Ferguson v Shoalhaven City Council - [2023] NSWCATAD 276

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Ferguson v Shoalhaven City Council [2023] NSWCATAD 276
Hearing dates: 8 February 2023, 30 March 2023, 1 June 2023
Date of orders: 2 October 2023
Decision date: 24 October 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: M Tibbey Senior Member
J Herberte, General Member
Decision:
1.   The applicant’s claim of racial discrimination is substantiated in part.
2.   The remainder of the applicant’s complaint of racial discrimination is dismissed.
3.   The applicant’s complaint of victimisation is substantiated.
4.   An apology be furnished to the applicant, in such terms as the respondent sees fit, within 28 days of the date of publication of these reasons for decision.
5.   Damages by way of compensation in the sum of $10,000 is to be paid to the applicant within 28 days of the date of publication of this decision.
6.   The respondent shall take all necessary steps to review the bar on the applicant attending at and/or staying at any of the parks under the control of the respondent, including Lake Tabourie. This review shall be conducted pursuant to the rules and procedures now put    in place by the respondent.
7.   Within 12 months of the date of publication of this decision, the respondent shall undertake anti-discrimination training for all personnel working in holiday parks operating on land owned by the respondent.

Catchwords:
HUMAN RIGHTS – Racial Discrimination - Victimisation

Legislation Cited:
Anti-Discrimination Act, 1977 (NSW)

Cases Cited:
Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143
Bassili v The Star Pty Ltd [2016] NSWCATAD 167 Commission of Corrective Services v Aldridge [2000] NSWADTAP5;
Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24;
Caton v Richmond Club Ltd [2003] NSWADT 202;
Commission of Corrective Services v Aldridge [2000] NSWADTAP5;
Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232
Cook v Scruffy Murphy’s Pty Ltd [2007] NSWADT 129
D v Berkeley Challenge Pty Ltd [2001] NSWADT 92
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Grass v Voyager Tennis Pty Ltd [2023] NSWCATAP 168
Grogan and Ors v First Rate Leisure Pty Limited and Ors [2007] NSWADT 294;
Hall v A&A Sheiban Pty Ltd [1989] FCA 72; 20 FCR 217
Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99
Jones v Dunkel [1959] HCA 8; 101 CLR 298

Texts Cited:
Rees, Rice and Allen, Australian Anti-Discrimination Law, Federation Press, Third Edition 2018
Principal judgment

Category: Principal judgment
Parties: Geoffrey Ferguson (Applicant)
Shoalhaven City Council (Respondent)
Representation:
Counsel:
S McIntosh (Respondent)
Solicitors:
Applicant (Self-represented)
Marsdens Law Group (Respondent)

File Number(s): 2022/00167304
Publication restriction: Nil

REASONS FOR DECISION

The parties

This was a complaint of racial discrimination and victimisation made by the applicant, Mr Geoffrey Ferguson (who will be referred to as ‘the applicant’) against the Shoalhaven City Council (‘the Council’ or ‘the respondent’). It was accepted between the parties that the applicant is a First Nations Aboriginal man.
Holiday Haven Lake Tabourie (‘the Park’) is a holiday park containing tent sites and cabins, managed and operated by LPTO Pty Ltd (‘LPTO’) pursuant to a contract between LPTO and Shoalhaven City Council (‘the Council’ or ‘the respondent’), the owner of the land and Park Owner, as set out in Schedule 1 of the Holiday Parks Occupation Agreement, annexed to the affidavit of Ms Dyer dated 2 February 2023. .

Background Summary

Prior to the events the subject of this application, the applicant claimed, and it was not disputed, that he had been a full paying guest of Holiday Haven Lake Tabourie (‘the park’) on a number of occasions over about 50 years, with members of his family.
On 15 June 2021, the applicant made an initial booking to stay at the park from 15 to 21 June 2021. On 20 June 2021, during the COVID-19 pandemic, the applicant extended his stay until 26 June 2021, with extensions continuing until 15 August 2021.
From 15 August 2021 to 11 October 2021 the applicant resided at the park as a displaced person, due to the pandemic. There were only three guests in the park at that time, who were each ‘displaced’ as a result of a public health order due to Covid-19. It was common ground that during this time, until 2 November 2021, relations between the applicant and park management had been amicable and friendly.
During that time, the applicant occupied a powered site with a tent. He had a kiln there and made ceramic pottery. He was provided with a key to an ensuite at no additional cost. During this time, the park was otherwise closed due to COVID-19.
Ms Alana Kelly Jansma-Smith, a Director and shareholder of LTPO and one of the two Park Managers, provided an affidavit and gave oral evidence. She stated that she had a number of fairly amicable, pleasant interactions with the applicant during his time at the park. When he asked if he could assist with work required in the park in any way, she talked with the other manager, Ms Scott. and they decided that he could be permitted to paint a mural on a water tank in the park. Ms Jansma-Smith arranged brushes and paint for the applicant, who painted a mural. It was agreed between the parties that the mural was very attractive.
During the period 15 August 2021 to 11 October 2021, services were provided to the applicant that included providing him with access to a cabin for one night during a severe storm.
On 11 October 2021, the park was reopened.
The applicant alleged that he confirmed with office staff on more than one occasion early in October 2021 that his booking was “safe” until at least 6 November 2021. This was important to him as he had a meeting on zoom with the Australia Council on 5 November 2021. The respondent alleged that on 11 October, by telephone, Ms Scott informed the applicant that he would have to move from the site he occupied by 4 November 2021 due to a previous booking.
On 29 – 30 October 2021, the applicant was made aware by staff at the park that the site he had been occupying was allegedly booked by another patron and that he would have to move from that site before 4 November 2021. He agreed to do so and paid for another site, but was unhappy about having to move.
On 2 November 2021, the applicant alleged that the change in booking involved racial discrimination. There was an interchange between the applicant and a junior office staff member on that day about the applicant being required to move and his “disappointment” at that and he complained that it was racially discriminatory that he had to move.
A version of what occurred during the interchange was related to Park Manager Ms Scott by a junior staff member who had been present at the interchange, Ms Samways. Ms Scott then told the other Park Manager, Ms Jansma-Smith, what she had been told by Ms Samways. Ms Jansma-Smith spoke with Ms Samways and then attended at the applicant’s (then) site and required that the applicant immediately vacate the park. The police were later called to escort him from the park. They arrived with a paddy wagon and spoke to the applicant in front of others about when he would leave. Ultimately Mr Ferguson left in the evening of 2 November 2021 without being escorted to do so by police.
The applicant alleged that the way in which he was treated after the interchange constituted victimisation arising from his earlier complaints of discrimination made on 2 November 2021 in the interchange, relating to the changing of his booking and site.
A report of the events was sent to the Council by Ms Scott, Park Manager, on 2 November 2021, setting out her version of what had allegedly occurred. The applicant also later made a formal complaint to the Council.
The applicant was banned, without any notice to him, from booking in at any Council-owned site in the local government area for an indefinite period. That ban is still in place.
These matters will be addressed in greater detail below.

Orders Sought

The applicant seeks the following Orders:

A conciliation with park representatives;

An apology by park staff for alleging without evidence that the applicant had schizophrenia;

An apology by park staff for an “overreaction” to his complaint about the double booking and for the hurt, distress humiliation caused to him;

An agreement to ally fears of staff and cessation of instructions to call the police if the applicant is seen at Lake Tabourie;

Cessation of negative reporting on these events;

Retraction of the banning order at the park and all other council-owned parks in the local government area;

A statement in park records to show that a race discrimination complaint was made about the incident;

Compensation for damage to professional reputation and disruption to his work;

Compensation for pain and suffering due to “public humiliation and defamatory rationales;”

A recognition that there was “a racist underpinning” to the whole series of events that culminated in the applicant having to leave the park.

The respondent seeks that the application be dismissed.

The Hearing

The hearing took place over several days. The applicant was unrepresented. Mr McIntosh of Counsel, instructed by Mr Baird, Solicitor, appeared for the respondent. All witnesses for both parties were cross examined. Submissions were received from the parties after the hearing, from the applicant orally, at his request, and from the respondent in writing, at their request.

Complaint Period

The period accepted for the complaint by Anti-Discrimination NSW is 31 October 2021 to 2 December 2021. The Tribunal is bound by that complaint period.

STATUTORY FRAMEWORK

What is required in order to establish discrimination on the grounds of race?

Section 7 of the Act sets out what constitutes racial discrimination as follows:

A person ("the perpetrator") discriminates against another person (
"the aggrieved person" ) on the ground of race if the perpetrator--
(a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or
(b) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

Section 4A of the ADA provides that:

If—
(a) an act is done for 2 or more reasons, and
(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

In order to establish a claim of discrimination, the applicant needs to establish that he was in fact as treated less favourably than others in the same or similar position (sometimes referred to as ‘differential treatment’) and that at least one of the reasons he was treated less favourably was “on the grounds of” race (sometimes referred to as ‘the causation question’).
In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [60] – [65], the Tribunal discusses how the question of whether or not there has been “less favourable treatment” of the applicant “than others in the same or similar position” where the comparator is a hypothetical comparator, as it is in this case. This case is similar to Dutt in that, as stated in Dutt:

“The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant’s race would have been treated differently.”

The words “on the grounds of” have been paraphrased as “because of”, “due to,” “a real” reason, a “genuine” reason or “true reason” for the treatment alleged to have been discriminatory (Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
The applicant bears the onus of proof that he was treated less favourably “on the grounds of”, “because of” or “due” (at least in part) to his race (Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56].
If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered (Dutt v Central Coast Area Health Service [2002] NSW ADT 133 at [59] – [65]; Commission of Corrective Services v Aldridge [2000] NSWADTAP5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].)
In cases where there is no direct evidence of the discrimination, the applicant may use in support inferences drawn from the primary facts: see Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147; Khanna v Ministry of Defence(1981) I.C.R.
In Dutt -v- Central Coast Area Health Service [2002] NSWADT 133 at [70], the Tribunal stated as follow in relation to the drawing of inferences, a passage that has been oft-cited since then.

70 The exercise of drawing inferences was discussed in detail by this Tribunal, differently constituted, in Hafez v Warilla Women's Refuge Ltd & Ors [1997] NSWEOT, in A v B [1997] NSWEOT, and in Edwards. The authorities canvassed in those decisions, and in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, identify the following considerations in the drawing of inferences:
i. a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts
ii. an inference must be reasonably drawn on the basis of the primary facts
iii. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference.
iv. a fact relied on as the basis of an inference need not be proved to the requisite standard of proof
v. it is not enough that the inference is a mere possibility: it must be one of "probable connection"
vi. the inference must be a logical one, and not supposition
vii. an inference cannot be made where more probable and innocent explanations are available on the evidence.

