Flanagan v Humana Pty Ltd
[2017] TASSC 50
•4 July 2017
[2017] TASSC 50
COURT: SUPREME COURT OF TASMANIA
CITATION: Flanagan v Humana Pty Ltd [2017] TASSC 50
PARTIES: FLANAGAN, Dean
v
Humana Pty Ltd, KF Tas (Property Services) Pty Ltd, Hunt Security Services
FILE NO: 811/2014
DELIVERED ON: 4 July 2017
DELIVERED AT: Hobart
HEARING DATES: 13, 28 August 2015; 27 June 2017
JUDGMENT OF: Wood J
CATCHWORDS:
Human Rights – Discrimination – Grounds of discrimination – Disability or impairment – Generally – Meaning of ‘disability’ – Appellant with acquired brain injury banned from shopping centre for swearing – No causal nexus between his disability and swearing.
Anti-Discrimination Act 1998 (Tas), ss 3, 14(2), 15, 16(k), 99.
Purvis v New South Wales [2003] HCA 62, 217 CLR 92; Nestle Australia Limited v Equal Opportunity Board [1990] VR 805; Cain v The Australian Red Cross Society [2009] TASADT 03, referred to.
Aust Dig Human Rights [18]
Human Rights – Tribunals, commissions and other authorities – Tasmania – Anti-Discrimination Tribunal –Sufficiency of reasons – Lack of reasons with respect to indirect discrimination and preference for evidence of respondents’ witnesses – No miscarriage of justice.
Robinson v Chatters [2010] TASSC 66, Phillips v Arnold [2009] TASSC 43, W v Watson [2002] TASSC 38, 19 Tas R 21; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, 66 NSWLR 186, referred to.
Aust Dig Human Rights [53]
REPRESENTATION:
Counsel:
Appellant: N Messel
Respondents: D Morris; F Cangelosi
Solicitors:
Appellant: Slater and Gordon Lawyers
Respondents: Simmons Wolfhagen
Judgment Number: [2017] TASSC 50
Number of paragraphs: 76
Serial No 50/2017
File No 811/2014
DEAN FLANAGAN v HUMANA PTY LTD, KF TAS (PROPERTY SERVICES) PTY LTD, HUNT SECURITY SERVICES
REASONS FOR JUDGMENT WOOD J
4 July 2017
A complaint of discrimination
In October 2010, Dean Flanagan, the appellant, made a complaint alleging discrimination and inciting hatred on the basis of a disability. He named the Claremont Village Shopping Centre, Nextra Newsagency, Hunt Security and Knight Frank Tasmania as entities that had discriminated against him. In relation to the Claremont Village Shopping Centre, the relevant legal entity is Humana Pty Ltd, and in relation to Knight Frank Tasmania, the relevant legal entity is KF TAS (Property Services) Pty Ltd. To reflect this, consent orders amending the notice of appeal have been made. The complaint set out a narrative of events that occurred in October 2010. In brief, there was an incident which resulted in the appellant being banned for swearing from the Claremont Village Shopping Centre. He had also been assaulted by a security guard and forcibly removed from the Centre. Later, he met with management of the Centre, and after he provided proof that he had an acquired brain injury, the ban was revoked. When he entered the Centre after that meeting, there was another incident and the ban was reinstated.
The complaint was received and investigated by the Anti-Discrimination Commission. In October 2011 it was referred to the Tribunal for inquiry. The referral report identified issues for determination by the Tribunal such as whether Claremont Village Shopping Centre, Knight Frank Tasmania and Hunt Security Services discriminated against the appellant, and if so, whether it was on the basis of disability. The referral report set out agreed facts and the facts to be established at inquiry. One of them was characterised as whether or not the appellant had been directly or indirectly discriminated against on the ground of disability by being banned from the Claremont Village Shopping Centre.
The inquiry was heard by Tribunal member, Ms A Mills. Subsequently, the complaint was dismissed and reasons in writing were provided to the parties.
The appeal
The appellant appeals the decision on five grounds:
"1The Tribunal failed to correctly identify the Appellant's disability for the purposes of section 16 of the Anti-Discrimination Act 1998 in that it only identified his physical disability and failed to consider his disability within the extended meaning of section 3 of Anti-Discrimination Act 1998 and in doing so based began [sic] its inquiry without recourse to the Appellant's disability within the meaning of the Anti-Discrimination Act 1998;
2The Tribunal erred in that it applied the incorrect legal test to determine direct discrimination pursuant to section 14 of the Anti-Discrimination Act 1998;
3The Tribunal erred in failing to make a determination on indirect discrimination pursuant to section 15 of the Anti-Discrimination Act 1998;
4The Tribunal erred in failing to provide any, or any adequate, reasons for preferring the evidence of the Respondent's witnesses to that of the Appellant;
5The Tribunal erred in failing to provide any or any adequate reasons as to why the Appellant had failed to establish discrimination within the meaning of the Anti-Discrimination Act 1998, and in particular failed to provide reasons as to why each instance of potential discrimination against the Appellant by the Respondents did or did not occur, namely:
aAs a result of the initial ban on 5 October 2010;
bAs a result of the conditions imposed upon the Appellant following the meeting on 6 October 2010 lifting the ban;
cAs a result of the reinstatement of the ban following the Appellant's alleged behaviour on 6 or 7 October 2010; and
dAs a result of the zero-tolerance policy of the first and secondnamed respondents as instituted by the thirdnamed respondent."
It can be seen that the grounds focus on the appellant's disability and the reasoning of the Tribunal member with regard to the disability, and the adequacy of the reasons in terms of findings that were made. It is convenient at this point to provide an overview of the evidence and the Tribunal member's reasons.
The evidence at inquiry
The evidence included the appellant's oral evidence at the inquiry and his original complaint which was part of the documents before the Tribunal member.
On 5 October 2010 the appellant was at the Claremont Village Shopping Centre. He spoke to a female thinking he knew her and then, realising the person he had approached was not someone he knew, he said, "Shit I've got the wrong person." The woman was at a photo booth but there was no one else around except the photographer. The photographer "attacked" the appellant, complaining that he had used swear words around children. The appellant was approached by a security guard working for Hunt Security Services and was asked to leave because he had sworn. At that time, Hunt Security Services provided security services for the Claremont Village Shopping Centre and reported to the managers of the Centre, Knight Frank Tasmania. The appellant left the Centre.
A day or two later the appellant returned to the Centre and a security guard spoke to the appellant and said words to the effect that he believed the appellant had been barred from entering the Centre for two years. The appellant rang Peter Day of Knight Frank Tasmania, and Mr Day told him that he was barred. The appellant was handed two documents by a security guard. The appellant screwed those up and threw them to the ground. He was physically attacked by the security guard. Another man also assaulted him, and together they escorted him out of the Centre.
