DALEY & CLUB ACADEMY PTY LTD (Discrimination) - [2011] ACAT 85

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

DALEY & CLUB ACADEMY PTY LTD (Discrimination) [2011] ACAT 85

REDACTED FOR PUBLICATION*
DT 9 of 2011
Catchwords: DISCRIMINATION – discrimination on the ground of race – access to premises – reason for excluding the Applicant from the club – weight of evidence
List of legislation: ACT Civil and Administrative Tribunal Act 2008, s. 32
Discrimination Act 1991, ss.8 and 20
Evidence Act 1991 (Cwlth), s.131
Human Rights Commission Act 2005, ss.53A, 53E and 66

Tribunal: Mr A. Anforth, Senior Member

Date of Orders: 25 August 2011
Date of Reasons for Decision: 14 December 2011

*These reasons have been redacted by removing addresses and other personal details of witnesses

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL )
DT 9 of 2011

BETWEEN:
JAY DALEY
Applicant

AND:

CLUB ACADEMY

PTY LTD
Respondent

TRIBUNAL: Mr A. Anforth, Senior Member

DATE: 25 August 2011

ORDER
1.The Application by the Applicant is dismissed.

Sgd for Mr A. Anforth
Senior Member

REASONS FOR DECISION

Background

The matter concerns a complaint by the Applicant that he has been unlawfully discriminated against on the basis of his race, namely his aboriginality (sections 8 and 20 DiscriminationAct 1991 (the Act)).

The Applicant asserts that between 11-12pm on 24 July 2010, he was denied entry to the Club Academy night club (the Club) in Canberra because of his race. He claims that he was in a line outside the night club with his brother (Mitchell Daley) and two cousins (Aaron Daley and Howard Hall) when a bouncer informed the brother that the Applicant would be denied entry because ‘the guy upstairs did not like the look of [him] and did not want trouble…’. The Applicant asserts that the reference to his appearance was in fact a disguised reference to his aboriginality. The brother and cousins were not denied entry although they chose not to enter the Club after this event.

The brother and cousins are also men of aboriginal descent.

The Applicant lodged a complaint with the ACT Human Rights Commission which did not result in any conciliated outcome. The matter was referred to the Tribunal.

The Respondent sought to have the application before the Tribunal dismissed as being frivolous or vexatious under section 32 of the ACT Civil and Administrative Tribunal Act 2008. This application was based on the asserted lack of evidence that the Respondent’s actions were motivated by the Applicant’s racial characteristics. Rather it was asserted that the Applicant was denied entry on the night because he did not meet the dress code for the Club.

The matter proceeded by way of substantive hearing. The Tribunal found a lack of evidence in support of both:
(a)the Applicant’s contention that his exclusion from the club was due to his race; and
(b)the Respondent’s contention that the exclusion was because of standard of the Applicant’s dress.

Although the evidence suggested at least one, and possibly two other reasons for the Applicant’s exclusion from the Club, these grounds were not pleaded and ultimately were not demonstrated on the evidence.
The history of the application:

On 27 July 2010, the Applicant lodged a complaint with the Commissioner through his representatives at the Aboriginal Justice Centre, in Canberra. He asserted the act of discrimination set out in the Background above.

One version of the written complaint made to the Commissioner by the Applicant’s father asserted that all four men had been denied access. It was later clarified that only the Applicant had been denied access. The other three men were permitted access albeit they decided not to accept the invitation given what had transpired with the Applicant.

On 15 October 2010, the Commissioner convened a conciliation conference between the parties which did not produce any outcome.

On 10 February 2011, the Commissioner wrote to the Applicant via the Aboriginal Justice Centre and advised of her intention to close the file under section 53A of the Human Rights Commission Act 2005 (HRC Act). The Commissioner expressed the view that the Applicant’s race may have been a factor in the decision to exclude him from the Club. The Applicant was advised of his right to have the matter referred to the Tribunal.

On 27 February 2011 the Applicant advised the Commissioner in writing of his desire that the matter be referred to the Tribunal.

The Commissioner referred the matter to the Tribunal together with all the documents from the Commissioner that related to the complaint. The Commissioner provided an index of the relevant documents (exhibit A1).

The matter was listed for directions before the Tribunal on 6 April 2011.
Mr Eteuati, solicitor, appeared for the Applicant and Ms Mylechrane, solicitor, appeared for the Respondent

Presidential Member Professor Spender made the following procedural orders:

The Tribunal Orders that:
1.The applicant is required by 13 April 2011 to give to the respondent and the Tribunal a statement of issues, including the remedies sought by the applicant in this application.
2. The applicant is required by 20 April 2011 to give to the respondent and the Tribunal a copy of the documents filed with the ACT Human Rights Commission.
3. The applicant is required by 20 May 2011 to give to the respondent and the Tribunal:
(a)a statement of facts and contentions;
(b)the statement of any witness on whose evidence the applicant relies; and
(c)any other material intended to be relied upon by the applicant at the hearing.

4. The respondent is required by 17 June 2011 to give to the applicant and the Tribunal;
(a)a statement of facts and contentions;
(b)the statement of any witness on whose evidence the applicant relies; and
(c)any other material intended to be relied upon by the applicant at the hearing.

5.The applicant is required by 24 June 2011 to give to the respondent and the Tribunal any material in reply to the material given to him.
6. The matter is to be listed for further directions at 9:30am on 1 July 2011.
7. If a party intends to rely on authorities, the party is required to prepare a list of authorities and a double sided paper copy of each authority, to be placed in a binder if the authorities exceed 10 in number. The list and copies of the authorities are to be provided by that party to all other parties and to the Tribunal by 1 July 2011. One copy is to be provided to each party and 2 copies are to be provided to the Tribunal.
8. The matter is to be listed for hearing commencing at 10am on 21 July 2011 and will be 2 days' duration.
It is to be noted that the parties will consider whether the application should be referred to mediation at the directions hearing scheduled for 1 July 2011.

On 23 May 2011 there was return of a subpoena issued by the Applicant upon the Respondent. The subpoena sought documents from the Respondent relating to dress code, policies about refusing entry, the identity of bouncers on the night in question and photographs of patrons in the period of 24-25 July 2010. The Respondent returned a Security Register and a document entitled ‘Dress Code’.

The Dress Code read:

DRESS CODE

Academy Nightclub enforces a strict dress code at all times. Please observe the following rules:
No Thongs.
No Shorts for Men.
No Sleeveless Shirts or Singlets.
No Headwear.
No Construction Wear.
No Cargo Pants or Workwear or Anything that Resembles Workwear.
No Hats, Beanies or Noodles.
No "Hi-Vis" Clothing.
No Camouflage.
No Joggers or Training Shoes.
No Steel Capped Shoes or Boots.
No Muddy, Dirty or Damaged Clothing.
No Sportswear.
No Colours (gang, team, group or otherwise).
No Sports Jackets, Bomber Jackets or Ski Jackets.
All Fancy Dress must be Tasteful at the Discretion of Management.
Men must wear a shirt or t-shirt and full length pants at ALL TIMES.
Men and Women Must Wear Soled Footwear at ALL TIMES

MANAGEMENT RESERVES THE RIGHT TO REFUSE ENTRY TO ANYONE.