Section 19 of the Act sets out what constitutes racial discrimination in the provision of goods and services as follows:

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race-
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which the other person is provided with those goods or services.

What is required in order to establish victimisation?

Section 50 of the Act defines victimisation as follows:

(1) It is unlawful for a person ("the discriminator") to subject another person (
"the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has--
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

In Grass v Voyager Tennis Pty Ltd [2023] NSWCATAP 168, the Appeal Panel of NCAT considered what is required to prove victimisation and, at [32], cited Deputy President Hennessy ADCJ in Najmitdinov v Woolworths Group Ltd [2019] NSWCATAD 51 at [9], where she stated that:

“There are three elements of s.50(1). First, the applicant must have been subjected to a detriment. Secondly, the applicant must have done one of the things listed in s.50(1)(a)-(d) or the discriminant knows or suspects that the person has done or intends to do any of those things. Thirdly, the detriment must be “on the ground” that the applicant has done, or intends to do, one of those things.”

In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [234 – [244], the Tribunal discussed what is required in order to prove victimisation as follows:

234 If an applicant has no direct evidence that their conduct under s50(1) was a ground for their being subjected to a detriment, they can rely only on inference.
235 The approach taken by this Tribunal to assessing evidence in victimisation complaints is set out in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at p 78,986 (see D -v- Berkeley Challenge and the decisions cited there at para 99). We see the steps as logically proceeding in this order: a Tribunal will ask whether an applicant did or was suspected of doing one of the acts in s50(1), and whether the respondent did anything which caused detriment to the applicant. If the answer to both is `yes', the Tribunal will then ask whether there is a causal link between the two: did respondent do that thing on the ground that the applicant did or was suspected of doing one of the acts in s50(1)?
"on the ground"
236 There is in our view an issue to be resolved as to how the term, "on the ground" should be read in s50(1). The approach taken by the Tribunal has been to ask whether the applicant's assertion of a right under the ADA was a `real' or `operative' ground (see D v Berkeley Challenge at para 103, and Sivananthan at para 40, both citing Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99, at pp 105-6).
237 In University of Ballarat v Bridges & Anor (1995) EOC 92-681 Justice Ormiston of the Victorian Supreme Court spent some time reviewing authorities and analysing the term "on the ground of" in relation to direct discrimination. He said at p78,175, that
it is not sufficient merely to find a causal relationship between and alleged `discriminatory' act and the ultimate act or decision which is claimed to constitute unlawful discrimination . . . `ground' or `reason' connote a basis which actuates or moves a person to decide a matter or to act in a particular way . . ."
238 His Honour quoted Deane and Gaudron JJ in Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 saying, at p 176: "Genuinely assigned reasons for an act may, in fact, mask the true basis for that act or decision" (Ormiston J's emphasis).

239 It seems that in describing the Tribunal's exercise as an inquiry to find a `real' or `operative' ground, or true basis, for conduct, the authorities do no more than emphasise the need for the applicant to identify a ground which has a direct causal link to the conduct: "a proximate bearing . . . a causally operative effect" (Street CJ in Director General of Education v Breen at page 75,429), and to distinguish the reason for conduct - the `real' ground - from the intention or motive for the conduct: cf Browne-Wilkinson VC in James v Eastleigh Council cited by Ormiston J in University of Ballarat.
240 In summary, once a ground for conduct is identified, that ground is a real or operative ground, and the need to describe it as such can be seen as redundant.
241 A further issue is how, in the absence of s4A, to deal with a situation when there is more than one ground for the detriment. In Waterhouse, after discussing the need for the Tribunal to find "the real ground" for conduct (p106A-F), Clarke JA anticipated an occasion when the Tribunal "decides that there are two grounds for the action or decision one which does and one which does not fall within [the proscription of the ADA]". In that circumstance, he said, a contravention of the Act "will have been made out. That is because [the conduct] was accorded on the ground, amongst others, of [a proscribed consideration]".
242 His Honour accepted that each was an `operative' and `real' ground for the conduct, in that there was direct causal link, and that for a finding of a breach of the ADA it was sufficient that only one of the grounds was unlawful under the Act. This reasoning seems to result in very nearly if not the same effect as s4A.
243 We do not therefore, in this decision, ask whether Dr Dutt's allegation of race discrimination was a `real' or `operative' ground, but only whether it was `a ground', for any detriment.
244The term `detriment' means "loss, damage or injury" to the applicant (Sivananthan v NSW Police Service [2001] NSWADT 44 at para 40; …..and that "the applicant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter" (Bogie v The University of Western Sydney EOC 92-313 (1990) at 78,146).

We respectfully adopt that analysis.

Finally, Section 53 of the Act deals with liability of principals and employers, as set out below:

(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.
(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

DETAILED EXAMINATION OF WHAT OCCURRED

The Booking Change

As at the start of October 2021, the applicant believed that he had a booking for and could continue his stay at a specific site, known as “powered site 323”, until 6 November 2021. He wished to stay until at least that time in order to accommodate his zoom meeting with the Australia Council on 5 November 2021.
The applicant's evidence is that early in October of 2021 he had specifically checked with two employees of the park about the extension of his booking until 6 November 2021 by visiting the office. He asserts that the office employees checked the computer website and confirmed that this site was “his” until 6 November 2021. There is no documentary evidence of this.
Sometime in October 2021, (the respondent says 11 October by telephone call with Ms Scott and the applicant says possibly on 29 or 30 October 2021 in person), the applicant was informed that he would need to change sites before 4 November 2021 due to a prior booking. It is necessary to consider whether the changes in the booking constituted racial discrimination.
The respondent produced in evidence an extract from the computer records of the park that appeared to show that as of May 2021, there had been another booking for the site occupied by the applicant.
On 1 November 2021, the applicant asked whether he could extend his stay at a different site and was offered 6 nights at an alternate site. He was not shown a range of sites from which he could choose, but was simply offered one particular site, which he saw as being less desirable because it was less peaceful. He nevertheless agreed to that change of site and paid $232.16 for that continuing booking, by Mastercard, receipt no 4495129.
It is common ground between the parties that when the applicant was told that he would need to move sites, he agreed to do so. Nevertheless, it appears that he was unhappy about this as he presented to the park office on 2 November 2021 and had an interchange with staff there (‘the interchange’), which will be considered in detail below. The applicant alleges that he was discriminated against on the grounds of his race in the interchange and circumstances of the booking being changed.
The applicant also claims that he has been victimised in the response to his representations by the respondent after the interchange.
At that time, a document entitled “Guidelines for Park Managers”, issued by the Council and dated 23 January 2015 (‘the Guidelines’) stated (in part) at 3.8.5:

“A Park Manager may cancel a booking if they deem the Patron to be an unsuitable guest. The cancellation may occur before arrival or during their stay….
Before any booking is cancelled the Park Management must notify the Patron of their intention to cancel the booking and their reasons for doing so either by email or phone call and [sic]. If after a number of reasonable attempts the Patron cannot be contacted before arrival the Park Manager may cancel the booking.”

The Guidelines also contained a prohibition against discrimination, a process for dealing with complaints and a health and safety policy.

The Interchange

It was common ground between the parties that the applicant came to the park office at around 9.10am on 2 November 2021 and spoke with Ms Jasmin Samways. He wore a red headband, which he had not previously been wearing at the park, but which, in evidence, he explained was a mark of his Aboriginality and pride in his First Nations status. He had a kettle in his hand, which had been loaned to him by the park management. What followed next is contested.
The applicant contended that he was polite, direct, serious but not intimidating or harassing. He intended to express his disappointment at the booking he thought he had organised to last until 6 November being, as he saw it “overridden” or not honoured and that someone else had been allocated the site he was occupying. He complained about what he saw as racial discrimination in the park. The respondent contended that his conduct during the interchange was intimidating and harassing.
It is necessary for the Tribunal to consider whether in changing the booking the applicant was treated less favourably than others (including a hypothetical comparator) and, if so, whether at least one of the reasons for such treatment was the applicant’s race, as an Aboriginal person.
When Mr Ferguson went to the office on the morning of 2 November, 2021, he spoke with Ms Samways. He denied that he made a complaint and says that he “expressed disappointment” that he felt “disrespected” because he had checked the dates his booking ended several times earlier in the lockdown and had been assured twice by Ms Scott, Park Manager, that his booked lasted until 6 November 2021, after his meeting with the Australia Council on 5 November 2021. He says that she checked the computer when assuring him that his booking of that site was secure until 6 November 2021. Then in late October he had been told that there had been a booking of that site in May 2021. Although he had been offered and accepted and paid for another site, he was apparently distressed at the double booking and not being able to stay at the site he had been at since July 2021, through the pandemic.
When the applicant came to the office on 2 November 2021 and complained about what he saw as the loss of his booking, it does not appear that there was any attempt by Ms Samways to have the complaint or “disappointment” reduced to writing, as set out in the Guidelines from Park Managers in dealing with the complaint.
CCTV footage of the interchange is not available as it was not retained by the respondent.
Ms Samways recollection was that the words used by the applicant when he came to the office that morning included complaints more broadly than the change of booking, and concerned other aspects of his stay at the park on this occasion, including alleging racial discrimination, saying:

“You made me sleep outside like an animal. You treat me like a dog. When we had that storm you made me sleep outside. You didn’t even offer me a cabin. You all treat me differently. Your workers told me I need to be careful walking round here because of those cameras. They are racist and think I am a thief!”