That day the appellant went to Knight Frank's offices to discuss what had happened and spoke to Garry Hunt of Hunt Security Services and Mr Day. He told them he had been assaulted by a security guard and explained what had happened. The appellant produced an identification card from the Brain Injury Association of Tasmania which noted that he had an acquired brain injury. The banning notice was revoked and it was agreed he would be reinstated access to the Centre.
A few days later, the appellant returned to the Centre and a security guard approached him and handed him another notice banning him from entry to the Centre for six months.
It was the respondents' case that on 5 October the appellant had been swearing at people, including a photographer at a photo booth taking photos of children. A security officer, Chris Rowland, attended and the appellant continued to swear. Mr Rowland asked him to leave the Centre and called the police. Mr Rowland did not assault the appellant. Mr Day was informed about the incident by Mr Hunt and made the decision to exclude the appellant. The appellant was banned the same day. On 6 October the appellant returned to the Centre and a security officer told him he had been banned. He left and returned again later the same day, at which time the security guard tried to hand the appellant his cancellation of right to entry notification form. Later the same day, the appellant attended a meeting at Knight Frank's offices and the appellant showed Mr Day his card from the Brain Injury Association. The ban was revoked, and while it was agreed he would be reinstated access, it was on conditions that he was not to approach tenants, he was to do his shopping and leave, if he was directed by security staff to leave the Centre he must do so, and there was to be no swearing. If he breached those conditions he would be banned. The appellant agreed with those conditions. It was the respondents' case that that day or the following day the appellant returned to the Centre and attended various shops in the Centre and accused the owners of "dobbing him in" to Knight Frank in relation to the incidents that led to the ban. The respondents' case was that Mr Day had received three phone calls from tenants complaining that the appellant had been abusing them and threatening them, saying that they had dobbed him in about a previous incident or previous issues. Mr Day then decided that the banning notice should be reissued. He contacted Hunt Security Services and advised them that the appellant should be served with a ban notice for six months. A notification of cancellation of right of entry was issued on 12 October for six months. Later, that period was extended as a consequence of breaches of that notice.
At the inquiry the respondents were legally represented. The appellant was not represented by a legal practitioner but had the assistance of an advocate, Mr Harnwell, of Speak Out Advocacy, a disability advocacy organisation. At the conclusion of the inquiry, a timetable was set for written submissions to be exchanged and provided to the Tribunal.
The Tribunal member found that the complaint was not substantiated, and written reasons for her decision were delivered to the parties. The reasons began with a summary of the evidence. The appellant's evidence was set out in some detail, and there was also reference to the evidence of a witness, Adrian Valentine, called by the appellant, and the documents produced by the appellant as part of his case. There was a summary of the respondents' evidence, including witnesses: Garry Hunt, Peter Day, and security guard, Chris Rowland. In the course of setting out the evidence the Tribunal member noted that she accepted the evidence of Mr Hunt as an "open and honest witness", and Mr Rowland and Mr Day as "witnesses of the truth". The Tribunal member then set out the issues that fell to be determined and her conclusions. Her reasons with respect to the issue of direct discrimination on the basis of disability, and conclusion with respect to discrimination, were in the following terms:
"Issues to be Determined
54Was the complainant subject to discrimination against him on the basis of disability pursuant to s14(2) of the [Anti-Discrimination] Act [(1998) (Tas)].
55 Section 14(2) of the Act states:
'Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic.'
56The complainant must prove that he was treated less favourably because of his disability than a person without that attribute.
57This involves a comparison as described by Gray J in the decision of Zhang v University of Tasmania & Ors [2009] FCASC 35 at (29) as follows:
'That case stands as authority for the proposition that in a case involving a disability affecting the behaviour of a person, the property comparator is a person with the same behavioural characteristics, although without the disability…'
The case referred to in the decision of Zhang is the High Court decision of Purvis v State of NSW (Department of Education & Training & Anor [2003] 217 CLR 92.
58In this case it is for the complainant to show that the respondents treated him less favourably in respect of his behaviour at the shopping centre because his disability when compared to a person without a disability who exhibited the same behaviour as the complainant.
Conclusion in Respect to Discrimination
59The Tribunal finds that the complainant did use inappropriate language, namely swearing in a tone which was intimidating to a person at the Claremont Village on 5 October 2010 and objected to being asked to leave the premises.
60The Tribunal finds that on 6 October 2010 the complainant had an altercation with a security guard from Hunt Security Services at the shopping centre which involved aggressive pushing behaviour by the complainant.
61The Tribunal finds that on the 6 or 7 October 2010 the complainant was abusive to several of the shop operators at the shopping centre accusing them of 'dobbing him in'.
62The Tribunal finds that the administrators of the shopping centre, Knight Frank, had instructed Hunt Security Service that a zero tolerance standard was to be imposed for inappropriate behaviour in the shopping centre, including swearing and intimidating behaviour.
63It is clear from the evidence that persons who did not have a disability who exhibited inappropriate behaviour including swearing and intimidating behaviour had been excluded from the centre both before and after the exclusion imposed on the complainant.
64It is relevant that Mr Day initially made the decision to bar the complainant from access to the shopping centre without any knowledge of the complainant's disability. Further, that he rescinded the notice on becoming aware of the complainant's disability and the agreement that the inappropriate behaviour would not reoccur but then imposed the exclusion notices and bans on receiving further complaints of inappropriate behaviour.
65There is no evidence that Hunt Security Services or Knight Frank treated the complainant in respect of his behaviour in the shopping centre any less favourably than they would have a person who undertook the same behaviour but who did not have a disability.
66The Tribunal prefers the evidence of Mr Hunt and Mr Day as being more credible and accurate where there is a conflict with that evidence and that of the complainant.
67The complainant has failed to establish any direct discrimination breach of the Act.
68The second issue for determination is did either of the respondents engage in conduct by a public act inciting hatred towards, serious contempt for or severe ridicule of the complainant on the grounds of his disability.
69Having regard to the findings of the Tribunal with respect to the issue of discrimination, the Tribunal finds that there is no evidence to substantiate a claim of inciting hatred pursuant to s19 of the Act. The respondents acted with the purpose of ensuring no anti-social behaviour occurred within the shopping centre and took the same action towards persons without a disability who displayed anti-social behaviour as they did to the complainant when he showed anti-social behaviour.
70The complainant did not argue at the conclusion of his case that the conduct of the respondents amounted to inciting hatred pursuant to the Act."
Ground 1 – failure to correctly identify the disability
The Tribunal member stated in her decision: "It was accepted that the complainant has an acquired brain injury. The Tribunal finds on the basis of the evidence submitted by the complainant that this represents a disability for the purpose of the Act."