The dates for compliance were subsequently varied by the parties on several occasions.

On 6 June 2011, the Applicant filed his Statement of Facts and Contentions. The Statement of Facts and Contentions was brief. The only material facts in the Statement read:

·Mr Daley was appropriately dressed in accordance with the Academy nightclub's dress code.
·Mr Daley did not act in any way which would result in him being refused entry

The Applicant’s Contentions read:

6.The Applicant contends that the Respondent engaged in an unlawful act for the purposes of section 53E(1 )(b) of the Human Rights Commission Act 2005.
7.The Applicant contends that that he was treated unfavourably by being refused access to, or use of, the Respondent's nightclub because of his race and/or his perceived disability. The Applicant submits that, in doing so, the Respondent acted unlawfully for the purposes of section 19 of the Discrimination Act 1991 and section 53E of the Human Rights Commission Act 2005.
8.In their letter to the Human Rights Commission dated 7 December 2010, the Respondent stated:
"We are instructed that as part of its process to maintain a
positive and safe environment for all patrons Club Academy
security staff are required to carefully ensure that all patrons
that enter the premises are dressed in a neat and tidy
manner, do not appear to be excessively intoxicated and
are not displaying rowdy or disruptive behaviour [our
emphasis].

...Acompulsory reporting system is in place at Club
Academy where a staff member is required to record any
incident that occurs in the Club Academy incident register.
Details such a names and details of persons involved in any
incident must be recorded, as well as the staff member's
description of the incident. We are instructed that all
incidents must be recorded irrespective of the seriousness of
the incident.

Mr Condi on behalf of our client has spoken to the staff and
security staff who were working on 24 July 2010 and
enquired in relation to the allegations made by the
Complainant. We are instructed that none of the staff or
security staff have any specific recollection of the
Complainant or any recollection of the events as alleged by
the Complainant.
Mr Condi has reviewed the Club Academy incident register
and has instructed us there is no record of any incident in the
incident register on or around 24 July 2010 matching the
allegations made by the Complainant."

9.The Applicant notes that despite the Respondent's assertions as to its policies in relation to staff dealings with patrons and policies regarding patron refusal, the Respondent produced no written policy document in response to the subpoena served on its lawyers on 9 May 2011. The only documents produced were a single page list entitled "DRESS CODE" (attached as Attachment A) and what appears to be a page from the Security Register (attached as Attachment B). The Security Register has a column entitled Incident ID PAGE/REGISTER NO:. The "Club Academy incident register" which the Respondent previously referred to was not produced.
10.In their letter to the Human Rights Commission dated 7 December 2010, the Respondent identifies three grounds upon which entry to Academy nightclub may be refused. These are excessive intoxication, displaying rowdy or disruptive behaviour, and inappropriate dress.
Excessive intoxication
11.Mr Daley does not consume alcohol and had not consumed any alcohol on 24 July 2010 (see his statement attached as Attachment C. See Also the statement of Aaron Daley attached as Attachment D). This is confirmed by the lack of an entry in the Club Academy incident register in which "all incidents must be recorded irrespective of the seriousness of the incident" and that "none of the staff or security staff have any specific recollection of the Complainant or any recollection of the events as alleged by the Complainant.". This fact is also evidenced by the lack of an entry in the Security Register.
Rowdy or disruptive behaviour
12.Mr Daley did not display any rowdy or disruptive behaviour. After he was refused entry he, his brother and two cousins left Academy nightclub (see Attachment C and D). This is confirmed by the lack of an entry in the Club Academy incident register in which "all incidents must be recorded irrespective of the seriousness of the incident" and that "none of the staff or security staff have any specific recollection of the Complainant or any recollection of the events as alleged by the Complainant.". This fact is also evidenced by the lack of an entry in the Security Register.
Inappropriate dress
13.Mr Daley was dressed in accordance with the dress code provided by the respondent. He was wearing "black pants, a collared shirt, brown leather Colorado shoes, a brown Colorado beanie and a black jacket with a hood." (see Attachment C). That Mr Daley was appropriately dressed is confirmed by Aaron Daley (see Attachment D).
14.While Mr Daley was wearing a beanie which is prohibited under the dress code, he removed the beanie before his group reached the front of the queue (see Attachments C and D). To the extent that the Respondent contends there was any problem with Mr Daley's jacket (which is not admitted), this could have been stored in the cloak room facility provided by Academy nightclub (see description of Academy nightclub at Attachment E).
15.The Applicant contends that in any event, it is clear from the photographs from Academy nightclub referred to in the Affidavit of Amanda Louise Graham (attached as Attachment F) that the dress code provided by Academy nightclub is not enforced with respect to non- aboriginal patrons.
16.The photographs are displayed on the Academy nightclub website and its Facebook page. The photographs clearly show that the dress code provided by Academy nightclub is not adhered to, is not enforced and photographs evidencing breaches of the dress code by non-aboriginal patrons are in fact used by Academy nightclub to promote the nightclub.
Racial discrimination
17.The staff member who refused Mr Daley entry into Academy nightclub said words to the effect "we don't like the looks of you and we don't want no trouble for the night" (see Attachment C) and "The boss said he doesn't like the look of him" (see Attachment D).
18.In her decision of 10 February 2011, the ACT Human Rights and Discrimination Commissioner found that these statements "could be either because of his dress or physical appearance or both. I could also be construed that part of the reason that the security guard or "the guy upstairs" did not like the way he looked could be his race." (We note that the Commissioner did not have the benefit of photographs from the Academy nightclub at the time of her decision).
19.Consistent with this finding, the Applicant submits that a reference to looks would usually be a reference to dress or physical appearance. However, as there is uncontested evidence that Mr Daley was dressed appropriately for admission and that the Respondent does not enforce its dress code in relation to non-aboriginal patrons, the Applicant submits that the statement could only be a reference to his physical appearance, which obviously includes his race.
20.The Applicant was not intoxicated, he was not displaying any rowdy or disruptive behaviour, and he was not inappropriately dressed (or if it is found he was, the dress code was applied to him where it is not applied to non-aboriginal patrons). In circumstances where there was absolutely no reason for refusing Mr Daley entry, apart from his appearance, the Applicant submits that the unavoidable conclusion is that Mr Daley was refused entry by reason of his race.
21.Thus, the Applicant submits that the Tribunal should be satisfied that the Respondent engaged in an unlawful act for the purposes of section 53E(1)(b) of the HRC Act in that he was treated unfavourably by being refused access to, or use of, the Respondent's nightclub because of his race and/or his perceived disability for the purposes of section 19 of the Discrimination Act.
Orders sought
22.The Applicant seeks the following orders from the Tribunal pursuant to section 53E(2) of the Human Rights Commission Act 2005.
·That the Respondent not repeat the unlawful act; and
·That the Respondent provide the Applicant with a written letter of apology, apologising to the Applicant for the unlawful act; and
·That, within 2 months of the orders being made, the Respondent provide all of its current staff and employees with training on racial discrimination to be conducted by the ACT Human Rights Commission; and
·That the Respondent pay the amount of $10,000 directly to Reconciliation Australia.