Ms Samways says that she explained that the “workers” to whom the applicant had referred were not park staff, the applicant said words to the effect of:

“you don’t care what you have done” and “oh well, other people who stay in this park are racist” and “you wouldn’t do anything [about] it”

Ms Samways alleged in her affidavit that the applicant “slammed” the kettle he was holding on a shoulder-high counter in front of her “quite loud” “right in front of my fact which shocked me” with a movement with “greater than normal force”. However when, during the hearing, the Tribunal asked her to demonstrate this, the movements of Ms Samways did not indicate that the movements were particularly forceful.
The respondent’s counsel argued in his submissions that this can be attributed to her being “more demure and reserved than the applicant” and having “a different physical stature and premise to that of the applicant”. Whilst she is smaller in stature than the applicant, we are not satisfied that this accounts adequately for the fairly routine way that she demonstrated putting the kettle on the bench, which was not loud or aggressive.
The applicant denies “slamming” the kettle down loudly or doing so in any way that was confrontational or which could have reasonably been perceived as intimidating or threatening.
Ms Samways says that she felt frightened. There is no direct evidence that any fear was generated due to the race of the applicant or whether she was more frightened because the applicant was Aboriginal or due to his Aboriginality or whether one of the reasons for the extent of her fear was his race. The respondent alleges that it was simply his conduct that caused her to feel frightened.
The applicant maintained his evidence as to his state of mind under cross examination. It was put to him that when he approached the office on 2 November, he was “partially aggrieved” that his hope of staying at the site he was on until 6 November would not be fulfilled. He responded that “I was misinformed, misled or not informed in a timely manner”. He denied that he did anything to cause either Ms Samways or Ms Ryan-Roach to be fearful, saying that he approached them wanting to “communicate disappointment” “in a respectful way” “with a level of gravity,” “assertive, confident.”
He said that Ms Samways “would have seen sorrow in my eyes” and “disappointment” but denied that he was tearful. He said that

“what I said was measured”
and
“I put the kettle on the counter. I didn’t slam it. The CCTV footage would have shown my gesture.”

He was asked whether he felt a lack of respect from Ms Samways and said

“not from her but regarding what would happen. I expressed my disappointment to have been disturbed and asked the junior staff to communicate this.” “There was a failure to give proper information and to record my booking properly”. “I went to management as respectfully as I could, uncomfortable or unhappy having to move because of what I’d been told a month ago and an accumulation of casual racism.”

He said that he did not accuse Ms Samways personally of racism.

Mr Ferguson disagreed with the statement of Ms Ryan-Roach, another junior staff member who was also present when the interchange with Ms Samways occurred that his voice was “loud” and that he was “aggressive”. He agreed he may have been moving around and may have made gestures but did not accept that he had been speaking loudly.
Ms Samways agreed in cross examination that Mr Ferguson may have talked about being unhappy to leave his ‘site’ rather than his ‘land’, as Ms Scott recorded in the incident report she made to Council. She agreed that Mr Ferguson had not made any verbal or other threats to her and said “emotional perhaps” but did not elaborate further. She said he had “big movements of the arms and pointing to me was frightening”. There was a counter between them in the office that was head high if she was seated and chest high if she was standing. It had a covid protection screen on it. She was standing during the interchange.
Ms Samways gave evidence that she could not recall precisely what she had said to Ms Scott about the interchange. She had not had any training in customer service before 2 November 2021.
Ms Emily Ryan-Roach who had been employed since May 2021 as an office assistant for LTPO, gave evidence that on the morning of the interchange, she was sitting behind the counter when Mr Ferguson came in, holding a white kettle and walking towards her. She says that he spoke “in a loud voice” and that “I felt shocked by his loud voice”. Ms Samways then walked into the front of the office and stood behind the counter and Mr Ferguson began directing his comments to Ms Samways. Ms Ryan-Roach says that:

“Mr Ferguson was speaking very loudly to Jasmine and Jasmine said to Mr Ferguson ‘Would you like me to go and get Bonnie for you?’ He immediately said “No, I don’t ever want to see or speak with her or Alana again”.

She says that:

“I recall that at this time I immediately felt intimidated. Mr Ferguson’s conduct and manner were scaring to me. He was pacing around the office, walking backwards and forwards and waving his arms around as he was speaking very loudly to Jasmin. Because of this I was scared and I stopped listening to what Mr Ferguson was saying…I do recall however that Mr Ferguson was holding the white plastic kettle and waving it around in the air.”

Ms Emily Ryan-Roach was asked by the Tribunal whether she had had any customer service training before 2 November 2021 and she said that she had not, though she had other experience in dealing with the public. In her view Mr Ferguson put the kettle on the counter, rather than slammed it down, as Ms Samways had stated in her affidavit.

Reporting the Interchange

Ms Samways reported the interchange by telephone to Ms Scott, one of the two the Park Managers, and conveyed that she had felt frightened. Precisely what she said to Ms Scott was not in evidence.
Ms Scott had been employed by the previous management of the park and had only been the Park Co-Manager since May 2021, when LTPO took over the contract to run the day to day operations of the park.
In cross examination Ms Scott said that she was “now” aware of the Guidelines for Park Managers (referred to above) but that she had not had any specific training in relation to those Guidelines at the time of the events the subject of this application, although she had undergone training in relation to ‘managing difficult customers” at some time, she was not sure when.
At the time of these events Ms Scott’s evidence was that she had not had any training in non-discrimination or cross cultural matters. She said that “There was no full induction for us” due to covid-19.
Ms Jansma-Smith stated in cross examination that she was “quite new to management of a park” at the time of the events the subject of this application.
In Ms Jansma-Smith’s affidavit, she stated that on 2 November 2021 her Co-Manager, Ms Scott, told her that there had been an incident in the office between Mr Ferguson and the Office Manager, Jasmin Samways “and she was worried for the safety of Jasmine”. Ms Jansma-Smith says that Ms Scott encouraged her to take what action she thought fit. Ms Scott asked that Ms Jansma-Smith come to the park and investigate the matter and she “suggested that Mr Ferguson may need to leave the holiday park”. Ms Jansma-Smith went to the park and had a conversation with Ms Samways.
When Ms Jansma-Smith arrived at the park, she spoke with Ms Samways. Ms Jansma-Smith says that “as a result of what I was told by Jasmine I made the decision that Mr Ferguson would need to leave the holiday park”. She then rang Ms Simon Warner, the Assistant Manager, and asked him to accompany her to speak personally with Mr Ferguson.

The meeting at the tent

At around 10am on 2 November 2021, Ms Jansma-Smith and Mr Warner went to the tent of the applicant. What occurred there is, in part, contested.
It is not in issue that Ms Jansma-Smith told the applicant that he was required to leave the park. The applicant put it to Ms Jansma-Smith that as she walked towards him she pointed her finger and said words to the effect of:

“You’ve been abusive to my staff”.

Ms Jasma-Smith agreed that she had said that, although it did not appear in her affidavit.

Ms Jansma-Smith said in her affidavit that when she and Mr Warner arrived at Mr Ferguson’s tent, they had a conversation to the following effect:

“I said: Geoffrey we need to have a chat.
He: I’m not ready to talk to you now. I will come and talk to you when I’m ready. I’m packing up now. I’m going to go to another site.
I said: No Geoffrey you are going to leave today. I am not very happy about the way that you have been dealing with my staff”.

She says that:

“It was at this time that I noticed that Mr Ferguson appeared to be getting agitated. By that I mean that I observed he started moving his arms around and raising his voice when he said words to the following effect:
“I will never do work for anyone in this town, aboriginal (sic) people are not treated properly in this town.”

She says that:

“Whilst he was saying this to me Mr Ferguson appeared to be angry and at the end of saying this to me he stepped forward towards me putting his body at less than a metre from me and pointed at me with his finger whilst saying something to me in an aggressive fashion.
I cannot recall what it was that was said because I was shocked by his actions though I do recall that I was immediately scared for my safety.
At this time I turned around and walked away from Mr Ferguson. Simon came with me. Whilst we were walking away, Mr Ferguson continued to yell at me. I cannot recall what was said but I do recall that it was aggressive and I do recall that I was scared for my own safety at this time.”

Mr Ferguson says that he did not “yell” at Ms Jansma-Smith. He recalls only saying to her words to the effect of:

“You’ve crossed the line and you can’t take it back. I would not stay here another night with management with that attitude.”

The respondent contends that the applicant became agitated, stepped forward towards Ms Jansma-Smith and, while doing so, pointed his finger at her face in an aggressive way. He did not refuse to leave. The respondent alleges that he began to shout at Ms Jansma-Smith and Mr Warner, although Mr Warner conceded that Mr Ferguson “might not have been yelling at me”.

Mr Ferguson disagreed with Mr Warner’s statement that he had been ‘agitated’ and ‘aggressive’. He agreed that he was in fact angry “but not demonstrably angry”.
The applicant denied making intimidatory gestures towards Ms Jansma-Smith. He says that between Ms Jansma-Smith and himself were some camping belongings of his, so he could not, realistically have been likely to harm her. That is denied by Ms Jansma-Smith and Mr Warner, who do not admit that there were belongings between Ms Jansma-Smith and Mr Ferguson.
Ms Jansma-Smith says that the applicant “offered her no opportunity” to outline the reasons for the decision asking him to leave. No reasons were given to him apart from the allegation that he had been “abusive to my staff”.
Ms Jansma-Smith was asked by the applicant in cross examination:

Q: Do you think – looking back, do you think you did anything on that day to consider “my wellbeing and safety as a guest”.
A: “He – he was never in danger. In mean, I guess I had responsibility for my other patrons and my staff so my consideration was towards them, the other patrons in the park and my staff, yeah”.

In this response, it is apparent that Ms Jansma-Smith firstly refers to “he” rather than “you”, not directly addressing the applicant. In her response, she also confirms that she considered the welfare of her staff and the welfare of other patrons but did not consider the wellbeing and safety of the applicant as a guest.
The applicant denies pointing his finger at Ms Jansma-Smith and Mr Warner, but both of them say that he did so. Mr Warner recalled “loud yelling” from the applicant and the applicant saying words to the effect of:

“you people are all the same, you people in this town are all the same”.