It is evident from the passages set out above, in particular [65], that the Tribunal member found that the reason why the appellant was banned from the Centre was his inappropriate behaviour involving swearing and intimidating behaviour.
On appeal, the argument for the appellant was that the approach taken by the Tribunal in characterising the disability was unduly restrictive. It was contended that the Tribunal should have treated behaviours such as an inability to refrain from swearing and lowered inhibition as part of the appellant's disability. It was argued that if the Tribunal had taken that approach, a finding of direct discrimination would have been made.
In order to establish direct or indirect discrimination, the impugned conduct must be on the basis of, or have a differential impact on a person because of, a prescribed attribute. Section 16 of the Anti-Discrimination Act 1998 ("the Act") sets out prescribed attributes, including that of disability (s 16(k)). Section 3 of the Act defines "disability" and relevantly, part of the definition includes the following:
"disability means any of the following that presently exists, previously existed but no longer exists, may exist in the future, whether or not arising from an illness, disease or injury or from a condition subsisting at birth:
(a) a total or partial loss of the person's bodily or mental functions;
(b) total or partial loss of a part of the body;
(c)the presence in the body of organisms causing or capable of causing disease or illness;
(d) the malfunction, malformation or disfigurement of a part of a person's body;
(e)disorder, malformation, malfunction or disfigurement that results in the person learning differently from a person without the disorder, malformation, malfunction or disfigurement;
(f)a disorder, illness or disease that affects a person's thought processes, perceptions of reality, emotions or judgment or that results in disturbed behaviour;
(g) reliance on a guide-dog, wheelchair or other remedial or therapeutic device;".
It was argued that under the Act the term "disability" has an expansive meaning and includes the behaviour associated with that disability. It was submitted that in this case the appellant's disability encompassed an inability to refrain from swearing, disinhibition and poor executive functioning. It was argued that the High Court decision of Purvis v New South Wales [2003] HCA 62, 217 CLR 92 provides support for an expansive approach.
In Purvis, consideration was given to a similar definition of "disability". It was noted that the term "disability" is defined by reference to cause (disorder, illness or disease) and effect. The judgment of Gummow, Hayne and Heydon JJ cautioned against focussing on the cause of behaviour, to the exclusion of the resulting behaviour. It was said that such an approach would confine the operation of the Act by excluding from consideration that attribute of the disabled person (in that case, disturbed behaviour), which makes that person "different" in the eyes of others (at [212]).
In this case, it was submitted for the respondents that there was a lack of evidence to support a finding that as a result of the appellant's acquired brain injury he was disinhibited or had poor impulse control such that he had difficulty controlling his responses, or difficulty refraining from swearing. It was also submitted that the finding of the Tribunal was that the reason for reimposing a ban was due to threats that the appellant made for having "dobbed" him in, and there was no link between his threats and accusatory behaviour and his acquired brain injury.
A closer consideration of the evidence is necessary, and in particular the medical evidence, focussing on a nexus between the appellant's behaviour of swearing and his acquired brain injury. The evidence relating to this nexus is as follows:
· The identification card produced by the appellant from the Brain Injury Association of Tasmania Inc which contained the following information on the back of the card:
"I have an acquired brain injury and may need assistance due to:
Difficulty with my speech.
Memory and walking problems.Communication problems – due to hard to communicate point of view. Swears a lot."
· A letter from Dr Anthony Hodge dated 8 July 2013 as follows:
"re: Mr Dean Flanagan
Dear Sir/Madam,
This letter is to confirm that my patient Dean Flanagan, age 45 yrs, suffered a Severe Head Injury which has left him with an Acquired Brain Injury and a right sided hemiplegia in 2002
He has been severely discriminated against and found it difficult to live as a Disabled man after [sic] was banned for 2.5 years from his local shopping centre.
This and his Anti Discrimination Hearing have stressed him severely over the last few years."
· A letter from Dr Mark Slatyer (undated) as follows:
"To Whom it May Concern
RE: Dean Alex Flanagan …
Mr Flannigan [sic] has sustained a number of traumatic brain injuries, this means that he has ongoing cognitive deficits. It is very commonly following multiple head injuries for patients to have difficulty with what is known as executive function with marked deficits in planning, attention, verbal recall, impulse control and problem solving. This may explain but not excuse some of Mr Flanagan's actions… ."
· The appellant's evidence at the inquiry during cross-examination that he tried not to swear in front of "women … children, in general". It was put to him that he was able to control when and where he swore and he said, "Not all the time no." He further responded that it would depend on his stress level.
Notably, the appellant did not give evidence that he was stressed at the time he swore on 5 October. It was evident from the appellant's account that his behaviour of swearing on 5 October was precipitated by a minor matter of a mistake he had made with respect to a person's identity.
I note that there was no evidence of the source or sources of the information on the back of the appellant's identification card. It is expressed in the first person and presumably it is the appellant's perception of his difficulties. The proposition "Swears a lot" is a bald statement of fact, and viewed in its most favourable light, it does not ascribe the swearing to the appellant's acquired brain injury. Dr Hodge's letter is directed at the consequences of the ban from the Centre and says nothing about how the appellant's behaviour is affected by his acquired brain injury. Dr Slatyer's letter identifies cognitive deficits that the appellant has as a result of his injury resulting in difficulty with executive functioning. Relevantly, the letter identifies impulse control but does not take it any further, and does not mention an inability to refrain from swearing, or difficulty in controlling his swearing as a manifestation of his disability. The letter contains the qualification that "This may explain … some of Mr Flanagan's actions" (my emphasis).
I reject the appellant's submission that a compelling inference of the evidence is that swearing was part of the his disability. The mere coinciding of a disability and behaviour which might be associated with poor impulse control, and which could be the product of an acquired brain injury, is not sufficient. The appellant's propensity to swear may have been pre-existing and his capacity to control his swearing may not have been diminished by his injury. Before behaviour is to be regarded as part of the disability, there must be a causal nexus between the disability and the behaviour. The definition in the Act requires this causal link. This kind of behaviour, like other anti-social behaviour, such as aggression, is relatively common in the general population and, in any individual case, may be the product of any one or more of a multiplicity of factors such as personality, social influences and poor modelling. There was no direct evidence before the Tribunal that difficulty controlling or refraining from swearing is a manifestation of the appellant's acquired brain injury. Further, the evidence does not ground an inference of a causal link between the appellant's acquired brain injury and his swearing.
This ground of appeal fails for want of evidence to establish that the behaviour of swearing was an aspect of the appellant's disability, or that this behaviour was the result of or associated with his disability.