Annexed to the Applicant’s Statement of Facts and Contentions were:
(a)The documents returned from the subpoena;
(b)Affidavit of Louise Graham concerning the downloading of photographs of patrons of the Club in the weeks prior to 24 July from the website of the Respondent together with the photos themselves;
(c)Three statements of the Applicant two of which were short handwritten statements and the third was a formal statement of the Applicant filed in the proceedings;
(d)Two statements of Aaron Daley, a short hand written statement and a formal statement filed in the proceedings;
(e)A statement of Howard Hall; and
(f)A statement of Mitchell Daley

The annexures to the Applicant’s Statement of Facts and Contentions collectively formed exhibit A3.

The two short statements of the Applicant read:

Writing this short note to ask the question why Jay Daley was refused
entry at Academy Nightclub between the hours of 11-12 o’clock Saturday
Night 24/07/10.

I was lining up at the Academy light club with brother and 2 cousins on
the week-end of Saturday 24^th July 2010.
The 4 of us was dressed properly, only thing was that Jay had Beanie
on but was going to remove it to enter club .
When we got to the front of the line I noticed that the Bouncer was
talking to my brother Mitchell.
The Bouncer told my brother that the guy up stairs did not like the look of
me and did not want trouble so stopped us entering the club.
I was very hurt with this answer as I am 5.4 and 56 kg have full time
employment with the ACT Government as Ranger 2 and don't drink.
I copped this sort of racist attitude at a Catholic school in Wellington
NSW and don't need this kind of racism happening in the National
Capital of Australia.
So can somebody please give me the real reason for not letting me and
3 other Aboriginal men in to this very Night club.
Jay Daley
Mitchell Daley
Aaron Daley
Howard Hall.
I was lining up with my brother and 2 cousins when we got to the front of
the line the bouncers where talking two my brother and cousin Aaron
when Mitchell said to take my beanie of I did and I over heard the
bouncer say to my brother they don’t like the look of me and they don’t
want trouble. My brother said he’s my brother I promise you he won’t
cause any trouble, the bouncer said something about he’s boss telling him
not to let me and if he does he will get sacked. We were all very shocked
and were left looking at each other dumb found. I felt so ashamed as there
were a few people at the door and asked the bouncer what mate are you
saying you won’t let me in. He said no mate, so I said they will be getting
a letter about this and thank’s very much mate and went home.
Jay Daley

The Applicant’s formal statement read:

1.My name is Jay Daley ....
2.On the night of the 24 July 2010, at approximately 9:00 pm, I visited my parents' house .... My brother, Mitchell Daley, and my two cousins, Aaron Daley and Howard Hall were also at my parents' house. I was wearing black pants, a collared shirt, brown leather Colorado shoes, a Grey Colorado beanie and a black jacket with a hood. While at my parents house, Mitchell, Aaron and Howard had a few drinks. I did not have anything to drink, as I do not drink alcohol.

3.At approximately 10:40 pm that night, I drove myself Mitchell, Aaron and Howard into Canberra City. We arrived in the City at approximately 11:00 pm. I parked my car in the car park opposite the Mooseheads Pub, on London Circuit, Canberra.
4.Mitchell, Aaron, Howard and I walked directly from the car park to Academy nightclub. We waited in the line at Academy nightclub for approximately 30 to 40 minutes. The line extended from the club entrance, along the club wall. Mitchell was standing directly in front of me in the line, Aaron was to his right, I was directly behind Mitchell and Howard was to my right.
5.While standing in the line, I noticed that there was a bouncer located at the front of the line, just outside the Academy nightclub entrance. The bouncer was of Caucasian decent, with blonde hair, and of mid-20s in age.
6.When we were standing towards the front of the line, the bouncer came over to Mitchell and began a conversation with him. I did not hear the conversation between Mitchell and the bouncer. After briefly talking with the bouncer, Mitchell turned around facing towards me and said, with words to the effect: "He is not going to let you in with your beanie". I responded with words to the effect: "Yeah no worries I will put it in my pocket." At that time, I took my beanie off and put it in my pocket.
7.The bouncer and Mitchell continued to have a conversation. I moved towards where they were having their conversation, and said with words to the effect: "What seems to be the problem here?" The bouncer responded with words to the effect: "I can't let you into the club because we don't like the looks of you and we don't want no trouble for the night." I again said, with words to the effect: "What is the problem?". The bouncer then said, with words to the effect: "The boss of the club has radioed down through the earpiece. He has seen you through the video camera and he is not going to let you into the club tonight... If I let you into the club, I would get sacked tonight."
8.Then I said with words to the effect: "What are you saying... I can't come into the club tonight?" He said with words to the effect: "No. I can't let you in." I said: "No worries mate. Expect a letter over this." I was deeply ashamed and embarrassed by this incident.
9.I then walked away from Academy nightclub towards the direction of the end of the line. As I walked past the line, I noticed a girl who was standing in the line wearing a beanie.
10.Mitchell, Aaron and Howard followed me away from the club. When we were approximately 100 meters from the club, I stopped to speak with Mitchell, Aaron and Howard. I said that I was going to go home. Howard said that he would go home also. Mitchell and Aaron remained in the city.
11.I arrived back at my car with Howard at approximately 12:00 am. At approximately 3:00 am or 4:00 am I received a telephone call from Aaron asking that I come to pick he and Mitchell up. I drove into the city to pick them up.
12.The following Tuesday, 27 July 2010, I made a Discrimination complaint against Academy nightclub with the Human Rights Commission.
13.I was deeply ashamed and embarrassed by the incident that occurred at Academy Nightclub on 24 July 2010. Since that time I have found it difficult to walk into public places, and I have not been to a nightclub since the incident. I have become very self conscious about the way that I look and I have become fearful of being refused entry at public premises.