Mr Warner says that other guests in the park also expressed their concerns to Mr Warner about the conduct of the applicant on that day. There was no specific information about this, other than the generalised comment and Ms Jansma-Smith says that the other unnamed guest just said that Mr Ferguson had been acting “in an agitated manner” that morning.
After this, Ms Jansma-Smith and Mr Warner left the tent-site in a cart.
Ms Jansma-Smith agreed in cross-examination that when she went to the tent of Mr Ferguson that she pointed her finger at Mr Ferguson and said words to the effect that “You have been abusive to my staff”. To the question “could we both have been upset and responded to perceptions of anger from the other?” she agreed. She did not recall the applicant saying words to the effect of “after I’ve moved we can talk, when we are calm”.
Ms Jasma-Smith agreed that she had said to Mr Ferguson words to the effect of “you will leave today or I will call the police”. Those words were not in her statement.
She was of the view that she had adhered to the Guidelines for Managers in her conduct. When asked if she had put herself in the Patron’s shoes (which is something set out in the Guidelines for Park Managers as being necessary when dealing with a complaint) she said “I wasn’t dealing with a complaint, I was dealing with an eviction”. She agreed that in her previous dealings with Mr Ferguson she “had a foundation with him being friendly and polite and able to resolve issues” and their relationship had been “polite and amicable until 2 November”. When asked whether she had a responsibility as a manager to de-escalate conflict she replied that “My responsibility is to protect my staff emotionally and physically”. She then conceded that she also had a responsibility to guests and therefore to Mr Ferguson.
Mr Ferguson asked Ms Jansma-Smith “Do you think your actions protected my health and safety as a guest? Did you do anything to consider my wellbeing?” She replied “He was never in any danger. I had a responsibility to my other patrons and staff.”
Mr Ferguson then continued “So other patrons needing to be protected overrode your responsibility to me” She answered “Yes”. She was then asked: “Did you think of the impact on me of being removed under threat of the police” and responded “No.”
In re-examination she was asked why she had considered the safety of others alone and responded “because there are more staff and other patrons than just one person.” She was asked why she did not get input from Mr Ferguson in the interchange to ask him about what had happened during the interchange before ordering him to leave. She responded “because Mr Ferguson was agitated and I felt like I couldn’t have a proper conversation with him.”
Ms Jansma-Smith also said that the decision to call the police was “partially my decision and partially Bonny Scott’s.”
Ms Scott agreed that at no time on 2 November 2021 did she speak with Mr Ferguson about the interchange or other aspects of what had taken place, even though she knew he was in his tent. Nor did she do so after that date.
At no time did Ms Scott ask Mr Ferguson whether the incident report she submitted to Council late on 2 November 2021 was correct or provide him an opportunity to present his version of events before completing the report and sending it to the Council.
Ms Scott gave evidence that she placed the bar on Mr Ferguson entering other Council-run parks in the local government area of Shoalhaven City Council by providing an electronic note that would come up if he tried to book at any Council-run park in the local government area. Her understanding was that it would then be a matter for the discretion of that park whether they chose to take the booking.
Ms Scott stated that whilst she had read the Guidelines for Park Managers, she had not been provided with any training referable to those Guidelines, had not had a full induction, due to covid, but had had some training in relation to managing ‘difficult customers’. She agreed that she had not had any training in anti-discrimination law or practice and had not had any cross cultural training.
Ms Scott recalled that what Ms Samways had said to her was that Mr Ferguson had come to the office, was upset, waving his arms about, upset at the treatment he had received whilst at the park and she was quite upset by it. She recalled that Ms Samways said that during the interchange Mr Ferguson had referred to having been “made to sleep outside like an Aborigine” and that “the tradie’s discount is more like an Aboriginal discount”. In relation to land, she agreed that he may have been referring to his site booking, rather than his ‘land’ as recorded in her affidavit and in the incident report she submitted to Council.
Ms Scott said that she did not think that Mr Ferguson was a physical threat but that she was “concerned things may escalate” from Ms Samway’s statements to her.

Involvement of Police

When asked by Mr Ferguson in cross examination “what was unlawful that required the police?” Ms Scott responded to the effect that “we wanted their support in being able to apply the eviction in a calm manner” and that police were called “based on you stepping close to Alana”. She agreed that Mr Ferguson was never given an eviction notice or a banning notice.
Ms Jansma-Smith telephoned the police after leaving the tent-site occupied by the applicant. No notice was given to the applicant that the police had been called. The NSW Police Service attended in a vehicle commonly known as “a paddy wagon” (in which anyone arrested can be conveyed immediately in custody to a police station) about 1.5 hours later at the tent site, with Ms Jansma-Smith and Mr Warner accompanying the police in a cart. Police officers alighted from the paddy wagon and spoke to the applicant in front of other people at the park, including guests and staff. This was quite distressing to the applicant.
Although the police attended, ultimately they did not escort the applicant from his tent site. He was packing up anyway (having thought that he would be moving site and then having been told to leave the park altogether). He had some clearing up to do as he had two tents, two kilns and other belongings, as he had been in the park during the covid-19 pandemic for a considerable time. He left some hours later.
Ms Jansma-Smith alleges that as the applicant left the park that evening, at about 8.20pm, she observed that he hit the park’s bins and yelled something indistinguishable but including her name “Alana”. Hitting the bins was denied by the applicant. He says that as far as he recalled, was just emptying the rubbish but says he did mutter something to the effect of:

“You don’t get to thank me and I don’t get to thank you for the stay”.

In cross examination by the applicant, Ms Jansma-Smith stated that she watched CCTV cameras in her office as Mr Ferguson left the park on the evening of 2 November 2021. She said that she heard him say ‘Alana’ but agreed that the CCTV footage has no sound. She was asked whether there is any reason she did not preserve the footage and responded the to the effect that “I was quite new to managing a park and had never been through this. It was a mistake not to keep the footage.”

Incident Report

An incident report was prepared and signed by Ms Scott on 2 November 2021. The form was headed “Incident – Non Injury – Report Form”. The “incident” was stated on the front page of the form to have occurred at 9.10am, witnessed by “Jasmin and Emily” and reported to “Bonnie and Alana”. The form asked “What were the contributing factors (if any)” and the response from Ms Scott was “possibly mental health”. As to the questions “What controls can be put in place to prevent this from happening again?” she responded “Do not allow the guest to stay in the park again”. A narrative report was also attached, stating as follows:

“Approximately 9.10am Geoffrey came into reception to return a kettle that he had been lent by management. Geoffrey was in a state of distress and said that he didn't want us to think he was a thief. He went on to say that we were racist because we booked his site out because it is his land. He said that he received no payment for the mural he painted on the water tank on the outskirts of the park. He was upset that he had to sleep outside like an aboriginal person during his stay and was only offered a cabin for one night (during a storm). He said that the “tradies discount” was more like “the aboriginals discount”. Geoffrey then left the office. Alana and Simon went to speak to Geoffrey on his site at 10 am and have asked him to leave the park due to his aggressive behaviour with park staff. Geoffrey stepped towards Alana and was pointing his finger in her face. Alana told Geoffrey that he must leave the park today and left the situation. Police have been called to the park. Geoffrey is known to them, they will be assisting with his eviction.
We suspect that Geoffrey suffers from Schizophrenia and was having an episode. He will not be permitted to stay at the park again, under any circumstances.
Geoffrey was also driving much too fast during the park (sic) and was asked to slow down”.

The applicant contends that at all times he acted reasonably and was not aggressive, threatening or intimidatory, even though he was upset.
There was no evidence led by the respondent to support the allegation that the applicant may have suffered from schizophrenia or been ‘having an episode’ or that he was ever ‘driving much too fast and was asked to slow down’.
The applicant made a complaint to the Council and argued that he was treated poorly. It is clear during the hearing that he was not told when he made the complaint or at any time before he tried to book into a park later in November 2021, that he had been barred from all council-owned parks in the local government area. Nor was he told that he had a right to appeal against the bar until he had lodged a complaint with Anti-Discrimination NSW, and then only indirectly, via a letter written to Anti-Discrimination NSW, not to him.
The interactions between the Council and the applicant after 2 November 2021 were addressed in the correspondence of both parties with Anti-Discrimination NSW, as part of the investigation of Anti-Discrimination NSW. In addition, the banning issue arises due to the remedies sought by the applicant.
There was some email evidence as to communications after 2 November 2021. On 21 November 2021 Ms Scott sent an email to Ms Rachel Dyer, the responsible office in the Council in the following terms:

“Hi Rachel,
I hope you are well.
Geoffrey called the office this afternoon, he spoke to Emily and asked for a written reason as to why he had been “Blacklisted” and said that all of the other park managers have never heard of someone begin blacklisted before. The phone line cut out before the conversation could be ended and we decided not to take his call again.
He then followed up with the below email.
We have not responded to the email and wanted to pass it on for it to be stored with the other communications from him.”

The email to which Ms Scott referred was as follows:

“Hello
I have made reasonable attempts to communicate with you about your actions and behaviour towards me, as guest of the park.
I have been a paying guest of the park for 50 years.
I have received absolutely no notice of anything…you have taken extreme action, and done so without regard or respect for me and my family, as guests, and as human beings.
In the event that you fail to provide ANY explanation for your actions I have no alternative but to proceed with legal intervention…I am happy for you to respond, but if you don’t do it, there is no alternative but legal action…
I feel absolutely betrayed, disrespected, and heartbroken byt (sic) your actions and absolute racism..iut(sic)is the most appalling racist behaviour I have encountered and cannot go unresolved…
We need to discuss properly, my painting on the watewr (sic) tank…it obviously cannot stay as it is and needs to be dealt with…I am appalled and heartbroken at such gross disrespect and complete disregard for my rights as park guest.
Geoffrey Ferguson.”

Ms Dyer sent an email to Ms Samantha Nielson and Ms Sara McMahon shortly after that stating as follows:

“Hi Ladies
My park managers at Lake Tabourie recently had to call the police to have a guest (Geoffrey Ferguson removed. He was very aggressive, threatening and suffering from what appeared to be a mental health episode.
His behaviour and subsequent interactions have been noted on his records and he(sic) due to his behaviours, he is no longer welcome in our parks. He has continued to harass the staff via text, phone and mail. He has called me several times (calls now blocked) to complain. He was in a very ‘heightened’ state of irritation, yelling and abusing me and accusing me of racism.
We are TRIMMING all his interactions. I left a message with Council’s Aboriginal Officer (I’ve forgotten his correct title and name) but he hasn’t returned my call or email. I was hoping to see if there was any outreach services available for Geoffrey or community connections.
I am bringing this to your attention in case Geoffrey make good his threats to seek legal advise (sic) or make a complaint thorough our formal channels which I encouraged him to do. I have advised the park managers, Bonnie and Alana, not to engage with Geoffrey or respond. They will call the police if he enters the property.”

In responding to the respondent’s version of events before Anti-Discrimination NSW the applicant stated (in part) that:

“Many examples of alleged ‘aggression’ are vague (eg used exaggerated hand gestures”) and detailed description of staff ‘fear’ described in the response is not supported by the records provided. The response account of what occurred suggests, at minimum, a disproportionate response to the alleged ‘incident’.
A concerning feature of the response is that my complaints of racism are characterised as, and offered as examples of, alleged ‘aggression’. Complaints of racism, even if perceived as unfounded, are not acts of aggression. To characterise them and response to as such, in itself suggests racism or victimisation on the part of park staff.
The response provides no explanation as to why it was necessary to call the police noting your instructions that you were packing up your site when they arrived and nothing in the response states that you refused to leave. There is further no recognition in the response that the decision to call the police was a significant escalation on the part of the park staff and management. Having regard to the description of the ‘aggression’ that I purportedly demonstrated this appears to have been an objectively disproportionate and unreasonable response to what the staff face.
There was no reference in the response to the organisational policy that was being followed in relation to:
Being evicted from the park and forced to immediately vacate the park;
Receiving an immediate ongoing bar from accessing the park in the future and
Staff involving police.
However the response acknowledges that they failed to follow procedure in relation to the bar and providing notice of appeal rights.
The available inference on the facts is that they took the actions they did because of my race and my complaints of racism which they perceived as ‘aggressive’…….
No one, managers, council managers or anyone else ever asked me a single question…nobody investigated, spoke with me properly, replied to my reasonable requests for answers…no one asked for or took into account my side of the story before acting against me.
Further, no one informed me of actions they had taken, and therefore exposed me to further humiliation and harm.
It is not true that I was violent or threatening in office on Nov 1, and even if it were true, that in the office, the tone of my voice was serious, in expressing my disappointment at double booking, the grossly disproportionate nature of actions.
Claim I would not move site due to a ‘claim’ it was my land = untrue..my issues were about timing, booking, work and respect and fairness.”

He continues:

“Allanah (sic) made a unilateral choice – with no recourse to common respect or common sense..no regard for protocols which should have seen some sort of conciliatory approach, by management, towards a guest...”
and
”their ACTIONS in EVERY case, in their statements, are based on FEARS, projections, racist stereotyping…imaginings…their imaginings of what ‘might happen’..
“allegations of ‘abusive’ aggressive and threatening behaviour wholly untrue and without foundation in fact or evidence
All based on fears and imaginings..
No attempt to speak with me properly..they SAY this is due to the ‘fears’ fears of what? I have never harmed them..I was very respectful in how I interacted with the staff and management over a long stay as a guest…they had every reason to expect me to speak with them reasonably and properly” and
“It is incumbent on them to SPEAK TO ME PROPERLY…and inform me of action to be taken, and allow me to respond properly…at no stage has this happened.
Not answered as to WHY WERE POLICE BROUGHT TO MY SITE…why were police called??..
So called fears of aboriginal people, are RACIST
What were the protocols”
And
“expressing disappointment about the double booking triggered this racist ‘story’ that geoff (sic) was a disrespectful guest and refused to leave ‘because it was his land’ and was hellbent on retribution for the wrongs of colonialism and likely to randomly attack white women…call the police..call the posse..we having a lynching”
And
“initial report by manager Bonnie Scott does NOT make ANY mention of violence, threats of any nature, and notes I was not asked to leave..it DOES make absurd reference to racist and racist assumptions that obliterates the reality of my being there, as a park guest…it became, after my raising it, purely about me being aboriginal, and my complaint, in itself, described as ‘abusive’.
And
“at no point in the original incident report does it mention the ‘threatening gestures’ or anything illegal”.

NOWHERE in the documents do they explain WHY police were called..”

Council’s liability

LTPO is a contractor, contracted by the Respondent. On 29 November 2021, Ms Rachel Dyer, an employee of the Council signed an email to Mr Ferguson as “Rachel Dyer, Unit Manager, Holiday Haven”, indicating the close connection between the park management and the Council. On that date Ms Dyer suggested that Mr Ferguson could lodge a formal complaint with the Council and he then did so.

Policies

Attached as Annexure “E” to the affidavit of Ms Dyer dated 2 February 2023 is a copy of a document entitled “Guidelines for Park Managers” printed on 23 January 2015. These set out the conduct expected of park employees and provide a yardstick against which the response of park employees, including the park managers, can be assessed and considered.
Clause 1.2 is headed “Description of the Holiday Haven Business” and states (in part) that:

“Holiday Haven Tourist Parks is a group of 12 caravan parks owned by Shoalhaven City Council and operated by private management companies under contract. Holiday Haven is classified as a Category 1 business under the National Competition Guidelines. Category 1 businesses are defined under the Guidelines as generating a gross revenue exceeding $2 million.
Each Holiday Haven Tourist Park is situated on State owned Crown Land. Typically, the Parks are defined areas set aside for caravan and camping purposes within larger reserves dedicated for public access and recreational purposes. Council has been appointed Trustee over these reserves in accordance with the provisions of the Crown Lands Act, 1989..”

Clause 1.3 of the document states (in part) that:

“Each park management team will work and liaise with a number of Council staff, while reporting directly to the Tourist Parks Manager. The key contacts for Park Managers are within the Holiday Haven Administration Office and the Finance and Corporate Service Group..”..”

At the relevant time, that Tourist Parks Manager for the Council was Ms Rachel Dyer.
Clause 2.2 states that:

“Holiday Haven Tourist Parks (HTTP) is a business unit of the Shoalhaven City Council, which manages and operated a total of 12 tourist parks on the South Coast of NSW. All administration activities for all tourist parks are run from the HTTP Administration Office (HH Admin Office) located in …Nowra. In accordance with the Conditions of the Contract, the Tourist Parks Manager, Holiday Haven Tourist Parks, is a Nominated Representative of the Council’s General Manager”. ”

The Schedule to the Contract contained in the Guidelines for Park Management names “Shoalhaven City Council” as the “Park Owner”.
Clause 1.5 states that the contractors are required to

“thoroughly read through the guidelines for park managers (this document) to familiarise yourself with Holiday Haven procedures and relevant Council policies”.

Clause 3.1 states that:

“..the Park Manager and all staff employed by the tourist park shall be: welcoming, polite, diplomatic, efficient, problem solving, communicative, well presented, professional in manner and appearance, proud of the park and surrounding area”.

Clause 3.8.5 states that a park manager

“may cancel a booking if they deem the Patron to be an unsuitable guest” and that such cancellation may occur “during the Patron’s stay”

but

“Before any booking is cancelled the Park Manager staff must notify the Patron of their intention to cancel the booking and their reasons for doing so either by email or phone call and if after a number of reasonable attempts the Patron cannot be contacted before arrival the Park Manger may cancel the booking”.

There is no procedure set out in the Guidelines for direct confrontation of a patron and oral notice of immediate eviction.

Clause 3.14 states that

“Any complaint received at the park, whether verbally or in writing, needs to be recorded in a complaints register at the park. Verbal complaints may be resolved by a simple discussion. Written complaints should be responded to in writing.”

There was no evidence that the complaints made during the interchange were recorded in a complaints register.
Clause 4.7 states that it is:

“important that all Park Managers and park staff attend and complete training as required by Council, Holiday Haven, WorkCover or legislation and regulations. …Training may include….”

A number of examples of courses are listed but none of those listed are anti-discrimination training.

Clause 7.2.3 required Park staff to report to the Tourist Park Manager any:

“accident, illness or injury”.. “so that the Park and Council can deal with the incident as per organisations and legislative procedures including undertaking preventative and remedial actions.”

Part 8 of the document is the Code of Conduct. Clause 8.33 states that whilst carrying out functions staff

“must not conduct yourself in a manner that is likely to bring Holiday Haven, the Council or holders of civil office into disrepute. Specifically, you must not act in a way that: …is an abuse of power or otherwise amounts to misconduct, causes, comprises or involves intimidation, harassment or verbal abuse; causes, comprises or involves discrimination, disadvantage or adverse treatment in relation to employment; causes, comprises or involves prejudice in the provision of a service to the community. …”you must act lawfully, honesty and exercise a reasonable degree of care and diligence in carrying out your functions….You must treat others with respect at all times.”

Clause 8.4, headed “Fairness and Equity” states that:

“You must consider issues consistently, promptly and fairly. You must deal with matters in accordance with well-established procedures, in a non-discriminatory manner…”

Clause 8.5, headed “Harassment and Discrimination” states that staff must not:

“harass, discriminate against, or support others who harass and discriminate against colleagues of members of the public. This includes, but is not limited to harassment and discrimination on the grounds of …race, disability…”

Clause 8.8, headed “Complaint and Difficult Patron Handling Procedures” states that staff must follow the following “Rules”:

●   Treat them with respect
●   Keep calm and cool
●   Do not argue
●   Talk directly to the Patron
●   Maintain eye contact
●   Use appropriate body language
●   Do not patronise
●   Put yourself in the Patron’s shoes
●   Take action to solve the problem
●   Tell them what you can do – not what you can’t do –
●   Follow up to ensure the problem has been rectified”.

Attachment 3 to the Contract, is entitled “Dealing with Difficult Customers in Seven Basic Steps” sets out those steps as being to (as reproduced in part only:

first, assume the customer is telling the truth,
second, to let the customer talk,
third, to be empathic,
fourth, ask relevant questions to clarify your understanding of the facts, resist jumping to conclusions until you are satisfied that you understand the entire situation
fifth, solve the problem. Come to closure that you both feel good about. Remember the customer was telling you the truth. Tell the customer what you will do to rectify the situation. Make the customer feel good about the solution. Do not sound angry with yourself or make the customer feel guilty. …
six, follow up and
seven, take steps to fix the problem(s) that caused the problem in the first place.

Banning order

After the incident, Mr Ferguson was barred from all parks in the local government area, without being informed that this had occurred. He attempted to check in to a park in Ulladulla but was turned away due to the banning order that was noted on the computer system of the park and was told that this applied to every park in the local government area that was run under the auspices of the Council.
Ms Scott said that Mr Ferguson was the first person she knew to have been banned from the park since it had come under the management of LTPO. She agreed that she had issued instructions to staff that if Mr Ferguson came to the site “call the police, lock the doors and retreat”.
Ms Dyer stated in cross examination that she had been in the role of Tourist Parks Manager for the respondent for 2 years but that Council had not offered the relevant staff any cross cultural or discrimination training in that time.
Ms Dyer stated that when Mr Ferguson referred to preserving the CCTV footage in his emails, she had asked about it but by that time it had already been destroyed. She spoke to the managers about it and her evidence was that:

“They said Bonnie said they watched it, there was no sound, it showed Mr Ferguson waving his arms around in the office but they didn’t think there was anything of significance to keep”.

That evidence may be supportive of the applicant’s account of events if there was little shown in the CCTV footage that was particularly noteworthy or egregious about Mr Ferguson’s conduct.

As to the banning, Ms Dyer stated in cross examination that it “wasn’t my decision” and said that “I supported the decision of the park managers”. She also stated that since these events the subject of this application, terminology of the order has been altered from ‘blacklisted’ to ‘banned’ and that park managers can no longer upload their banning orders onto the computer system. Rather, they need to send a submission to the Council as to whether a person should be banned and the guest is invited to provide their perspective on what happened before the Council makes a decision as to whether the person is banned.
Ms Dyer agreed that Mr Ferguson is still banned from all parks in the local government area of Shoalhaven Council. She also stated that previously there was no system of “cleaning” records but now there is. She could only recall about 10 evictions from Council-owned parks in the last 2 years.
After the applicant lodged a complaint with Anti-Discrimination NSW, a letter dated 22 February 2022 was sent to Anti-Discrimination NSW, signed by Juanita Sheldrick, Complaints Officer stating (in part) that:

“Council is of the opinion that Mr Ferguson should have been provided with clearer information about any ongoing bars and been offered a right to review. Council would like to apologise to Mr Ferguson for this oversight and offer him a review of the ongoing bar”.

A letter dated 4 March 2022 from “Rachel Dyer Manager – Tourist Parks” dated 4 March 2022 was also sent to ADNSW in the following terms (in part):

“On the recommendation of park management who were concerned you would be aggressive again if you returned, I decided that you should be barred from our parks. This bar is ongoing.
Our failure to formally advise you of your barring and to provide you with detail of a direct review mechanism has highlighted a procedural failure which I am working with my team to rectify…
Should you wish to have the bar reviewed, you are invited to sent to the following address a written case outlining why you should be allowed to return as a customer to our parks.”

The letter is signed by Ms Dyer. Yet in her affidavit of 2 February 2023, at paragraph 17, she says that:

“I did not make any decision to ban Mr Ferguson from all holiday park sites. …I have spoken to the park managers employed by LTPO Pty Ltd and they have both confirmed to me that they made the decision to place a ban on Mr Ferguson attending all holiday parks after the incident on 2 November 2021.”

The Mural

After the eviction of Mr Ferguson from the park, late on 2 November 2021, he sent a text to the park managers stating, in part: “Obviously you will have to remove the painting from water tank..I expect it to be covered and deleted..you cannot keep my work..it must be painted over, in its entirety”. Consistent with these expressed wishes, the park staff painted over the mural.
He also sent an email to Ms Scott to similar effect, directing that it be removed.
There was a Facebook message from the applicant suggesting that the park employees had destroyed the mural “in a blind racist fury” but this was not the case, rather they painted over it as requested by the applicant. The applicant also complained to the respondent about the mural being removed, but it is clear that, although he may have changed his mind, he issued the directive that in view of what had happened, they had to paint over the mural, which they did.
In her evidence Ms Jansma-Smith confirmed that she had painted over Mr Ferguson’s mural at his request on 8 November 2021.

Conduct as between Ms Dyer and the applicant

Ms Dyer spoke with the applicant several times but became frustrated at their interactions and suggested that he put his complaint in writing, which he did.
Ms Dyer stated in her affidavit and in cross examination that the applicant had been threatening and harassing in his tone in his three telephone conversations with her, but the applicant denies this and there is little objective evidence of it. His emails to Ms Dyer of 11 November 2021 and 24 November 2021 (annexed to her affidavit as Annexures “B” and “C” respectively) were direct but not rude.
Ms Dyer alleges that in conversations with the applicant he was “yelling” at her, but he denies this. She blocked his phone calls after the third one, where he had just tried to check into to another park and been “blacklisted” (as it was then called by the respondent). They disagreed as to whether he complained to her about “racist” actions of the park and threatened legal action or whether he also called her “racist”. She agreed that he never physically threatened her.

CONSIDERATION OF THE EVIDENCE AND FINDINGS

The discrimination claim

As to the booking change, we are satisfied, in light of the booking information sheet tendered in evidence, that there was in fact another booking for that site from 4 November 2021. It was apparently a peaceful, desirable site.
We are not satisfied that there was racial discrimination in the changing of the applicant’s booking per se, as we are satisfied that there had been a prior booking, booked in May 2021.
When the booking was changed, the applicant was only offered one particular site, not directed to a number of sites from which he could choose. There was no evidence as to whether, at that time, there were any other sites available in the park. We cannot therefore make any findings in relation to that matter.
As to the interchange in the office on 2 November 2021, Ms Samways was not experienced in customer service, had not received any training from LTPO or the Council in customer service, anti-discrimination law practice or cross cultural training.
The inexperience and lack of training of Ms Samways may have led to her feeling more overwhelmed by the distress being expressed by the applicant during the interchange than would have been the case if she had received appropriate training to equip her to deal calmly and capably with such distress.
We are not satisfied that anything that either Ms Samways or Ms Ryan-Roach did or said during the interchange constituted racial discrimination.
The responses Ms Samways gave to the applicant were appropriate ones and included confirming that the contractors who pointed out the CCTV to the applicant and told him to “be careful” were not park employees and that if he had experienced racism from anyone “you should have told us”. But, from her affidavit and testimony, she was inwardly quite shaken and rattled by the interchange, as she conveyed when she spoke to her superior, Ms Scott and later Ms Jansma-Smith.
We are not satisfied that the applicant behaved in a way that should have caused a reasonable person with adequate training in the position of Ms Samways or Ms Ryan-Roach to feel frightened, although we accept that Ms Samways did feel frightened and that Mr Ferguson was probably speaking loudly.
Given the concession by Ms Ryan-Roach that the applicant placed the kettle on the counter top rather than slamming it on there and the demonstration of placing the kettle on the counter by Ms Samways, which was far from “slamming” it, we are not satisfied that the way in which the applicant placed the kettle on the counter was intimidatory. We find that he did not ‘slam’ the kettle on the counter.
Ms Samways reaction was, as she apparently conveyed it to Ms Scott, one of fear. We accept that the applicant may have had a loud voice, but note that his voice was fairly loud generally, as was demonstrated during the proceedings. As there was no CCTV footage, we cannot know how loud it was. The applicant denies that he shouted.
The applicant sought that CCTV footage be preserved in relation to what had occurred in the office interchange and, if CCTV footage were held, in relation to what occurred outside his tent (referred to in the email of Ms Dryer 22 December 2021 to Mr Ferguson), but CCTV footage was not provided. In oral evidence Ms Jansma-Smith agreed that failing to retain such footage was an oversight. Ms Dyer stated in cross examination that:

“They said Bonnie say they watched it there was no sound, it showed Mr Ferguson waving his arms around in the office but they didn’t think there was anything significant to keep.”

Given that evidence, we find that it is appropriate to draw a Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference from the failure to retain the footage, namely that retaining the footage would not have assisted the case of the respondent as it did not apparently show the applicant doing anything that could have been construed as inappropriate or intimidatory. Hence, they “didn’t think there was anything significant to keep”.
In all the circumstances, we find that on 2 November 2021 the applicant made a complaint to the office about being required to move early from the site he had been occupying. We accept his evidence that the way in which he complained should not have been intimidatory or frightening to a reasonable person in the position of the office staff.
In so finding, we prefer the evidence of the applicant to that of Ms Samways and Ms Ryan-Roach, both of whom had little training or experience in their positions at the time of these events. We also prefer the evidence of the applicant to that of Ms Samways in view of her concessions in cross examination as to errors in her reporting to Ms Scott about “land” rather than “site”.
Whatever Ms Samways said to Ms Scott and then Ms Jansma-Smith about what had occurred during the interchange contributed to an extreme response of park management after the interchange.
The incident report by Ms Scott of the events of 2 November 2021 contains what Mr Ferguson says are inaccuracies, one stating that Mr Ferguson alleged that “we were racist because we booked “his” site out because it is his land”, which he denies, saying he only referred to the site he was occupying as “his site” with no reference to “his land”.
The incident report of Ms Scott was based on a report to her by Ms Samways and was thus second-hand. The affidavit of Ms Samways states that Mr Ferguson did say “This is my land. This is my country” several times during the interchange, as part of his complaint about his site not being available. In cross examination she conceded that he could have referred to “his site” rather than “his land”. That is a substantial concession.
If it is correct that he only referred to his “site” rather than ”his land”, then the report by Ms Samways to Ms Scott and the report by Ms Scott to the Council (based on what Ms Samways had said to her) is mistaken and wrongly states that claims around Aboriginal land rights were made, when this was not the case.
We prefer the evidence of the applicant as to what he said to Ms Samways, given her concession and the fact that she admits that she was not in a calm frame of mind at the time of the interchange, due to the nature and manner in which the concerns of the applicant were conveyed to her.
We find that in the report to Council Ms Scott misstated the complaint of the applicant about overbooking the site, so that the report of the complaint became a complaint about Aboriginal land rights not being observed. Whilst the site booking is mentioned in the report, it is not the focus of the report. That is a racialized account which does not focus on the reason for the attendance by the applicant at the office, namely the competing booking for the particular site.

There is also a reference to the applicant possibly having schizophrenia and driving too fast, with no evidence presented during the hearing for either remark that was made in the report.
We find that the applicant made a complaint about booking the site he occupied and being required to move from it earlier than he understood it had been booked, not about “his land”. We find that he complained about racial discrimination he alleged he experienced whilst in the park.
We find that in the report made by Ms Scott to Council, the applicant was differentially treated on the ground of his race, in that:

The focus of the report is not on a complaint about a double booking but strongly references the race of the applicant.

There is an inaccurate reference to his complaint as referring to “his land” when his complaint referred to his site booking, so it appears that stereotyped and racially-based assumptions were made about what would be of concern to an Aboriginal person, rather than an accurate recording of his actual complaint, which was about the booking of the site he was occupying and

assertions without any reasonable basis or evidence were made in the incident report as to the applicant possibly having schizophrenia, having ‘an episode’ and ‘driving much too fast’. Each of these assertions could cause a person to be viewed more negatively in the assessment of others than would otherwise be the case. Thus, the applicant is presented in the report as a possibly schizophrenic, fast driving Aboriginal person. His race is clearly highlighted and coupled with other descriptors. The combination of the description of his being Aboriginal with the other two descriptors created a negative impression that he was dangerous and out of control.

For those reasons, it is appropriate to infer (as discussed in Dutt) that at least one of the reasons for the terms of the incident report was the applicant’s race and that the terms of the incident report constituted “less favourable treatment” than a non-Aboriginal person would have been accorded, on the grounds of his race.
The Guidelines for Park Managers set out standards and approaches to be followed by Park Managers and other staff. It is reasonable to regard them as indicating how a hypothetical comparator would be likely to have been treated.
We find that a hypothetical comparator who was not Aboriginal would have been accorded a greater opportunity to provide his own explanation. If the Guidelines for Managers were followed, greater efforts would have been made to listen to the applicant’s perspective and original complaint about the booking and resolve the initial complaint without evicting him from the park.
Ms Scott may not have had any intention to racially discriminate against the applicant in the terms of the report she submitted to Council, but discrimination may occur even without a subjective intention to discriminate: Waters v Public Transport Corporation[1991] HCA 49; 173 CLR 349 at 359, where their Honours held that:

“It would, in our view, significantly impede or hinder the attainment of the objects of the Act if [it] were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those two considerations. A material difference in treatment that is so based sufficiently satisfies the notions of ‘on the ground of’ and ‘by reason of’.

Whilst Waters concerned different legislation, the decision in relation to that issue has been interpreted as applicable to state anti-discrimination legislation, including the Anti-Discrimination Act, NSW (1977): see Shaikh v Commissioner; NSW Fire Brigades (1996) EOC 92-808, 78,986; Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [42]..
In this application as lodged before Anti-Discrimination NSW, the applicant argued that the painting over of the mural was part of the discriminatory and/or victimising conduct that the applicant experienced. In light of his specific request that the mural be painted over, we reject such a suggestion. Given the applicant’s express wishes, it was respectful and reasonable of the park staff to paint over the mural, as he had requested. Doing so does not constitute discrimination or victimisation.
We find that the painting over of the mural was undertaken at the request of the applicant and was not discriminatory.
The applicant complained about Ms Dyer’s conduct. We find that she blocked the calls of the applicant after three calls to her by him, which appears precipitate, even given her allegations that he “yelled” at her on the telephone, which he did not deny. She stated in an email to other Council employees on 21 November 2021 that she had left a message with the Aboriginal Officer of the Council, whose name and correct designation she could not recall at the time she sent her email (a Sunday), but there is no evidence that such a call was in fact followed up by her or by others or that any action eventuated from such a referral. Nor did Ms Dyer contact the applicant directly to advise him of his entitlement to seek a review of the decision to bar him from all caravan parks in the municipality.
We find that there is insufficient evidence to establish that one of the reasons for this response to the complainant by Ms Dyer was the race of the applicant or that the treatment of his complaint was “less favourable” than the treatment accorded to other complainants.
Thus, the complaint of discrimination is established in relation to the contents of the incident report only and is otherwise dismissed.

The victimisation claim

The applicant alleged that what followed after the interchange constituted victimisation for the purposes of s50 of the Act. We find that complaint established for the reasons set out below.
In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [8], the Appeal Panel described four elements that must be satisfied to substantiate a complaint of victimisation: first, the complainant must have done one of the protected activities listed in the legislation; the respondent must have caused the complainant to experience something; the complainant must have suffered some consequential detriment and that detriment must have occurred because the complainant did the protected activities.

The approach to the applicant on 2 November 2021 at the site he occupied arose because he went to the office of the park and made allegations that he had been subject to racial discrimination. He made a number of claims at the office about racial discrimination and, although he did not term it a “complaint”, in substance he made a complaint about various forms of racial discrimination that, in his view, he had experienced whilst at the park. That satisfies the requirement set out in s50(1)( c ) of the Act, that:

It is unlawful for a person ("the discriminator") to subject another person (
"the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has-- …….
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, …

It is apparent that Ms Samways said something to Ms Scott and then to Ms Jansma-Smith about what Mr Ferguson had said and done in the office. Ms Scott spoke to Ms Jansma-Smith about what Ms Samways had said and what should be done next. Ms Scott suggested that this could include the applicant being asked to leave. Whatever Ms Scott said and then Ms Samways said when Ms Jansma-Smith spoke to her, caused Ms Jansma-Smith to decide there and then and without further enquiry, that Mr Ferguson must leave the park that day. She also sought that another park officer who reported to her, Mr Simon Warner, accompany her to the tent site of Mr Ferguson.
When Ms Jansma-Smith arrived at the tent site occupied by Mr Ferguson, neither she nor Mr Warner took any steps to ask Mr Ferguson what had occurred. There were no attempts to ascertain from Mr Ferguson what his concerns were and what had occurred in the office during the interchange.
We find that the failure to ask questions and to listen to the patron/guest and ascertain what the perceived problems were was not in accordance with the Guidelines for Park Management, whether what occurred at the tent was regarded as dealing with a complaint or an eviction.
In substance, on 2 November 2021 at the office, in the interchange, the applicant made a complaint that included a complaint of racial discrimination.
To claim as Ms Jansma-Smith did during cross examination that “I wasn’t dealing with a complaint, I was dealing with an eviction” does not adequately deal with the requirements set out in the Guidelines for Park Managers for dealing with complaints.
These events only became an eviction because Ms Jansma-Smith (and Ms Scott) decided, before speaking with Mr Ferguson, that eviction was the appropriate outcome.
Ms Jansma-Smith had made up her mind that the patron should be evicted prior to even talking with him. There may have been another side to the story. An opportunity for the applicant to be heard regarding what had occurred ought to have been provided. It was up to Ms Jansma-Smith, as one of the two Park Managers, to create an appropriate atmosphere of respect and courtesy to enable the patron’s perspective to be heard.
We accept that the applicant was ‘agitated’ when Ms Jansma-Smith approached his tent with Mr Warner. Ms Jansma-Smith’s statement that because the applicant was “agitated” she “did not have an opportunity” to seek his perspectives is not accepted. She was a Park Manager and had a responsibility to each patron, including the applicant, and ought to have acted in accordance with the Guidelines for dealing with a complaint, however expressed.
There was no evidence of any telephone call, email or text to the applicant in advance of Ms Jansma-Smith and Mr Warner arriving at the tent, for example and no evidence of any invitation to him to come to the office for a discussion, which would have more closely followed the Guidelines, including Clauses 3.1, 3.8.5, 3.14, 8.4, 8.8 and Attachment 3 to the Contract, “Dealing with Difficult Customers”.
Making the decision to evict the applicant before speaking with the applicant involved a decision by Ms Jansma-Smith that the account of Ms Samways as to what had occurred should be accepted, rather than tested. It also involved an assessment that there was a problem so serious that it warranted the applicant’s immediate eviction from the park without further enquiry, although the Guidelines for Park Managers set out a different process to be followed in dealing with complaints.
We find that when Ms Jansma-Smith and Mr Warner went in the cart to the tent of the applicant, Ms Jansma-Smith said words to the effect of “You have been abusing my staff” and pointed at the applicant, whilst walking towards him. That did not set the scene for a respectful enquiry into what had occurred.
Ms Jansma-Smith did not seek the perspective of the applicant regarding what had happened in relation to the booking itself or the interchange. She refused his request to discuss the matter at another time and ordered him to leave. She then called the police to “assist” with this where there was no indication that he was failing to pack his belongings. That was an overreaction to whatever occurred in the interchange and at the tent and constitutes victimisation arising from his complaints of discrimination, made during the interchange.
We find that the applicant did not refuse to leave the park but, on the contrary, said words to the effect that the park management had “overstepped” and that he “did not want to stay a moment longer if the management had that attitude” or words to that effect.
The decision made by Ms Jansma-Smith before she even went to the tent of the applicant that he needed to leave the park that day was a decision that directly arose from his complaint of discrimination at the office on 2 November and was one of the reasons for her actions. His alleged conduct in making the complaint may have been another reason, but so long as the making of the complaint of discrimination was at least one of the reasons for her conduct, that is sufficient to engage the victimisation provisions of the Act: Nicholls and Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [36] – [37].
The requirement that the applicant leave the park that day was a detriment, as he intended and was booked to stay beyond 5 November 2021.
The manner in which he was told to leave was also a detriment: it was done very publicly, which was humiliating and undertaken without an attempt to ascertain what had taken place from the perspective of the patron.
Calling the police and their very public attendance at the park with a paddy wagon was also humiliating and a detriment within the terms of the victimisation provisions of the Act.
We find that ongoing barring from all parks in the local government area without any notice and indefinitely is disproportionately harsh also constitutes victimisation. It occurred because the applicant complained about the changes in his booking and other discriminatory treatment that he alleged he experienced at the park (not by park employees, but casual discrimination from a contractor, as Ms Samways explained to him).
Mr Ferguson states that it was humiliating to him to attempt to check in to the Ulladulla Park only to be told of the barring. It appears that he may have also checked with other parks, in light of the email from Ms Bonnie Scott to Ms Dyer dated 21 November 2021, which states, (in part):

“Geoffrey called the office this afternoon, he spoke to Emily and asked for a written reason why he had been “Blacklisted” and said that all of the other park managers have never heard of someone being blacklisted before”.

Ms Dyer confirmed in cross examination that she received that email. She also confirmed that she received a phone call after the applicant had tried to check in to the park at Ulladulla indicating that he had been refused admission.
We are satisfied that the applicant was victimised for his representations during the interchange, during which he raised matters which, in his view, constituted racial discrimination. It is not to the point that we have not ultimately found that there was racial discrimination in notification to the applicant that the site he was occupying was booked by another patron from a particular date or in the interchange between the applicant and Ms Samways.
We are satisfied that the applicant has suffered a detriment arising from the victimisation, namely:

being exposed to public humiliation in having allegations made outside his tent and in front of other people;

being required to leave without further notice, with no real opportunity to provide “his side” of the story of what had occurred in the interchange;

the calling of the police when there was no evidence that he would not leave and due to fear of “what may happen” rather than any illegality having occurred,

police attending with a paddy wagon and speaking with the applicant in front of others;

in the terms of the report of the incident made to the respondent and

the banning order, imposed without notice, without an opportunity for the applicant to make representations and applying not only at the park but in all parks in the local government area on an on-going basis.

Council’s liability

LTPO is a contractor, contracted by the Respondent. On 29 November 2021, Ms Rachel Dyer, an employee of the Council signed an email to Mr Ferguson as “Rachel Dyer, Unit Manager, Holiday Haven”, indicating the close connection between the park management and the Council. On that date Ms Dyer suggested that Mr Ferguson could lodge a formal complaint with the Council and he then did so. Ms Dyer clearly liaised closely with the Park Managers and reported within Council concerning what had occurred.
S53 of the Act provides as follows:

53 Liability of principals and employers
(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.
(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

As stated by (then) Chief Justice Spigelman in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at [88], albeit dealing with the definition of ‘employee’, the breadth of s53 in considering who is an ‘employee’ for the purposes of the Act should not be unduly narrowly construed. ‘Employment’ is defined to include ‘work under a contract of services’ as set out in s4 of the Act.
In this case, the contract between the LPTO and the Council provided that the contractor ran the park on its behalf, making day to day management decisions but in accordance with guidelines set out by the Council and subject to reporting to Council any incidents that occurred and liaising with Council as to how to deal with them. Council also provided the training of those employed to run the park.
In those circumstances, it is appropriate to find that those involved in this matter were either in a relationship of employment or agency with the respondent sufficient to enliven the operation of s53 of the Act. It is not necessary to determine whether the relationship was one of employment or agency.
In this case, we find that whilst the respondent had provided a copy of the relevant Guidelines to Park Managers, at the time of the events the subject of this application, the respondent had not conducted any anti-discrimination training with any of those employed by LPTO and involved in these incidents, namely Ms Samways, Ms Ryan-Roach, Ms Jansma-Smith, Mr Warner or Ms Scott. Had it done so, there could have been different outcomes in this matter.
We find that taking ‘reasonable steps’ for the purposes of s53 included conducting anti-discrimination training for all those engaged in the management of a facility serving the public under the auspices of the respondent.
Simply providing a copy of Guidelines to those working in the park was insufficient to discharge the obligations of the respondent pursuant to s53. Active training of staff was necessary, so that they had sufficient understanding of what polices and guidelines meant in practice to recognise and deal with issues that may constitute discrimination and/or victimisation, as they arose in the park: D v Berkeley Challenge Pty Ltd [2001] NSWADT 92; Caton v Richmond Club Ltd [2003] NSWADT 202; Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143, [100] – [103]; Richardson v Oracle Corporation Australia Pty Ltd [2013] FCA 102.

Accordingly, the respondent is liable under s53 for the actions of those persons as it failed to take reasonable steps to prevent those managing the park on behalf of the respondent from contravening the Act, by providing proper training in acting in a non-discriminatory manner.
The respondent is also liable for the banning of the applicant from all parks owned by the Council in the municipality, with no time limit. Ms Dyer says in her affidavit that she “supported” the park managers in that decision. The improved procedures of the respondent after this incident are noted.

Remedies

The powers of the Tribunal in relation to remedies are set out in s108 of the Act, reproduced below, but omitting those parts of the section that are clearly not engaged in this matter.

108 Order or other decision of Tribunal
(1) In proceedings relating to a complaint, the Tribunal may--
(a) dismiss the complaint in whole or in part, or
(b) find the complaint substantiated in whole or in part.
(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following--
(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,
(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,
(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,
(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), ….
(g) decline to take any further action in the matter.
(3) An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate.
……
(7) If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.

Considerable time has passed since the events the subject of these proceedings took place.
The applicant has sought compensation. We find that the applicant has suffered detriment and non-economic loss, significant distress, hurt, humiliation and damage to his reputation from the initial report and banning order and inability to access holiday parks operated on land owned by the respondent since the banning order. The detriment and loss was suffered as a result of the discrimination and victimisation that we have found occurred in this case. As stated by Wilcox J in Hall vA&A Sheiban Pty Ltd [1989] FCA 72; 20 FCR 217 at 256:

“..damages for..injury to feelings, distress, humiliation and the effect on the claimant’s relationships with other people are not susceptible of mathematical calculation…[t]o ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit injustice upon a claimant by failing to grant relief in respect of a proven item of damage”.

Damages under the Act are compensatory, rather than punitive: Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24 at [3]. In this case we have had regard to statements quoted above from the applicant and his evidence generally and find that he has suffered loss and damage as a result of the discrimination and victimisation he experienced. We award to the applicant compensation for non-economic loss for discrimination and victimisation arising from:

the failure to provide the applicant with an opportunity to express his views before imposing a decision (made before speaking with him) that he leave the park that day;

advising the applicant that he must leave the park in a public and therefore humiliating way;

calling the police in circumstances where the applicant was not refusing to leave;

having the police attend the tent site of the applicant with a paddy wagon and speak to him in front of other people;

sending a report to the respondent that placed considerable emphasis on his Aboriginality and included unsubstantiated statements as to the applicant suffering a mental illness, schizophrenia, and alleging that he had been driving too fast;

the continuing bar on the applicant from booking into any park owned and auspiced by the respondent in the municipality from 2 November 2021 to date without providing timely advice that he had a right to a review of the bar.

As has been stated in previous cases, the proper assessment of compensation for non-economic loss is a matter of discretion, weighing the evidence. Amounts awarded in similar cases involving alleged racial discrimination, including matters such as Russell v Commissioner of Police, NSW Police Service & Ors [2001] NSWADT 32; Grogan and Ors v First Rate Leisure Pty Limited and Ors [2007] NSWADT 294; ZG v Director General, NSW Department of Education and Training [2006] NSWADT 344 ;Tupou v Scruffy Murphy’s Pty Ltd [2007] NSWADT 192; Cook v Scruffy Murphy’s Pty Ltd [2007] NSWADT 129 and Masters v Reserve Hotels Pty Ltd atf the NBF Trust [2020] NSWCATAD 115,
It is our view that an appropriate award of compensation should be made in respect of the finding of unlawful racial discrimination and the finding of unlawful victimisation.
Having regard to the evidence in this case and amounts awarded in similar cases we award compensation in the sum of $5,000.00 in respect of the finding of unlawful racial discrimination and $5,000.00 in relation to the claim of unlawful victimisation $10,000 to compensate the applicant for mental distress arising from discrimination and the victimisation that he experienced after making the complaints of discrimination.
In arriving at that figure, we take into account the behaviour of the applicant during these events, which was confrontational, although we cannot be satisfied as to matters such as how loud his voice was at different times.
We order that an apology be furnished to the applicant, in such terms as the respondent sees fit, within 28 days.
Considering the evidence of the applicant, which was not contradicted, that his family has had many trips to Lake Tabourie and stayed in that particular park over a 50 year period, apparently without incident, it appears excessive and disproportionate to bar him from registering at any park in the municipality run under the auspices of the Council on an on-going basis.
We order that the respondent take all necessary steps to review the bar on the applicant attending at and/or staying at any of the parks under the control of the respondent, including Lake Tabourie. This review shall be conducted pursuant to the rules and procedures now in place, as outlined by Ms Dyer during cross examination and referred to above in this decision.
We also order that in the next 12 months, the respondent undertake anti-discrimination training for all personnel working in holiday parks operating on land owned by the respondent.
We have considered the other orders sought by the applicant. We determine that the orders made are appropriate and sufficient and decline to make the other orders sought.

Orders

The applicant’s claim of racial discrimination is substantiated in part.
The remainder of the applicant’s complaint of racial discrimination is dismissed.
The applicant’s complaint of victimisation is substantiated.
An apology be furnished to the applicant, in such terms as the respondent sees fit, within 28 days of the date of publication of these reasons for decision.
Damages by way of compensation in the sum of $10,000 is to be paid to the applicant within 28 days of the date of publication of this decision.
The respondent shall take all necessary steps to review the bar on the applicant attending at and/or staying at any of the parks under the control of the respondent, including Lake Tabourie. This review shall be conducted pursuant to the rules and procedures now put in place by the respondent.
Within 12 months of the date of publication of this decision, the respondent shall undertake anti-discrimination training for all personnel working in holiday parks operating on land owned by the respondent.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 24 October 2023

Medium Neutral Citation:	Ferguson v Shoalhaven City Council [2023] NSWCATAD 276
Hearing dates:	8 February 2023, 30 March 2023, 1 June 2023
Date of orders:	2 October 2023
Decision date:	24 October 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Tibbey Senior Member J Herberte, General Member
Decision:	1. The applicant’s claim of racial discrimination is substantiated in part. 2. The remainder of the applicant’s complaint of racial discrimination is dismissed. 3. The applicant’s complaint of victimisation is substantiated. 4. An apology be furnished to the applicant, in such terms as the respondent sees fit, within 28 days of the date of publication of these reasons for decision. 5. Damages by way of compensation in the sum of $10,000 is to be paid to the applicant within 28 days of the date of publication of this decision. 6. The respondent shall take all necessary steps to review the bar on the applicant attending at and/or staying at any of the parks under the control of the respondent, including Lake Tabourie. This review shall be conducted pursuant to the rules and procedures now put in place by the respondent. 7. Within 12 months of the date of publication of this decision, the respondent shall undertake anti-discrimination training for all personnel working in holiday parks operating on land owned by the respondent.
Catchwords:	HUMAN RIGHTS – Racial Discrimination - Victimisation
Legislation Cited:	Anti-Discrimination Act, 1977 (NSW)
Cases Cited:	Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143 Bassili v The Star Pty Ltd [2016] NSWCATAD 167 Commission of Corrective Services v Aldridge [2000] NSWADTAP5; Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24; Caton v Richmond Club Ltd [2003] NSWADT 202; Commission of Corrective Services v Aldridge [2000] NSWADTAP5; Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Cook v Scruffy Murphy’s Pty Ltd [2007] NSWADT 129 D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Grass v Voyager Tennis Pty Ltd [2023] NSWCATAP 168 Grogan and Ors v First Rate Leisure Pty Limited and Ors [2007] NSWADT 294; Hall v A&A Sheiban Pty Ltd [1989] FCA 72; 20 FCR 217 Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 Jones v Dunkel [1959] HCA 8; 101 CLR 298
Texts Cited:	Rees, Rice and Allen, Australian Anti-Discrimination Law, Federation Press, Third Edition 2018 Principal judgment
Category:	Principal judgment
Parties:	Geoffrey Ferguson (Applicant) Shoalhaven City Council (Respondent)
Representation:	Counsel: S McIntosh (Respondent) Solicitors: Applicant (Self-represented) Marsdens Law Group (Respondent)
File Number(s):	2022/00167304
Publication restriction:	Nil