Before leaving this ground I note the argument at the hearing of the appeal in relation to procedural fairness and whether more should have been done by the Tribunal member to alert the appellant to the importance of the missing evidence. Although, as noted by the respondents, this is not a ground of appeal, I will refer to the point briefly. It is apparent from the evidence that was produced by the appellant set out above at [21], and also the comments of Mr Harnwell in opening the appellant's case on the first day of the inquiry, that there was a real awareness of the significance of this evidence. Mr Harnwell said in opening:
"So Dean has a medical inability to regulate his behaviour at times and to deal with the consequences with rational behaviour. The letter from the GP will talk to that. Unfortunately we probably should have had his psychologist make a report to that as well. But his acquired brain injury leads to him displaying antisocial behaviour … ."
It would have been apparent to the Tribunal member that the appellant's case was presented with an awareness of the need for evidence of the link between disability and behaviour.
Ground 2 – the Tribunal erred in that it applied the incorrect legal test to determine direct discrimination pursuant to s 14 of the Act
It is argued for the appellant that the Tribunal member erred in law in incorrectly applying the statutory test of direct discrimination.
The section setting out the requirements of direct discrimination is in the following terms:
"14 …
(2) Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic."
The impugned reasoning of the Tribunal member with respect to direct discrimination is as follows, particularly at [58]:
"56The complainant must prove that he was treated less favourably because of his disability than a person without that attribute.
57This involves a comparison as described by Gray J in the decision of Zhang v University of Tasmania & Ors [2009] FCASC 35 at (29) as follows:
'That case stands as authority for the proposition that in a case involving a disability affecting the behaviour of a person, the property comparator is a person with the same behavioural characteristics, although without the disability…'
The case referred to in the decision of Zhang is the High Court decision of Purvis v State of NSW (Department of Education & Training & Anor [2003] 217 CLR 92.
58In this case it is for the complainant to show that the respondents treated him less favourably in respect of his behaviour at the shopping centre because his disability when compared to a person without a disability who exhibited the same behaviour as the complainant.
…
63It is clear from the evidence that persons who did not have a disability who exhibited inappropriate behaviour including swearing and intimidating behaviour had been excluded from the centre both before and after the exclusion imposed on the complainant.
…
65There is no evidence that Hunt Security Services or Knight Frank treated the complainant in respect of his behaviour in the shopping centre any less favourably than they would have a person who undertook the same behaviour but who did not have a disability."
It was submitted that the learned Tribunal member erred in applying the comparator test from Purvis. It was drawn out in argument that s 14(2) of the Tasmanian Act is to be distinguished from the statutory provision considered in Purvis, s 5 of the Disability Discrimination Act 1992 (Cth). Section 5 of the Commonwealth Act states that the less favourable treatment is with reference to a comparator without the disability in "circumstances that are the same or are not materially different". In Purvis, the disturbed behaviour was included as part of the circumstances: per Gleeson CJ at 102, [14]; Gummow, Hayne and Heydon JJ at 162, [228]. This led to a conclusion that given the same disturbed behaviour, the treatment of the individual without a disability would have been the same.
By comparison, s 14(2) of the Tasmanian Act does not refer to circumstances that are the same or are not materially different. It is argued for the appellant that, given the difference in wording, the approach taken in Purvis need not be adopted in Tasmania, and that the comparator for the purpose of s 14 in this case is simply the appellant without the disability, and without the behaviour of swearing and other conduct ascribed to his disability. It is contended that the Tasmanian provision was evidently intended to afford a broader protection than its counterparts in other jurisdictions. The significance of the difference in the legislation and the meaning of s 14(2) was considered in a decision of the Anti-Discrimination Tribunal of Cain v The Australian Red Cross Society [2009] TASADT 03 from [437]. It was noted by the Tribunal that the terms of s 14(2) lead to a question of how would a notional person, similarly placed as the appellant, but without the appellant's attribute, have been treated (at [438]).
It was argued for the appellant that in applying the comparator test in s 14(2) the question is whether a hypothetical person in the appellant's position without the appellant's disability, who had not sworn or behaved as the appellant did, would have been treated in the same way as the appellant. It was argued that the learned Tribunal member erroneously ascribed the behaviour of swearing to the comparator at [65]. It was argued that if the Court accepts the appellant's argument with respect to ground one that his swearing and otherwise inappropriate behaviour is an aspect of his acquired brain injury, then the appellant's case with respect to direct discrimination would succeed. Inherent in the appellant's argument is that the behaviour of swearing was as a matter of fact a manifestation of the appellant's disability.
It was argued for the respondents that Cain is authority for the proposition that unless the behaviour is a distinguishing characteristic of the disability, then it cannot be regarded as part of the disability. Self-evidently, the conduct of swearing is not a distinguishing characteristic of an acquired brain injury. It was argued that as a result the correct application of the comparator test is whether a hypothetical person in the appellant's position, who had sworn, would have been treated in the same way as the appellant. However, that argument is at cross-purposes with the appellant's case. Unlike Cain, the appellant here does not invoke the phrase in s 14(2): "characteristic imputed to that attribute". The appellant relies on the behaviour of swearing as falling within the extended definition of "disability", not as a characteristic imputed to his disability. Accordingly, there is no statutory requirement for the behaviour to be a distinguishing feature of the disability.
It was also argued for the respondents that the true reason for the second ban, imposed on 7 October, was the appellant's threatening and abusive behaviour towards the tenants for "dobbing" him in, and by that behaviour breaching the conditions that he agreed to when the first ban was rescinded.
It can be seen from the Tribunal member's decision that she followed Purvis without giving consideration to the difference in the Tasmanian legislation. At [57] the Tribunal member referred to Zhang v University of Tasmania & Ors [2009] FCAFC 35, 174 FCR 366 and Purvis and applied a test that the same behavioural characteristics, even resulting from the disability, are attributed to the comparator. Assuming that the appellant's argument is correct and that, pursuant to the Tasmanian Act, disturbed behaviour which is caused by the underlying condition is not to be ascribed to the comparator, there was error in the legal test articulated and applied by the Tribunal member at [58]. However, regardless of the test, in the absence of satisfactory evidence that the appellant's disability extends to the appellant's behaviour of swearing and inappropriate conduct, this ground must fail. Absent this evidence, the learned Tribunal member was entirely correct to treat the behaviour as separate from the disability. Therefore, even if the Tribunal member had applied the approach in Cain and distinguished Purvis, it could not have yielded a successful outcome. The argument fails for the same reasons as ground 1, due to the lack of nexus between the appellant's disability and his behaviour.