The short statement of Aaron Daley read:
I would just like to write a letter of complaint about the way my
cousin was treated on the night of 27/07/10 while trying to gain
entry in to ACADEMY Night club.
There was 4 of us all Aboriginal, 3 of us drinking as Jay the
smallest and oldest in the group was the designated driver as he
don't drink .We waited in line and got to the front ready to go in
when the bouncer reckons that he was talking to his boss and he
was to allow the 3 drinkers in but was told Jay could not enter as
they did not want trouble and they did not like the way he looked
therefore refusing him entry.
After been told this, although angry he left the place.
The other 3 of us felt deeply hurt by this bouncers comments
because this club was going to let three people who was
drinking in but refused Jay .WHY
After everything that happens in Canberra and been our
National Capital one would think that gaining access to a club
wouldn't be so difficult.
Aaron Daley
The formal statement of Aaron Daley read:

1.My name is Aaron Daley ...
2.During the afternoon of 24 July 2010 I travelled from my home...to visit my cousin, Jay Daley. I arrived at Jay's house late that afternoon.
3.During the early part of the evening, Jay and I decided to go out in the city. I suggested that we go to visit Jay's brother, Mitchell Daley, to find out whether he would like to join us. I do not remember what time we travelled to Mitchell's house, however I do remember that it was after dark. Mitchell lives ... close to Jay's house.
4.Our cousin, Howard Hall, was also at the house. I was wearing blue jeans, black shoes and a quicksilver jacket. I do not recall what Jay, Mitchell and Howard were wearing. However I do remember that we were all dressed appropriately to go out in the city and that Jay was wearing a beanie.
5.We remained at Mitchell's house for approximately one or two hours. During this time Mitchell and Howard had a few drinks. Jay and I did not have any alcoholic drinks at the house, as he does not drink.
6.After a few hours Jay, Mitchell, Howard and I left Mitchell's parent's house to go to Canberra City. Jay drove us in his car. He parked the car in the car park opposite the Mooseheads Pub. We walk around the city to decide which nightclub to go to.
7.We arrived at Academy Nightclub at approximately 11:00 pm. We waited in the line for approximately 20 to 30 minutes. The line went along the wall of the nightclub, left of the entrance. In the line, Mitchell was standing to my left, Howard was behind me and Jay was behind Mitchell.
8.A bouncer was standing just outside the front door, at the front of the line. The bouncer was white in appearance and about six feet tall. He appeared to be aged in his mid to late 20s.
9.When we were 3 people from the front of the line, the bouncer came over to Mitchell and began a conversation with him. I did not hear the conversation between Mitchell and the bouncer. After having a brief conversation with the bouncer, Mitchell asked Jay to take his beanie off. Jay immediately removed his beanie and placed it in his pocket.
10.The bouncer then grabbed his ear. It looked like he was listening to someone who was speaking through his earpiece. The bouncer then pointed at Mitchell, Howard and I, and said, with words to the effect: "I will let you 3 in, but I am not letting him in" at which point he point at Jay. The bouncer then said with words to the effect: "The boss said he doesn't like the look of him."
11.Then Mitchell said, with words to the effect: "He is my brother." The bouncer responded with words to the effect: "We don’t want any trouble tonight." Mitchell then said, with words to the effect: "He isn't even drinking". Then Jay said to Mitchell, with words to the effect: "They've done the same thing to me before."
12.We then began walking away from the club. As we headed in the direction of the back of the line, I saw several people wearing beanies. Once we passed the end of the line, Jay said that he was going home. Howard said that he would also go home. Mitchell and I said that we would stay in the city for a little while longer. When Jay and Howard left us, we went to Mooseheads Pub. Later that evening I called Jay and asked that he pick us up. I am unaware of the time that Jay picked us up.

The statement of Howard Hall read:
Writing this letter of support for my cousin Jay Daley who was
the designated driver the night we were going to the Academy
nightclub in Civic 27/07/10.
I was with my cousins standing in line on the 27107/10 to go in
to the Academy Night Club and was surprised when we got to
the front of the line and the Bouncer said to my cousin Jay the
sober one and designated driver who workers as a Aboriginal
Ranger for the Act Government, that they don't like the way he
looks and that they don't want trouble therefore not letting him
in.
With this answer I was completely gobspacked as this guy is 5ft
4 tall don't drink and was the sober one out of the 4 of us the
other 3 being drunk.
This made us all feel completely hurt as we are from Country
NSW and this sort of thing happens all the time out west, but to
have it happen in our Nations Capital is not good.
This kind of behaviour has to stop for the good of the
country and for all the other Indigenous peoples who may
want to frequent the nightclub ACADEMY.
Howard Hall
The statement of Mitchell Daley read:
Writing this short letter to say how disgusted I was on the
night of 27/07/10 when trying to get in to the Academy
Nightclub in Civic.
There was 4 of us in line me ,brother Jay ,cousin Howard
Hall ,and cousin Aaron Daley.
We was going to the night club, stood in line like everyone else
and was extremely annoyed at what went on with the Bouncer
at the door.
Jay was the little one in the group and the designated driver for
the night so you can imagine our thoughts when they were going
to let us 3 drinkers in to the club and stopped Jay entering
because the bouncer had said they didn't like the way he looked
and did not want trouble therefore refusing him entry.
My Brother Jay although upset left the place and went home.
Mitchell Daley
18/01/11
On 6 July 2011 the Respondent filed its Statement of Facts and Contentions which read:

Facts
1.         The respondent operates Club Academy. Club Academy holds itself out as being Canberra's premium nightclub. It hosts international, national and local DJ events, theme nights and theme parties. It charges patrons an entry charge higher than other clubs to promote it reputation of being exclusive.
2.         To maintain its reputation Club Academy has a rigorous dress code and it takes other steps, such as regulating the mix of males and females.
3.         On the night in question, 24 July 2010, one of the security guards employed was Jack Michael Ryan. Mr Ryan was working as doorman when the applicant lined up with his companions with a view to entering Club Academy. He was wearing casual running shoes, casual pants and a large ski type jacket. His companions were neat and tidily dressed.
4.         Mr Ryan examined the applicant's appearance and concluded that his clothing did not meet the dress code for Club Academy and refused him entry.
5.         Mr Ryan says that his decision to refuse entry to the applicant was not influenced by the applicant's race or physical appearance.
Contentions
6.         The applicant submits that the respondent engaged in an unlawful act when refusing the applicant entry to Club Academy on 24 July 2010. The applicant further submits that the refusal of entry was because of the applicant's race or perceived disability. The relevant race is said to be the Aboriginal race but the alleged disability is not discussed or defined. Accordingly, the respondent only proposed to address the issue of race.
7.         There is no direct evidence, nor is there any inference available, that the applicant was treated unfavourably in being refused entry to Club Academy on the basis of his race.
8.      There are two key issues:
a.was the applicant treated unfavourably; and, if so
b.was the basis of the unfavourable treatment the applicant's race.

