf of Ms Colquhoun that an apology be published in the press.
There will be orders in the following terms:-
1.That the respondent is to pay to the complainant compensation in the sum of $10,000.
2.That the respondent must publish an apology to the complainant for the respondent’s contravention of the Act in the State-wide edition of the Advertiser and in the Portside Messenger Newspapers. The wording and placement of the apology is to be settled with the Commissioner for Equal Opportunity prior to publication. The apology must be published within sixty days of the date of these orders.