Ground 3 – the Tribunal erred in failing to make a determination on indirect discrimination pursuant to s 15 of the Act
It was argued for the appellant that the Tribunal member erred in that there was no consideration given to whether the conduct alleged amounted to indirect discrimination. There was reference to evidence adduced by the respondents about the standard operating procedures of Hunt Security Services and it was argued that their application to the appellant was capable of attracting a finding of indirect discrimination. The evidence was that the procedures provided that inappropriate language may result in a three-month ban. Further, there was evidence of a "zero tolerance" policy or practice applied by security at the direction of the manager or owner of the Centre to inappropriate behaviour and language.
It was pointed out that the Commissioner's referral report adverted to indirect discrimination and identified that a fact to be established was "whether or not Mr Flanagan has been directly or indirectly discriminated against". It was acknowledged by the appellant that the Commissioner's referral report was not binding on the Tribunal, and the identification by the Commissioner of a fact to be established does not necessitate a finding by the Tribunal. Of course, the findings that must be made by the Tribunal at an inquiry are dictated by the evidence before the Tribunal and the issues raised by the parties. The point made by the appellant, as I understand it, is that the Tribunal was alerted to the issue of indirect discrimination, and given the evidence, should have considered it.
The elements of indirect discrimination are set out in s 15 of the Act:
"15(1) Indirect discrimination takes place if a person imposes a condition, requirement or practice which is unreasonable in the circumstances and has the effect of disadvantaging a member of a group of people who –
(a) share, or are believed to share, a prescribed attribute; or
(b)share, or are believed to share, any of the characteristics imputed to that attribute –
more than a person who is not a member of that group.
(2) For indirect discrimination to take place, it is not necessary that the person who discriminates is aware that the condition, requirement or practice disadvantages the group of people."
It was argued for the respondents that the complaint does not identify an essential element of indirect discrimination, namely the imposition of a condition, requirement or practice. The only evidence of a "practice" or "policy" was Hunt Security Services' standard operating procedures, and the "zero tolerance" practice or policy with respect to inappropriate language and behaviour. The zero tolerance of "inappropriate language" was particularly relevant, noting the appellant's conduct of swearing.
The respondents’ submissions on appeal were that indirect discrimination could not possibly have succeeded because:
"3.15It is firstly contended that, whilst the zero-tolerance policy was clearly implemented when the Applicant was first banned from the Claremont Village Shopping Centre, this was done without any awareness of any condition that the Applicant may have had, and was promptly reversed after a meeting with the Applicant.
3.16The second banning occurred after Mr Day was aware of the Applicant's disability, and after the Applicant had assured Mr Day, on Mr Day's evidence, that he could be relied upon not to swear or shout. There is no evidence of the operation of a general policy relating to the Applicant with respect to the second banning. The evidence points to Mr Day having made a particular requirement of the Applicant, which could not affect him as a member of a group." [Footnote omitted.]
Further, it was argued that there was a lack of reliance on indirect discrimination by the appellant before the Tribunal: there was no allegation of indirect discrimination in the complaint; the complaint does not identify the imposition of a condition, requirement or practice; the appellant did not assert in his evidence any conduct amounting to indirect discrimination; the appellant's submissions at the close of the evidence related to direct discrimination and not indirect discrimination, and did not identify anything capable of constituting indirect discrimination; and, indirect discrimination only arose once the respondents adduced evidence of the zero tolerance policy in response to allegations of direct discrimination. In short, the appellant's case was not identified as a case about indirect discrimination.
The argument suggests that a particular case must be characterised in some way by a complainant as a case potentially amounting to indirect discrimination in order to attract such a finding by the Tribunal. However, there is no such obligation for a complainant to identify potential findings, or to particularise a contravention of the Act.
In Nestle Australia Limited v Equal Opportunity Board [1990] VR 805, Vincent J considered the terms of the Equal Opportunity Act 1984 (Vic), noting (at 812 and 813) that the provisions indicated that Parliament intended that the process would not be either unduly complicated or require adherence to strict forms of procedure, and that "it is clear that the written complaint is not to be treated as a formal document of pleading" but must, on its face, raise a question of possible discrimination of a kind which will bring the matter within the jurisdiction of the inquiring body.
At 813, Vincent J stated:
"Although the lack of particularisation in the complaints under consideration or the fact that they do not refer to relevant sections in the Act or attempt to relate the alleged acts of discrimination to grounds which are specified in the Act do not constitute a bar to the invocation of the board's jurisdiction, it is nevertheless necessary for the acts which have been identified in the complaints to be such that a preliminary recognition of jurisdiction can be made."
Those comments are equally applicable to the Tasmanian Act: Commissioner of Police v Reid [2000] TASSC 181, 9 Tas R 418 at [9]; W v D [2006] TASADT 5 at [31].
It is for the Tribunal at inquiry to make findings about the evidence advanced by the parties and determine, with reference to those findings, whether there has been a breach of the Act in any respect. Often the Tribunal will be presented with evidence of a narrative of events, and it is then for the Tribunal to determine the facts and consider whether the legal requirements for any breach of the Act have been established. In the complaint document, a pro forma document, the complainant is to set out a narrative of what took place. The form makes provision for a complainant to identify the sections of the Act that he or she asserts have been breached. That is not a legislative requirement. It is the narrative that carries significance. A complainant might erroneously ascribe a section of the Act, such as inciting hatred under s 19, as having application, and miss altogether a section which would have application. A mistake of that kind is not fatal to a finding that the Act has been breached. The lack of reference to indirect discrimination in the complaint, and even during the inquiry, is not determinative of the issues to be decided by the Tribunal. The issues to be decided will be dictated by the evidence. That is not to say that the Tribunal would not pay regard to submissions made at the inquiry. The extent to which the submissions may be treated by the Tribunal as confining its consideration will depend on the circumstances of the case such as the findings made, and whether the complainant is legally represented. I reject the respondents' argument that the issue of indirect discrimination was precluded by the terms of the complaint and the failure to characterise the alleged conduct in such terms.
The Tribunal member did not mention indirect discrimination in her reasons. The question is whether she erred in failing to address whether the respondents had breached the Act by indirectly discriminating against the appellant.
In order to find indirect discrimination the Tribunal member would have to have been satisfied of the following:
· the evidence established the imposition of a condition, requirement or practice (ie a policy that swearing or "bad behaviour" results in banning from the Centre); and
· the condition, requirement or practice was unreasonable in all the circumstances; and
· it had the effect of disadvantaging the appellant;
· and disadvantaging him as a member of a group of people who share (or are believed to share) a prescribed attribute more than a person who is not a member of that group.
The relevant "group" would be people with a disability which involves a propensity to swear or act inappropriately. In order for the appellant to belong to that group he would need to have a disability that involves such a propensity.
Setting out the elements of this basis of liability in this way reveals the weakness in the appellant's argument. The appellant would have to establish that an aspect of his disability was behaviour involving swearing. As I have said earlier, there is a complete lack of evidence of that nexus. As a consequence, an essential element of indirect discrimination could not have been established on the evidence as it was before the Tribunal.