9.         The applicant was not treated unfavourably, even on its own case. The applicant's evidence includes the rightful concession that he was wearing a beanie at the relevant time, an item of clothing that is not allowed under the Club Academy dress code.
10.     Further, the applicant's evidence includes the words attributed to Mr Ryan: "we don't like the looks of you and we don't want no trouble for the night". The first point is that such language is inherently unlikely, but even if true those words convey a suggestion that the applicant was inappropriately dressed or was behaving in a manner that prompted exclusion from entry. Only by torturing the language in the circumstances of this case could this be construed as a reference to race.
11.     So, even on the applicant's version, there is no discrimination for the purposes of the Discrimination Act 1991 ('the Act').
12.     The respondent's version is inherently more likely and should be accepted. There is a dress code. The dress code excludes, relevantly beanies, cargo pants, ski jackets and joggers or training shoes. The applicant was wearing all of these. Mr Ryan's evidence makes it clear that it was this inappropriate combination of clothing being worn by the applicant that lead to exclusion.
13.     The origin of the applicant's claim in this Tribunal was his complaint to the Human Rights Commission. That complaint was referred to conciliation under the Human Rights Commission Act 2005 ('the HRC Act'). Section 66(2) of the HRC Act applies to communications made at a conciliation under that Act (see section 66(1)).
14.     Section 66(2) provides that the "Evidence Act 1995 (Cw1th), section 131 (Exclusion of evidence of settlement negotiations) applies to a communication or document to which this section applies as if the communication or document were a communication or document mentioned in that Act, section 131 (1)."
15. The evidence of Mr Condi includes reference to a communication at the conciliation and therefore section 131 of the Evidence Act 1995 (Cw1th) applies to that communication. Leaving aside section 8 of the ACT Civil and Administrative Tribunal Act 2008¹ for the moment, the starting position in considering what use can be made of such a communication is found in subsection 131(1) of the Evidence Act which provides that evidence of such a communication is not to be adduced.
16. However, subsection 131(1) of the Evidence Act does not apply and the evidence is admissible in certain circumstances set out in subsection 131(2) of the Evidence Act, including:
a.... (g) evidence that has been adduced in the proceedings, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence; or ...
b.(j) the communication was made, or the document was prepared, in furtherance of the commission of a fraud or an offence or the commission of an act that renders a person liable to a civil penalty; ...

17. As Mr Condi states in his evidence, the applicant changed his evidence about what he was wearing once he received a copy of the relevant dress code. The respondent's contention is that the communication at least fits within subsection131(2)(g).
18. There has been no discrimination. The application should be dismissed.

Annexed to the Respondent’s Statement of Facts and Contentions were:
(a)A statement of Frank Condi together (exh R1)
(b)A statement of Jack Michael Ryan (exh R2)
(c)A bundle of photos of patrons of the Club (exh R3)
(d)Various promotional material (exh R4).

The statement of Mr Condi read:

On 5 July 2011, I Frank Condi ...company director, state as follows:
1.I am a director of the respondent in these proceedings and am authorised to make this affidavit on its behalf.
2.I have worked in the hospitality industry since 1990 when I was employed by the Private Bin nightclub as a casual glass collector. I worked my way up whilst I was there to barman, DJ, security, head of security, bar manager and then general manager.
3.I left the Private Bin nightclub in about mid to late 1998 to work as the general manager of Pandora's nightclub. I was employed in this role until the end of 2000.
4.In about mid 2001 I took the position of general manager of Edgar's Inn in Ainslie which I subsequently purchased in December 2002. I am currently the sole owner of Edgar's Inn.
5.Towards the end of 2003 I started doing casual security work for Club Academy, Mooseheads and ICBM. I did this for about a year until I took over the general manager position with Club Academy in 2004. To date I remain the general manager of Club Academy. I became an equity owner in Club Academy in 2005.
6.I am also an equity owner and general manager of Sub Urban in Dickson.
7.The role of general manager of a night club/bar entails numerous responsibilities including overseeing marketing, food and beverage costs, management of staff, setting staff rosters, ensuring compliance with liquor licensing and policing laws, implementing procedures and policies for maintaining a safe environment for patrons and ensuring compliance, implementing dress codes, overseeing operational procedures and so on.
8.During any particular night Club Academy employs a bar manager as well as a floor manager, a night manager, 2 or 3 security guards as well as general bar, floor and door staff.
9.For the purpose of communication between the main staff (i.e. the managers) portable radio transmitters are used. These are used so that they can report to each other as required any incidents of trouble, broken glass, cleaning issues, report on patron numbers, control the flow of people coming through the venue etc.
10.When I became the general manager at Club Academy I implemented the use of an "Incident book". This is now also a requirement under section 131 of the Liquor Act 2010 (ACT). The reason I initially implemented the use of the incident book was so that I could monitor any issues that arose at the club, and so that it could be referred to when required, which included when police would attend to make enquiries. During all my years in the industry I have always maintained a good relationship with the police and I have always been more than happy to cooperate and provide information as and when I could.
11.All of the staff at Club Academy are aware of the requirement to record incidents in the incident book. The type of incidents that are required to be recorded include fights, threats, abuse to Club Academy staff etc.
12.Club Academy holds itself out to be Canberra' premium nightclub. It is not a pub or a pub/bar, and it is marketed as a leader of Canberra's clubs. It offers something different to patrons by hosting international, national and local DJ events, theme nights and theme parties. These include the Foam Party, Uni theme parties, and theme nights. It has a higher cover charge than other clubs promoting a level of "exclusivity" and because of that we have to ensure that the higher standards we market are upheld.
13.Club Academy does not have a 'feeder club' like Mooseheads, ICBM or those type of clubs. It does not have a bar down stairs and a nightclub upstairs. Because of this we have to remain a "step ahead" with more current DJ's and new music (i.e. before it hits the charts).
14.As part of its premier status, Club Academy has a strict dress code. Whilst it is almost an "unspoken rule" with the venues in Canberra that patrons need to be dressed neat and casual, Club Academy takes this up a level. A true copy of the dress code is exhibited and marked "FC 1".
15.The dress code specifically excludes anything that staff and security staff feel is "work wear" (which includes work clothes, trade wear, construction work wear), "colours" (gang colours such as bikie patches) and sporting attire. Any clothing that is dirty, ripped, alcohol stained, blood stained etc are also excluded. Joggers, cargo pants, and gangster type clothes are also excluded.

16.The dress code will be relaxed on certain nights in order to accommodate the theme parties or foam parties. All patrons that enter the premises on the night of a theme party are advised that the theme party is being hosted.
17.The dress code specifically excludes beanies, hats and jumpers with hoods. This is for a couple of reasons. Firstly, they do not fit with the culture of the club, and secondly it is a security risk. If there is an incident in the club and someone is wearing a hat or a beanie we will not be able to identify them on the security footage. There are security cameras all through all the premises and one of the main functions of floor staff is to walk around and make sure that people are not wearing hats and beanies. Often we find that people will put their hats and beanies on when they are having pictures taken but they will remove them afterwards. As I said earlier, floor staff are constantly walking around the premises to ensure hats and beanies are removed after pictures are taken.
18.In my experience there is generally not very much resistance from members of the public when the dress code is being enforced. When people are refused entry they generally ask why and generally accept the explanation.
19.Security staff are given instructions on who to refuse entry to Club Academy. Club Academy hires experienced security staff and I am the person who decides who will be employed. I always talk to the security staff about the type of behaviour and dress that should be excluded, however all the security staff know how to judge and deal with this as they are experienced.
20.When making a judgment about refusing entry into Club Academy the security staff will apply the dress code and then consider conduct and behaviour. Intoxicated people will not be permitted to enter. This can sometimes be a "hit and miss" approach because it can be hard to tell how intoxicated people are. The policy though is to err on the side of caution. Intoxication is obviously an issue because of behaviour and if we do not stop them at the front door and they get in, bar tenders can be fined for serving alcohol to intoxicated persons the club can be fined, and the licensee can be fined. Once a person is admitted to the club it is then harder to eject them, especially at Club Academy because it is a 2 level basement premises. In my experience it is far better to be cautious and keep people out in the first instance.
21.It is critical that security staff control the flow of the crowd entering the club. The "mix" of males and females has to be right otherwise the atmosphere can get very "tense" and this is when incidents are more likely to occur. If the club has a large volume of males as opposed to females then security staff will even this out by asking groups of males to wait or come back a bit later. This also depends on the "vibe" in the club on the night. I can walk into a club and feel tension or get a "vibe" straight away. Any experienced manager or security staff will be able to do this. This is the reason why either one of head security staff or the manger on the night will regularly walk around the club to gauge the feel. This is communicated to the security staff on the door and this goes to who will be permitted entry at any particular time.
22.Club Academy has a web site that posts details about upcoming events as well as photos of past events. The club hires photographers on a casual basis to walk around and take pictures throughout the night. These are mainly university students or casual photographers who are interested in developing their portfolios. They provide the pictures to Club Academy's marketing team who ultimately decide what pictures will be uploaded to the website.
23.We have found this to be a very popular marketing tool as patrons like to navigate the web pages to try to locate pictures of themselves and friends.
21.Photos are usually posted weekly depending on how busy the club is.
22.
I have reviewed the affidavit sworn by Amanda Louise Graham on 3 June 2011 and filed in these proceedings.

Ms Graham has exhibited to the affidavit numerous pictures that were either supplied pursuant to a subpoena issued on behalf of the Applicant to Club Academy or taken from Club Academy's marketing web pages. In relation to the exhibits I say as follows:
a)Exhibit ALG - 1: this is taken at a theme party;
b)Exhibit ALG - 3, 4, 5, 6, 9, 10, 20, : these patrons would have removed their beanie, hat or hood after the picture was taken, such practice as outlined above;
c)Exhibit ALG - 7, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45: these are taken at a foam party night;
d)Exhibit ALG - 11, 12, 15, 22: this is a theme party night;

e) Exhibit ALG -16, 17, 18, 19, 21 : these are patrons
posing/acting for the purpose of the picture;

f) Exhibit ALG - 25: this is taken at a traffic light party hence the colours, and again, the hat would have been removed after the picture.
26.I note that none of the pictures exhibited to Ms Graham's affidavit depict the general crowd at Club Academy. Accordingly, I have attended to preparing a range of pictures that have been uploaded to the Club Academy's website in the past and these are exhibited hereto and marked "FC 2 - 79".
27.In all my years in the industry I have never rejected someone from entering a club, including Club Academy, on the basis of race. This is not something that Club Academy permits and this would not be tolerated by security or other staff.
28.Each of the policies and procedures set out above have come about as a result of my experience in the industry. The desired outcome for Club Academy (and any club) is to maximise the flow of people in and out of the premises to maximise profits, whether by entry fees or money over the till. A good balance of males and females and a positive environment where patrons are able to dance, have a good time, and use the bar will equate to maximising the ability of a club to make profit.
29.I was not working at Club Academy on 24 July 2010.
30.On 20 September 2010 I participated in a conciliation conference with the applicant and his father. This was conducted at the instigation of the Human Rights Commission and was held at the offices of the Human Rights Commission. The conciliation conference went for a full day and during that conference the applicant provided an explanation of what he was wearing when he attended Club Academy on 24 July 2010. The applicant described his dress as a cargo pants with pockets down the side/king-gee type pants, a beanie, joggers and a big ski jacket which he indicated went to the middle of his thigh. He stated that the security guard advised him that he did not have the right look tonight (which I took to mean he did not comply with the dress code) and that his cousins who were also of aboriginal decent were permitted entry at that time based on what they were wearing.
31.On 25 May 2011 Club Academy complied with a subpoena issued to it on behalf of the applicant, and provided material in accordance with the subpoena which included a copy of the dress code.
32.The applicant has affirmed a statement in these proceedings on 6 June 2011. I note that in paragraph 2 of the applicant's statement he has stated that on 24 July 2010 when he attended Club Academy he was wearing black pants, a collared brown shirt, brown leather Colorado shoes, a grey coloured beanie and a black jacket with a hood.

The statement of Mr Ryan read:

On 6 July 2011, I Jack Michael Ryan ...labourer and doorman, state as follows-
1.I am currently employed by Club Academy and Sub Urban as a doorman. I also do labouring work for my father.
2.I have worked in the hospitality industry for approximately 3 years. I have worked for Club Academy ("the Club") since mid 2008 and Sub Urban since 2009, as a doorman at both.
3.The role of doorman is that of security. I have to make sure that I keep the standards of the Club at a certain level by being strict on who I let in. This means that the people that I let in have to be dressed appropriately and cannot be rowdy or intoxicated. As a doorman I am also responsible for looking after people if they are in trouble. I have to keep an eye out for potential trouble, stop any trouble/violence, check id's, keep an eye on the line and pay attention to what I am being told about the mix downstairs from the manager on the night.
4.Since I started working in the industry I have learned pretty quickly the type of person that is more likely to cause trouble. This includes persons who are sloppily dressed, engage in loud behaviour, engage in aggressiveness or are heavily intoxicated and males acting tough.
5.Club Academy holds itself out to be a premium nightclub. When I started working there I was told at the beginning that I had to make sure I adhered to all the rules and make sure that I was careful about who I let into the Club. I know that like other employees, I have to be strict. The dress and behaviour standards are higher at Club Academy than at other clubs around Canberra.
6.At the Club I wear an ear piece and I communicate with the duty manager and the floor manager. I am told by the manager, for example, if I need to hold off on letting too many males in for a while. Sometimes I will end up with a long line of males waiting to come in because I have been told to hold off while the mix evens out. I am also able to communicate with the floor manager if I need someone to come up and clean up some glass or other bits and pieces.
7.There are always at least 2 or 3 security/door staff on any given night. The other security staff that! work mostly with at Club Academy is Latu Sioeli. He is of aboriginal background. Latu and I are good friends and get on very well.
8.Club Academy has an incident book. All venues are required to have these. Staff are required to record incidents in the incident book whenever anything that could raise concerns occurs, regardless of how minor they are. Recent examples of what should be recorded in the incident book include a girl cutting her foot on dance floor, someone falling down the stairs, someone passing out in the toilets, people giving security or door staff grief when refused entry.
9.I record incidents in the book as they occur.
10.As mentioned above, the dress code is more strict at the Club than at other clubs. This is because it is more exclusive and is a leading club, not a bar or pub. Most clubs will let cargo pants in and more casual wear, we do not let any cargos in, no bum bags (it is a really bad look), no runners, no big hoodies, no ski jackets. No baseball caps, beanies, etc.
11.I am always very careful about who I let in and I make sure they are dressed properly. I can spot running shoes first, they are the easiest. It is easy to scan down the line and pick these out. Then I look at people more closely as they get closer to the door.
12.Behaviour is also a factor when assessing who to let in. Intoxicated people are not allowed in, and neither are loud, aggressive or rowdy groups. It is fairly easy to spot these people when they are in the line.
13.If there is a theme night or a theme party happening at the Club then we are told what clothing is allowed. The rules are a bit more relaxed on these nights.
14.Most people are generally understanding when they are refused entry. I find that if I am straight up with them they are less likely to give me grief.
15.I generally work at the Club on Thursday, Friday and Saturday nights.
16.I was working as security on the door at the Club on 24 July 2010.
17.I was first made aware of the complaint made by the applicant in these proceedings when my boss, Frank Condi told me about it late last year. I recalled the applicant and his companions being present that evening. I have been doing the job for years and I find that I can usually remember most things like this.
18.
I recall that the applicant was wearing joggers/running shoes. This is what brought him to my attention in the first place. He had on cargo or casual pants of some kind, and a big ski jacket. He was not dressed appropriately to enter the Club and he was with