In view of the lack of evidence of an essential element of indirect discrimination, the Tribunal member's failure to determine whether indirect discrimination had been established did not affect the result of the inquiry. If indirect discrimination had been considered, the finding would have been that the elements had not been established. However, notwithstanding the inevitability of this outcome, in the circumstances of this case, it was desirable that indirect discrimination as a possible breach of the Act be addressed. This was particularly so, given that in resisting the complaint the respondents raised the application of a policy which involved the exclusion of people from services, and which had the potential to operate unfairly against people with a disability.
In result, indirect discrimination was an issue raised by the parties, and the Tribunal erred in not addressing it. However, that error had no bearing on the outcome, and it should not result in the appeal being upheld. There has been no miscarriage of justice occasioned by the error. There remain the grounds asserting error in the adequacy of the Tribunal member's reasons and, in that context, the failure to give reasons with respect to the issue of indirect discrimination falls for consideration.
Grounds 4 and 5 – the Tribunal erred in failing to provide reasons
It is convenient to consider grounds 4 and 5 together as they both involve an asserted failure to provide any or adequate reasons. It is said that the Tribunal failed to provide any, or any adequate reasons with respect to:
· Ground 4: preferring the evidence of the respondents' witnesses to that of the appellant.
· Ground 5: why the appellant had failed to establish discrimination within the meaning of the Act, and in particular why each instance of potential discrimination against the appellant by the respondents did or did not occur, namely:
(a) as a result of the initial ban on 5 October 2010;
(b)as a result of the conditions imposed upon the appellant following the meeting on 6 October 2010 lifting the ban;
(c)as a result of the reinstatement of the ban following the appellant's alleged behaviour on 6 or 7 October 2010; and
(d)as a result of the zero-tolerance policy of the first and second respondents as instituted by the third respondent.
The appellant submitted that, given that there were multiple distinct incidents of potential discrimination within the meaning of the Act, it was incumbent upon the Tribunal member to make findings of fact and to apply the correct legal test to each incident of discrimination.
A duty to give reasons
There is no statutory obligation for the Tribunal to provide reasons for dismissing a complaint pursuant to s 99 of the Act. This is curious because there is a statutory obligation to provide reasons if the Tribunal finds, after an inquiry, that a complaint is substantiated. Section 93 provides that the Tribunal, if requested by a complainant or a respondent, is to give reasons in writing for an order made under s 89. Section 89 is concerned only with orders made after a finding that a complaint is substantiated. Indeed, read strictly, s 93 provides that it is the consequential orders which attract the need to give reasons and not the conclusion reached by the Tribunal that the complaint is substantiated.
On this appeal it is not contentious that the Tribunal had an obligation to provide reasons for dismissing the complaint. The respondents' submissions proceeded on the premise that the obligation existed. Certainly, there is sound authority that the decision made after hearing and determining a complaint asserting an alleged breach of the Act is essentially of a judicial nature: Sansom v Anti-Discrimination Tribunal [2012] TASSC 73 at [13]; Kentish Council v Wood [2011] TASFC 3, 21 Tas R 59; Rothery v Marr [2012] TASSC 52. There is an obligation to give reasons as an incident of the judicial process: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269, 270. The content of the duty, that is, the extent of reasons required, depends on the nature and circumstances of the case.
The principles in relation to the duty to provide reasons are well settled. I referred to them in Robinson v Chatters [2010] TASSC 66 at [73]-[78]. Without wishing to repeat them here, it is worth mentioning some of the more general principles which guide a court's consideration in determining whether the reasons in any particular case are sufficient. Reasons need to be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available, for example, rights of appeal: Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, per Mahoney JA at 386. It is necessary that the reasons contain enough detail to enable an appeal court to effectively discharge its functions, and for the parties to understand why they have won or lost: Soulemezis v Dudley (above) at 270.
It was argued for the respondents that in civil cases a decision-maker need only state a preference for one witness over another without providing any reasons for that preference. However, it is contrary to authority to suggest that that is a principle of universal application: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 at 57; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, 66 NSWLR 186 at 189-191, [28]-[29]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [64]–[65]. In any civil case a determination as to the sufficiency of reasons for preferring one witness over another will turn on the nature and circumstances of the case. An explanation for the preference may often be needed so that an appeal court can determine an appeal, and a party is able to understand why he or she has lost the case: Phillips v Arnold (above) per Crawford CJ at [67], Porter J at [75]; Goodrich Aerospace (above) at [29].
Sufficient reasons?
As noted, the appellant argues that the Tribunal failed to provide any or any adequate reasons for preferring the evidence of the respondents' witnesses to that of the appellant. The appellant drew particular attention to [66] and [67] of the Tribunal member’s decision which are in terms:
"66 The Tribunal prefers the evidence of Mr Hunt and Mr Day as being more credible and accurate where there is a conflict with that evidence and that of the complainant.
67 The complainant has failed to establish any direct discrimination breach of the Act."
It was argued that this is an inadequate statement of reasons because of the lack of explanation for the preference. It was argued that more was required due to "serious conflicts of fact". It was submitted that it is unclear why the evidence of the respondents' witnesses was accepted and the evidence of the appellant rejected.
The reasons expressed resolving the issue of credibility are scant indeed. The Tribunal member merely set out the evidence then, as a bald statement, indicated a preference followed by a conclusion. Whether ground 4 is made out turns on the live issues before the Tribunal and a broader consideration of the reasons provided. The credibility findings are part of the reasoning which is under attack in ground 5. I reach a conclusion about the adequacy of the reasoning with respect to the credit findings and the preference for the respondents' witnesses in the discussion below about ground 5.
In relation to ground 5(b), the appellant argues that the conditions found by the Tribunal member to have been imposed at the meeting on 6 October at the time the first ban was lifted, could potentially amount to discrimination. The ground asserts error in failing to provide sufficient reasons for not finding that the conditions amounted to discrimination. This asserted deficit in the reasoning received little attention in the appellant's argument on appeal. Presumably, the appellant's position is that the imposition of conditions was a potential ground of direct discrimination contrary to s 14 on the basis of disability, and that the reasons were inadequate to explain why this did not amount to such discrimination. It is plain from the reasons that the imposition of conditions was not seen by the Tribunal member as a potential basis for a finding of discrimination. In fact, this potential basis was not even mentioned. The reasons reveal why:
"64 It is relevant that Mr Day initially made the decision to bar the complainant from access to the shopping centre without any knowledge of the complainant's disability. Further, that he rescinded the notice on becoming aware of the complainant's disability and the agreement that the inappropriate behaviour would not reoccur but then imposed the exclusion notices and bans on receiving further complaints of inappropriate behaviour."
While the Tribunal's reasons are not expansive, they do reveal the following. It is evident from the reasons at [64] that Mr Day's decision to rescind the ban on condition, or subject to agreement, that inappropriate behaviour would not reoccur was viewed by the Tribunal member as a concession made by Mr Day to the appellant's disability. It follows that, by the imposition of conditions upon the appellant (or his agreement that there be no repetition), the appellant had not been subjected to unfavourable treatment or less favourable treatment on the basis of his disability, which is an essential requirement for a finding of direct discrimination: s 14. In fact, he had been treated more favourably because of his disability; if not for his disability the ban would not have been lifted. The reasons adequately reveal why the imposition of conditions in rescinding the ban was not regarded as a potential basis for discrimination.
It is asserted in ground 5(d) that a potential basis for discrimination arises from the application of the zero-tolerance policy, and yet this basis was not dealt with at all in the Tribunal member's reasons. The respondents' evidence was that the policy was applied on 5 October and hence the appellant was banned on that date. The appellant argues on appeal that this evidence gave rise to the issue of indirect discrimination, and, as seen above, I agree that the issue arose, but I have determined that the appellant's argument could not have succeeded due to a lack of evidence of a link between the appellant's conduct of swearing and his acquired brain injury. Despite the inevitable failure of such an argument, the Tribunal member should still have addressed this issue in her reasons. When a respondent defends a complaint of direct discrimination by arguing that a general policy was applied, giving rise to an issue of indirect discrimination, it strikes me as particularly important that the Tribunal's reasons address that issue. A real sense of grievance may be engendered if it was thought by complainants that a type of discrimination (direct) can be defended by raising another type (indirect). Also, it is an aspect of the Tribunal's educative function in giving reasons to explain that targeted conduct is not the only way that people can be discriminated against. Like courts, the Tribunal has a role as a civilising force in the resolution of disputes, W v Watson [2002] TASSC 38 at [44], and this role required that consideration be given, and be seen to be given, to this form of discrimination. I conclude that although an argument of indirect discrimination could not have succeeded, the reasons were inadequate in failing to explain why the respondents' application of a zero-tolerance policy could not, in the circumstances of this case, amount to indirect discrimination.
Relevantly to grounds 5(a) and 5(c) it was submitted for the appellant that each of the two bans was capable of being characterised as discrimination. Undoubtedly, the Tribunal member was required to give reasons demonstrating why the bans in each instance, neither ban disputed by the respondents, fell short of discrimination. The Tribunal member was obliged to disclose the key findings with respect to both incidents.
In relation to ground 5(a), it is argued for the appellant that the reasoning for the conclusion that direct discrimination had not been established in relation to the imposition of the first ban was inadequate.
It is submitted that the reasons failed to explain how the factual dispute regarding the appellant's conduct was resolved. The Tribunal found at [59] that the appellant "did use inappropriate language, namely swearing in a tone which was intimidating to a person at the Claremont Village on 5 October 2010 and objected to being asked to leave the premises". While the appellant conceded that he swore, his evidence was to the effect that he was not intimidating and he did not refuse to leave. It is submitted that the only evidence that supports the Tribunal member's finding is the evidence of Christopher Rowland. It was submitted that no reasons were given as to the resolution of whether the appellant was intimidating and objected to being asked to leave.
To a significant extent, the finding at [59] accords with the appellant's own evidence. The appellant conceded that he did not leave immediately when asked to do so, but flicked through the newspaper for two or so minutes before leaving. The Tribunal member's characterisation of the appellant's behaviour as "intimidating" and "objecting to being asked to leave" was open, even if she accepted the appellant's account, making allowances for a difference in perception of the incident by the appellant and Mr Rowland. The Tribunal member stated at [52] that Mr Rowland was accepted as a witness of the truth. This statement of preference is under attack in ground 4. I regard that statement as sufficient reasoning in light of the limited factual dispute concerning the events of 5 October.
Ultimately, the first ban that was imposed as a result of the incident involving swearing, as described by Mr Rowland, had limited significance. It was not regarded by the Tribunal as treatment that could give rise to a finding of direct discrimination on the basis of disability. As noted, the Tribunal member's reasons on this issue appear at [64]. The Tribunal member revealed her findings that Mr Day's decision to bar the appellant on 5 October was made without any knowledge of the appellant's disability. Once aware of the disability, he rescinded the ban and it was reimposed upon Mr Day receiving further complaints of inappropriate behaviour by the appellant which breached their agreement that there would be no further instances of inappropriate behaviour. The significance attached to the rescinding of the notice has not been impugned in this appeal.It is worth noting that the complaint with respect to the first ban may have failed for this reason alone; the alleged discriminatory conduct, the ban, was rescinded. It is sufficiently clear from the reasons that the Tribunal regarded the rescinding of the ban as curative. It was not suggested that there was error in that approach or that that approach was not open. Significantly, in terms of this ground, it is not suggested that further explanation was required to justify that approach.
Another matter raised in relation to ground 5(a) which is said to highlight the need for reasons with respect to the first ban was that it appears from the evidence adduced by the respondents that a similar response of a ban had not been imposed upon other patrons of the Centre for conduct involving swearing. Indeed, during the inquiry the Tribunal received the respondents' records of bans imposed on others. It appears from those records that no one else had been banned merely for swearing or inappropriate behaviour similar to the appellant's conduct. The appellant argues that this documentary evidence shows differential treatment of the appellant. It raises the question whether the reasons reveal how this evidence was used by the Tribunal member.
The Tribunal member (at [30]) noted the entries in the records as referring to a number of people being asked to leave the Centre or being removed from the Centre for inappropriate behaviour and language, for being a nuisance to other patrons, for swearing, yelling or being aggressive or intoxicated, or for harassing or intimidating customers. At [63] the Tribunal member found that it was clear from the evidence that persons who did not have a disability who exhibited inappropriate behaviour, including swearing and intimidating behaviour, had been excluded from the Centre both before and after the exclusion imposed on the appellant. It was submitted for the appellant that the finding was erroneous in that the records revealed that conduct of other persons leading to their exclusion was far more serious than the appellant's conduct, the Tribunal member had not addressed the relative seriousness of those incidents, and it was evident that no one else had been banned merely for swearing. Of course, ground 5 is concerned with adequacy of reasons, not erroneous findings, and the reasons reveal that these records were adverted to, a finding was made about those records, and what the finding was. It would have been ideal if there had been more extensive analysis of the documentary evidence and what it showed as a comparison to the response in banning the appellant. However, further reasoning was not essential to an understanding of the Tribunal's approach to the first ban and why the appellant lost on this point.
It can also clearly be seen that with respect to the first ban the Tribunal member proceeded on the basis that the appellant's disability was separate from his behaviour of swearing: [58], [59] and [65]. It is sufficiently clear from the reasons that this approach of regarding the disability as separate from the conduct led to the failure of the complaint. The complaint may have potentially succeeded if the conduct of swearing was part of the disability, noting the ban on the first occasion was caused by the swearing. However, despite the potential significance of that approach, the Tribunal member did not disclose any rationale for it. I have given consideration to whether a lack of rationale for this approach may amount to an inadequacy in the reasons. In my view, the Tribunal member did not need to elucidate in her reasons the rationale for why the disability was not regarded by her as including the conduct of swearing because that proposition was theoretical, unsupported by evidence. I refer to all I have said about the lack of evidence showing a nexus between the appellant's disability and his behaviour of swearing. The reasons reveal the Tribunal member's approach with respect to the first ban and the relevance she attached to Mr Day's lack of knowledge of the appellant's disability, and the resulting rescinding of that ban when informed of that disability. In light of that reasoning, the conclusion at [65] that there was no evidence of unfavourable treatment on the basis of disability, insofar as it applied to the first ban, was adequately supported by reasons. Those reasons reveal that the Tribunal member found or reasoned as follows: the first ban was imposed because of the appellant's behaviour; his behaviour was distinct from his disability; therefore, the first ban was imposed for reasons unrelated to the disability and did not constitute direct discrimination contrary to the Act. It is evident from the Tribunal member's reasons that the only conduct potentially falling within the provisions of the Act is the second ban. The reasons were adequate with respect to the first ban.
With respect to the Tribunal member's reasons for the second ban, the subject of ground 5(c), it is apparent from those reasons that she concluded that the appellant was banned because of his behaviour and he was not treated any less favourably than any other person who behaved in the same way: [65]. As for the behaviour that led to the ban, the Tribunal member stated at [61]: "The Tribunal finds that on the 6 or 7 October the complainant was abusive to several of the shop operators at the shopping centre accusing them of 'dobbing him in'."Clearly, there was a conflict in the evidence as to whether the appellant did behave in that way. The appellant had denied entering the Centre and treating some of the other staff abusively for "dobbing" him in. In resolving this conflict the Tribunal member's reasoning was confined to stating that she preferred the evidence of Mr Hunt and Mr Day as being more credible and accurate where there was conflict with the appellant's evidence. Given the centrality of the credit finding to the issue of the appellant's behaviour, further reasoning was required, in my respectful view, for preferring the respondents' witnesses and rejecting the appellant's account in this context. Someone in the appellant's position would have been left wondering why he lost; why he was not believed.
It is noted that, even allowing for the credit finding in favour of the respondents' witnesses, there is still a legislative pathway to enable a finding that the respondents subjected the appellant to direct discrimination. Even if the appellant acted as asserted by the respondents in that he was abusive towards shop operators, if that conduct could be ascribed to his disability and that disability was the reason for the second ban, direct discrimination may be open. However, in the context of this case that potential pathway was not a live issue. The appellant denied accusing shop owners of dobbing him in. He did not at any time ascribe such conduct or that kind of conduct to his acquired brain injury. Once the Tribunal member determined that the appellant did act in that way, and that that was the information that Mr Day had about the appellant's conduct, the issues raised by the appellant with respect to the second ban were effectively resolved. Indeed, even if the Tribunal member had not found that the appellant had made abusive accusations to shop owners and tenants, and all that the Tribunal found was that Mr Day received that information and believed it, on the evidence before the Tribunal the second ban had no nexus with the appellant's disability.
Mostly, the reasons of the Tribunal member were adequate. Her reasons with respect to the first ban were sufficient in demonstrating why the complaint had not been substantiated. The appellant has been informed why he has lost. Further explanation for preferring the account given by the respondents' witnesses was not required due to the limited nature of the factual dispute. An explanation for treating the behaviour of swearing as unrelated to the disability was not required due to a lack of evidence to support a causal relationship. There was, as noted, a deficiency in the reasons in relation to the first ban in that they should have disclosed why the ban did not amount to indirect discrimination.
Having regard to the second ban, the following steps in reasoning were revealed:
·the account of the respondents' witnesses was preferred to the appellant's account of his conduct;
·the Tribunal member found that the appellant acted abusively by accusing shop owners of dobbing him in;
·he breached his agreement not to act in such a way;
·he was then banned because Mr Day received complaints of this abusive and accusatory behaviour; and
·others who did not have a disability would have been treated in the same way for similar behaviour.
The Tribunal member's preference for the respondents' account of the appellant's conduct was a central plank in the reasoning for the conclusion that the respondents' conduct did not amount to discrimination. In the context of the hearing and the issues raised by the parties, the reasons given for that preference were inadequate.
While the reasons were inadequate in two respects, the appeal should not necessarily succeed. The consequences of a failure to provide adequate reasons turns on the circumstances of each case: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 per Meagher JA at 441-442, 444; Perkins v County Court of Victoria [2000] VSCA 171, 2 VR 246 per Buchanan JA at 270-271; see also Absolon v NSW Tafe [1999] NSWCA 311 per Powell AJA at [67]. One consideration which may be telling is whether the decision was the only conclusion open on the evidence: W v Watson (above). Here, the appellant's case as to direct or indirect discrimination was flawed. There was, as I have observed a number of times, a lack of evidence enabling the Tribunal to find that the appellant's conduct of swearing (in relation to the first ban) and abusive accusations (in relation to the second ban) were aspects of his disability as defined in the Act. There can be no suggestion that the appellant was taken by surprise in relation to the significance of this evidence. As noted above, the significance of the evidence to the appellant's case was adverted to by his advocate at the outset of the hearing.
It would be undesirable to remit this matter for a new hearing unless the Court could have some confidence in the appellant's prospects of success. The evidence was so inadequate with regard to a link between the conduct leading to the bans and the appellant's acquired brain injury that the case had to fail; there was no other reasonable conclusion based on the evidence. Further, specifically in relation to the second ban, it was not suggested by the appellant that his conduct, as found, was a manifestation of his acquired brain injury. The issue was whether he behaved in that way. Any disadvantage to the appellant from the first ban was addressed by the respondents at the earliest opportunity by rescinding the ban. There would be a strong argument at a rehearing that that first ban, even if it could be shown that it amounted to discrimination on the basis of disability, should not lead to any redress under the Act because of the ameliorative action taken by the respondents.
Despite insufficient reasons given by the Tribunal in some respects, noting that the conclusion reached was the only conclusion reasonably open on the evidence, no miscarriage of justice could be said to have resulted from a lack of reasons. The appeal should be dismissed. I will make an order accordingly.
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