2 other young males who were dressed very neat and tidy. I recall that this made him stand out even more, as he really did look messy.
19.I recall that I had a brief conversation with the group of males, the applicant being one of them, where I said words to the effect of "you're not dressed appropriately mate, you can't come in. You 2 can come in but you can't" I then said something to the effect of "the boss is on the camera, you're not dressed right" I find that if I say straight up what the reason is for refusing a person entry and then put the blame on the boss (whether the boss said it or not) then they are less likely to argue with me because it was not my decision to refuse them entry. On this occasion the no one had said anything to me via the radio.
20.I recall in this case that the guys were fine and there was no trouble. They were not acting tough and they were not drunk, it was that the applicant was just terribly dressed. They left. My decision to refuse the applicant entry had nothing to do with his race or physical appearance.
21.I have been advised by the solicitor for the Club that the applicant has filed a statement in these proceedings. I am aware of the content contained in paragraphs 6, 7 and 8 of his statement. I deny making any reference to the applicant being required to remove his beanie, as he was not dressed appropriately as a whole and removing a beanie was not going to fix that.
22.I also deny having the conversation as contained at paragraph 7 of the applicant's statement. At no time would I say the words as contained in that paragraph. I also deny that the applicant said anything further to me as alleged in paragraph 8 of the statement. I certainly do not recall any reference to a letter. No one has ever said anything like that to me.
23.
I am aware of the statement made by Aaron Daley and filed in these proceedings. I understand Aaron Daley to be one of the young guys the applicant was with on the night in question. I deny making any reference as set out at paragraph 10 of the statement.

I was clear that the applicant was not dressed appropriately and

I was straight up about this. I always am.
24.I further deny any discussion with any of the males about whether anyone was drinking or not. As I said above the discussion was very brief. I do not recall saying to them anything like "we don't want any trouble tonight" because there was no need to say this to them. They did not give me any grief and they left as soon as I refused entry to the applicant.
25.
When I did hear about this matter I just thought it would blow over as I knew there was nothing in it. In all my years in the industry

I have never rejected someone from entering a club, including Club Academy, on the basis of race. This is not something Club Academy permits and this would not be tolerated by security or other staff.
26.
Further, I am not racist and do not discriminate against any race, particularly those of aboriginal decent. I work with an aboriginal decent person at Club Academy, my best mate is aboriginal, and

I play football with Wests Rugby and a number of the players there are aboriginal.

The matter was listed for a directions hearing on 18 July 2011 at which time the matter was set for hearing on 24 August 2011.

On 10 August 2011, the Applicant filed an amended affidavit by Louise Graham (exhibit A2) setting out the circumstances whereby she came by the various photos of the patrons of the Club that were exhibited.

At the hearing Mr Eteuati, solicitor appeared for the Applicant and Mr Walker of counsel appeared for the Respondent instructed by Ms Mylechane, solicitor.

Neither party accepted an invitation to provide an opening of their case. After attending to exhibits the matter went directly into evidence.

The Applicant gave evidence. His evidence in chief was his written statement save that he corrected a reference to the colour of the beanie from grey to brown.

In cross examination the Applicant said that he had gone to his parents’ home about 9pm on 24 July with Aaron and met his brother and Howard at the parent’s house. He said that he had not taken a change of clothes with him.

All four left the parents’ house about 11pm for Civic. The other three men had been drinking to some extent but were not drunk. The Applicant is a non-drinker.

The Applicant said that he had previously been refused entry to the Club and that he had never been inside the Club.

They queued up for about 40 minutes. A bouncer spoke to the brother out of the Applicant’s earshot. The brother then told the Applicant that the bouncer would not admit him to the Club with the beanie on and so he should remove it. The Applicant then spoke to the bouncer directly who told him that the man upstairs had told the bouncer by radio that he did not like the look of the Applicant and did not want trouble. There was no reference to clothes or race in this conversation.

The Applicant was wearing a ‘sloppy joe’ jacket with a hood. He described the other clothes he was wearing which included black cargo pants.

Part way into the cross examination the issue of the precise description of the clothes became bogged down in semantics. The Tribunal invited the Applicant to produce the clothes in question. The Applicant said he believed he had them at home. The cross examination was adjourned to permit the Applicant to return home and collect the clothes.

In the meantime and for the sake of convenience to its witness and avoidance of time wastage, the Respondent called Mr Condi.

Mr Condi’s evidence in chief was his written statement. Mr Walker for the Respondent took him through some additional matters.

Mr Condi is a director of the Respondent and the manager of the Club.

He said that the Club is marketed as Canberra ‘premier’ night club and aims to be ‘a bit above the others’. This exclusivity is achieved through the choice of music and a dress code. The dress code was identified as being that which was produced under subpoena.

Mr Walker took Mr Condi through a range of photos of patrons that appeared to show patrons dressed inconsistently with the Dress Code including beanies and jackets.

Mr Condi said that it depended on what night the photos were taken. The Club has theme nights during which they accept a lower standard of dress.

The Tribunal put to Mr Condi that the photos all showed young attractive people and asked whether being physically attractive was a criterion for entry. Mr Condi said that some places do adopt this policy but not the Club. He later said that he had adopted this basis of discrimination on some occasion but not generally. The reason why the patrons were young is because that is the demographic that the Club targets.

In cross examination, Mr Eteuati asked Mr Condi about the Club’s gender balance policy. Mr Condi admitted that the Club does refuse admission to males from time to time in order to strike the right gender balance in the Club. He said that females tend to spend their time dancing and not drinking which is not profitable for the Club while males tend to spend their time drinking and not dancing which is profitable but it leads to trouble. He said the right balance is to have more than 50% females.

Mr Eteuati took Mr Condi through other photos showing patrons in the Club wearing clothes that appeared to be inconsistent with the Dress Code. Mr Eteuati pressed Mr Condi on how bouncers were to make the relevant fashion judgement embodied in the Dress Code as interpreted by Mr Condi.

Mr Eteuati asked Mr Condi to explain the photos of patrons wearing hooded jackets in the Club. Mr Condi said the staff would generally ask the patron to remove it and check it in down stairs in foyer.

At the end of the cross examination, the Tribunal purported to summarise the evidence of Mr Condi on this issue to the effect that the Dress Code was just a rule of thumb that was not capable of close enforcement and in this sense was not prescriptive. The parties were invited to comment on this summary.

Aaron Daley gave evidence. His evidence in chief was his written statement. In a brief cross examination he said that he had brought a change of clothes with him to the Applicant’s house and changed into those clothes before going to Civic and to the Club.

The matter was then adjourned to the 25 August. At the start of proceedings the Applicant resume cross examination. He said that he had been unable to find the jacket and pants that he had been wearing on the night. He had the shoes and the shirt which were shown to the Tribunal.

The shoes did not look like runners or joggers and appeared to be sufficiently dressy for a night club.
The Applicant said that he had rang friends and relatives to locate his pants and jacket, without success. In the course of saying this, the Applicant referred to his pants as ‘tracksuits’ or ‘trackies’. Mr Walker spent some time in cross examination concerning what the Applicant meant by the use of this description of the pants.

The Applicant vascilated between describing the pants as ‘trackies’ and pants. He said that he calls all long pants ‘trackies’. He even described Mr Walker’s suit pants as ‘trackies’.

The Applicant said that the jacket was black with a green patch across the front upon which was written SECURITY.

The Applicant was cross examined on his formal statement which did not appear to use words consistent with the vocabulary used by the Applicant in his evidence before the Tribunal. He said that the statement had been composed by his solicitor and this accounts for the change in terminology from ‘trackies’ to pants in his formal statement.

The Applicant was cross examined on his movements on the day in question and particularly whether he had changed his clothes at any time during the day before going to the Club. The Applicant gave various versions of events but said that the clothes he wore to the Club were definitely not those he had worn during the day.

It appeared to the Tribunal that the Applicant did not in fact have any real recollection of the events of the day in question prior to the unpleasant events at the Club. He may have been doing his best to reconstruct history but this is not evidence. This proposition was put to the parties by the Tribunal.

Mr Ryan was then called for the Respondent. He was subject to cross examination and to questions from the Tribunal. Mr Ryan maintained that he had barred the Applicant because of his dress, being the jacket, beanie, pants and shoes. He claimed a recollection of the clothes and of the reason for his decision.

Mr Ryan ultimately accepted that the jacket and beanie were not serious issues because they could be removed and left at the foyer. He accepted that this was a common occurrence.

Mr Ryan said that shoes were joggers and were scruffy. The shoes were before the Tribunal and the Tribunal did not share Mr Ryan’s description.

Mr Ryan then moved position again and said that it was the pants, being cargo pants, to which he objected.

Mr Ryan was cross examined about the point of time at which he recalled the events of the night and in particular the Applicant’s dress. He said that he had recalled the events when Mr Condi asked him about towards the end of 2010. When asked how he would remember this particular event after this lapse of time, he said that small things jogged his memory.

Mr Ryan said that sometimes the Club will exclude people on gender grounds and sometimes on the grounds of dress. He denied that race was ever a factor. He said that he sometimes barred people who had a ‘threatening appearance’.

Mr Ryan denied that he had anything against aboriginal people. He said he played football with a number of aboriginal men and one of his fellow staff at the Club was aboriginal.

Mr Ryan admitted that he had lied to the Applicant when he said that his boss upstairs had radioed to him and told him not to admit the Applicant. Mr Ryan said that the decision was entirely his own made on the spot.

Mr Ryan’s evidence was most unimpressive. The Tribunal indicated that it did not believe that Mr Ryan had any recollection at all of the events and that he was giving false evidence for reasons best known to himself.

The Respondent did not call further witnesses.

Prior to submissions the Tribunal outlined its preliminary views and invited the parties to address those matters in their submissions.

The preliminary views were as follows:
(a)Mr Ryan’s evidence was of no value;
(b)The Applicant’s evidence on the events preceding arriving at the Club was of little value;
(c)The Applicant was not affected by alcohol and was behaving appropriately at all time;
(d)Gender discrimination was admitted by the Respondent through both
Mr Condi and Mr Ryan but this was not the issue before the Tribunal. There was no evidence and no suggestion of a gender based exclusion in this case;
(e)The Applicant was not barred because of his clothes;
(f)The possibility that the Applicant was barred due to Mr Ryan’s subconscious reaction to the Applicant’s aboriginal facial features was not put by the Applicant despite the Tribunal’s invitation to do so, and there was no evidence on that issue;
(g)The other three men with the Applicant were aboriginal and were not barred; the patrons of the Club were shown in the photos to be cosmopolitan, which tended against the proposition that the Club discriminated on the basis of race;
(h)The patrons of the Club demonstrated a common feature of being young and attractive people. Whilst this was not unlawful it appeared to be more than a co-incidence and consistent with the alleged ‘exclusivity’ to which Mr Condi referred.

Mr Eteuati for the Applicant argued that if the Applicant was not barred due to his dress or behaviour then by inference it must have been due to his race.

The Tribunal put to Mr Eteuati that his was sounded much like the subconscious racial discrimination that the Tribunal had raised earlier in the proceedings which he eschewed reliance upon; and for which there had been no evidence led.

The Tribunal put to Mr Eteuati that the exclusion of dress and behaviour as a basis for barring the Applicant does not lead to the necessarily conclusion that the basis must have been race. There are other possibilities such as discrimination based on age and physical appearance that had been put to
Mr Condi.

The final state of the Applicant’s submission was that the Tribunal should infer that race was the true reason for Mr Ryan barring the Applicant. The Tribunal indicated that this did not accord with the evidence concerning Mr Ryan’s own involvement with aboriginal people, the fact that the other three men were not denied access and the cosmopolitan nature of the patrons of the Club.

Mr Walker took issue with the Tribunal’s suggestion that the Club was discriminating on the basis of physical appearance. He said that the photos were themselves selectively chosen by the Club to portray the image of the Club patronised by young attractive people, but it was just a marketing ploy.

The Tribunal raised with Mr Walker the question that had been put to Mr Condi, namely, whether the Club would admit two aged grannies or an aging overweight and rugged looking male on a Friday night. Mr Condi was non committal on the point as was Mr Ryan.

At the end of submissions, the Tribunal was not persuaded that its preliminary view should be altered and delivered an oral decision in the terms of
paragraph 74 above. In short, the Tribunal could not find on the evidence that Mr Ryan’s actions were motivated by the Applicant’s race.

The Tribunal noted Mr Walker’s submission that its suspicions concerning the true reason for denying the Applicant entry did not go beyond a suspicion and could not constitute a finding of fact.

Following the hearing the Applicant sought a statement of reasons for the decisions which are those set out above.

………………………………..
Mr A. Anforth
Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO:

APPLICANT:

RESPONDENT:

COUNSEL APPEARING: APPLICANT:

RESPONDENT:

SOLICITORS: APPLICANT:

RESPONDENT:

OTHER: APPLICANT:

RESPONDENT:
TRIBUNAL MEMBER/S:

DATE/S OF HEARING: PLACE: CANBERRA

DATE/S OF DECISION: PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: