Forozandeh v Sky City Adelaide
[2006] FMCA 222
•17 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FOROZANDEH v SKY CITY ADELAIDE | [2006] FMCA 222 |
| HUMAN RIGHTS – Allegation of discrimination – applicant says he was denied entry to Grange Room at Sky City Adelaide Casino based on respondent’s employee’s racially discriminatory attitude and remark – whether incident as alleged occurred – allegations to be proven on civil standard – applicant in communication with Casino over period of two years but act of discrimination never raised by him – finding that act as alleged did not occur. |
| Racial Discrimination Act 1975 (Cth) ss.9, 13, 18A Disability Discrimination Act 1992 (Cth) Human Rights & Equal Opportunity Act 1986 (Cth) s.46PR |
| Purvis v New South Wales Department of Education & Training (2003) 202 ALR Briginshaw v Briginshaw (1938) 66 CLR 336 McAllister v SEQ Aboriginal Court for Legal Services & Anor [2002] FMCA 109 Beamish v Zheng [2004] FMCA 60 at [14] |
| Applicant: | SHAHRAM FOROZANDEH |
| Respondent: | SKY CITY ADELAIDE PTY LTD |
| File Number: | ADG 1 of 2004 |
| Judgment of: | Lindsay FM |
| Hearing dates: | 16 & 18 February 2005, 8 & 11 July 2005, 5 & 26 August 2005 |
| Date of Last Submission: | N/A |
| Delivered at: | Adelaide |
| Delivered on: | 17 February 2006 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Mr Austin |
| Solicitors for the Respondent: | Minter Ellison |
ORDERS
That the Application filed on 7 January 2004 be and the same is hereby dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 1 of 2004
| SHARAM FOROZANDEH |
Applicant
And
| SKY CITY ADELAIDE PTY LTD |
Respondent
REASONS FOR JUDGMENT
This is an application by Mr Forozandeh for orders under the Racial Discrimination Act 1975 (Cth) (hereinafter referred to as “the Act”). The application was filed on 7 June 2004 and in relation to the orders sought, specified:
The application was filed on 7 June 2004 and in relation to the orders sought, specified:
a)Discrimination to be lifted and an apology from Sky City Adelaide.
b)Compensation for the distress they have caused me over the last two years.
c)Given direction to Sky City Adelaide not to repeat similar action.
Pursuant to the Rules of this Court Mr Forozandeh filed an affidavit with his application.
In that affidavit, which was also filed on the 7th day of June 2004, he deposed to the following:
“I feel I have been discriminated by Skycity Adelaide employee named Albert Davia as he had refused my entry as a guest of a member. Also I heard him once as he was (try) explaining to me said he had bad experiences with Persians in Melbourne.
I believe my complain [sic] is releavent [sic] to sections 9, 13 and 18A of the act.
As a result of Skycity Adelaide action I have suffered a lot of stress and discomfort.”
When he lodged his complaint with the Human Rights & Equal Opportunity Commission (HREOC) Mr Forozandeh described in the pro forma document provided by him a description of what had happened to him. The document is dated 18 June 2003. Under the heading “What happened to you?” he wrote as follows:
“There is a privet [sic] members room in the Skycity Adelaide, any member is allowed to have a guest. I have been refused entry as a guest of a member. In numerous times I tried to discuss the issue with casino staff. Once when I was at the entrance of privet [sic] room while I was asking some question. The VIP manager (Albert Davia) walked out of the room and asked what I want. I said to him I want to know why I cann't [sic] go to grange room as a guest of a member? He replied: "I had bad experiences with Persians in Melbourne" and then he walked away. I couldn't believe what he said so I left. I have tried so many times to discuss this with Skycity Adelaide and they arranged meetings also I had conversation on telephone with some staff. Unfortunately every single time they "casino" never answered directly to my question. They are master of going round the circle.”
The references to the sections of the Racial Discrimination Act are to the following:
Section 9 Racial discrimination to be unlawful
(1)It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A) Where:
(a)a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b)the other person does not or cannot comply with the term, condition or requirement; and
(c)the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;
the act of requiring such compliance to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
(2)A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention.
(3)This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia.
(4)The succeeding provisions of this Part do not limit the generality of this section.
Section 13 – Provision of goods and services
It is unlawful for a person who supplies goods or services to the public or to any section of the public:
(a)to refuse or fail on demand to supply those goods or services to another person; or
(b)to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he or she would otherwise supply those goods or service
by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person.
Section 18A – Vicarious liability
(1) Subject to subsection (2), if:
(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by that person;
this Act applies in relation to that person if that person had also done the act.
(2)Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from ding the act.
Mr Forozandeh gave evidence and was cross-examined. He called no other witnesses.
The respondent called a number of witnesses who were cross‑examined by Mr Forozandeh.
In respect of each witness called by the respondent witness statements were provided to Mr Forozandeh so as he had the opportunity to consider the questions that he wished to put to each of those witnesses.
It will be noted at the outset that Mr Forozandeh's claim is that he has been directly discriminated against by the respondent.
It should be regarded as settled law now, particularly in the light of the decision of the High Court in Purvis v New South Wales Department of Education & Training (2003) 202 ALR, that it is unnecessary for the applicant to establish a motive to discriminate. The inquiry is one to determine whether the treatment of the applicant by the respondent had its true basis or real reason in the discrimination on account of race.
Purvis (supra) was a case involving the Disability Discrimination Act 1992 (Cth) but all that the High Court had to say on the topic of motive in that case is equally applicable to applications brought under the Act. An act is “based on” race if race is the true basis or real reason for it.
Although the Court is able to exercise a discretion not to be bound by technicalities in proceedings under the Human Rights & Equal Opportunity Act (s.46PR) it must be satisfied that the applicant has proved his claim of unlawful discrimination in accordance with the civil standard test (Brigginshaw v Brigginshaw (1938) 66 CLR 336 at 362, per Dixon J; McAllister v SEQ Aboriginal Court for Legal Services & Anor [2002] FMCA 109 at [39], per Driver FM; and Beamish v Zheng [2004] FMCA 60 at [14] per Driver FM).
So I must be satisfied on the balance of probabilities that the respondent through its employees, servants or agents performed an act or engaged in conduct which involved a distinction, exclusion or restrictions on the applicant based on his race.
The respondent's answer to the applicant's claim is that the alleged act of discrimination never occurred.
As to when the incident alleged occurred, in the complaint form which accompanied the application to HREOC Mr Forozandeh placed the event as happening "18 months ago about". That document is dated 18 June 2003, which places the incident as having occurred either in late 2001 or early 2002.
In evidence Mr Forozandeh identified the member of the Grange Room who accompanied him on this occasion and who was introducing him as a guest on this occasion as a Mr Azimi. He acknowledged that Mr Azimi had died in October of 2001.
During the early stage of the proceedings before me Mr Forozandeh was directed to provide certain particulars in relation to his claim. In a letter which became exhibit 9 in the proceedings and which is dated 24 May 2004 Mr Forozandeh said that the incident the subject of the proceedings occurred on or about July 2001.
We know Mr Forozandeh was barred from the Casino for two months from 29 August 2001 to the end of October 2001. This was in respect of an incident on 29 August 2001 to which I will turn shortly, which incident was originally the subject of a three-month ban. The ban was reduced to one month by order of the Gambling Commissioner but effectively it operated until the Commissioner’s determination was handed down on 24 October 2001.
Ultimately Mr Forozandeh placed the incident as having occurred some time in June or July of 2001. The date of the death of Mr Azimi, the dates of Mr Forozandeh being barred and his general recollection of the sequence of events assisted Mr Forozandeh in coming to this conclusion. I do not think the absence of precision as to the date is of any great significance. What is important is that Mr Forozandeh said that the incident occurred in approximately June or July of 2001.
Mr Davia, the person alleged to have perpetrated the act of direct discrimination, gave evidence and was cross-examined. He said that he was employed in the position of VIP operations manager at the Casino for the period October 2000 to December 2003. He said that in June of 2001 the applicant had approached him inquiring about membership of the Grange Room. This was also the subject of a statutory declaration executed by Mr Davia and which came to be exhibit 15. He said that he explained to him the terms and conditions relating to membership.
He alleged that he had a conversation with Mr Forozandeh on 11 June 2002 in the marble hall entrance area of the Casino.
He specifically denied that any incident as alleged by Mr Forozandeh in which he made a reference to having had trouble with Persians ever occurred, either in the context of the events described by Mr Forozandeh or at all.
Much of the evidence called by the respondent was taken up in the description of interactions between Mr Forozandeh and other Casino staff involving Mr Forozandeh's attempts to join the Grange Room, his interaction with staff members, his barring and his conduct at the casino on various occasions. There were three incidents of significance - the one of 29 August 2001, the dress violation code report of 29 November 2001 and an incident involving Mr Davia on 11 June 2002.
Mr Forozandeh made no complaint whatsoever to the casino at the time the incident is alleged to have occurred. This is notwithstanding that in the period between June 2001 (the approximate date on which Mr Forozandeh said the incident occurred) and the filing of his complaint with HREOC (June 2003) he was regularly interacting with members of the Casino staff in relation to other complaints relating to his behaviour. I will deal with this in more detail. It is a matter that I regard as extremely significant. It is a period of approximately two years. Mr Forozandeh's interactions with Casino staff during this period of time were extensive and every opportunity was afforded to him to ventilate his concerns in relation to this incident.
I turn firstly to the incident of 29 August 2001. One Carmone Scalfino, a shift manager present in the Grange Room at the time, made a statement and gave evidence about events said to have occurred on this evening. As at this date Mr Forozandeh had been permitted to enter the Grange Room but only if he was accompanied by the member referred to earlier herein, Mr Azimi. It was said by Scalfino that it was brought to his attention that Mr Forozandeh had gained entrance using the name of Koutmidas. Scalfino did some checking. Upon satisfying himself that it was Forozandeh and not Koutmidas who was present at the Grange Room he asked Mr Forozandeh to leave. Mr Forozandeh did not leave. The security shift manager, a Mr Morgan, then also spoke with Mr Forozandeh. He asked Forozandeh to leave. Mr Forozandeh refused and indicated that he would have to be physically removed and allegedly used offensive language. Ultimately security officers were called and Mr Forozandeh was physically removed from the Casino.
I also had the evidence of one of the security guards involved in his removal, namely, a Mr Ron Lorns. He gave evidence as to Mr Forozandeh's alleged use of bad language, particularly during the period of his being escorted down the fire stairs and onto the street.
Mr Forozandeh in his evidence disputed significant parts of the accounts of the witnesses, Scalfino, Morgan and Lorns. In particular he disputes the use of a false name and the offensive language. He alleges inappropriate behaviour by certain casino members. Ultimately I have been unable to come to a conclusion as to where the truth lies in relation to this incident. However, I have determined that it is not a matter that I necessarily have to make findings about to resolve the proceedings before me. What is not contested is that was a significant dispute on this occasion between Mr Forozandeh and members of the casino staff which resulted in him being physically removed. The incident was the subject of a number of representations subsequently made by Mr Forozandeh to other members of the Casino staff.
Another incident occurred on 29 November 2001 which was not on anyone's account of the same magnitude as the August incident. A Mr Cossey, gave evidence that on that date Mr Forozandeh was refused entrance to the casino on account of his violating the dress code by wearing what were alleged to be faded and frayed jeans. He alleges that Forozandeh became aggressive and used bad language directed both at him and a security shift manager who attended, a Mr Steve Mibus. Once again the substantial elements of this incident are disputed by Mr Forozandeh and once again I am unable to come to a conclusion as to precisely what occurred other than that there was some level of disputation between Mr Cossey and Mr Forozandeh and that this was subsequently the subject of discussions between Mr Forozandeh and Casino staff.
I turn to the incident of 11 June 2002. Mr Davia when he gave his evidence and in his statement referred to this being an occasion when he was walking through the marble hall entrance of the Casino towards the Hyatt Hotel area. He says that Mr Forozandeh approached him and made an inquiry as to the fate of his membership application to the Grange Room. When Mr Davia replied that he (Forozandeh) knew the answer to that, Mr Forozandeh is alleged to have asked him “Do you still live at Magill?”
Davia said that this was a shock to him as he was unaware that Mr Forozandeh was familiar with details relating to his address. Mr Davia subsequently gave a statement to Mr Lorns in relation to that matter on 27 June 2002 and many months later swore a statutory declaration in relation to the incident. The "late" reporting of the matter by Davia was the subject of some disgruntlement and concern on the part of Mr Forozandeh and was also the subject of a number of subsequent discussions between he and members of the Casino staff. The incident was investigated by another employee of the Casino named Geoff Yates, with whom Mr Forozandeh spoke.
As with the earlier two incidents above described, I do not come to any conclusion as to precisely what occurred on this occasion was as Mr Davia alleged. Mr Davia gave his evidence in relation to the events in a very straightforward manner and, whlst Mr Forozandeh denied the key question he is said to have asked, his evidence on the topic was more hesitant and lacking in specificity and I have no reason to believe that Mr Davia was not telling the truth in relation to the matter but ultimately what is significant about the event is its sequelae rather than any findings as to what was said.
A statement was provided and evidence taken from a Mr Greg Hawkins who was the general manager of Sky City at the times germane to this dispute. Mr Hawkins said that he met with Mr Forozandeh in November of 2001. The purpose of the meeting was to discuss Mr Forozandeh's allegations relating to Mr Morgan arising out of the incident on 29 August 2001. It will be recalled that Mr Forozandeh disputed the account of events given by Casino staff and in fact alleged that Morgan had made offensive, threatening and demeaning comments about him.
Mr Morgan also spoke with Forozandeh about this matter on 14 November 2001.
In August 2002 Mr Forozandeh wrote to Mr Hawkins. That letter was ultimately tendered in evidence as exhibit 6. In that letter Mr Forozandeh says as follows:
“I would like to draw your attention to the number of issues that need to be cleared which they have been discussed in different times in the past with different staff.
Unfortunately I have given unfounded answers saying things like, I cannot speak in someone else's behalf, I cannot comment on that, or we agree to disagree, et cetera.
Here there are some of the issues in order of importance and your kind consideration to them one by one will be much appreciated.”
Mr Forozandeh then goes on to discuss the incident of 29 August 2001 and the alleged inappropriate comments of Morgan towards him.
Secondly, he says that he rang Mr Davia earlier in the year and raised a query with him and have not received any response from Mr Davia.
Thirdly, Mr Forozandeh said that he had been told that he is not allowed into the Grange Room under any circumstances and wanted to know why this was so.
Fourthly, he referred to the fact that he had heard from a security manager of the casino about the allegation made by Mr Davia in relation to the incident of 11 June 2002. He raised his concerns about Mr Davia not having reported that matter for a week and raised his concerns about there being no surveillance tape available in relation to the matter. He referred to Mr Davia's allegations as "baseless".
Mr Hawkins subsequently responded to Mr Forozandeh by way of letter dated 2 September 2002.
At no stage during his discussions with Mr Hawkins did Mr Forozandeh raise the incident the subject of these proceedings. He did not even allege to Mr Hawkins when he was cross‑examining him that he did so. Furthermore it will be seen that when Mr Forozandeh reduces to writing his then outstanding concerns in relation to the Casino on 7 August 2002 there is no reference to the alleged incident of racial discrimination which had occurred more than 12 months previously.
Mr Forozandeh was unable to provide any rational explanation as to the absence of this topic from his discussions with the general manager of the Casino in 2001 and his correspondence with him in the following year.
The officer of the Casino with whom Mr Forozandeh had the most significant contact in relation to these incidents was one Tammy Meuris.
Ms Meuris said that she spoke with Mr Forozandeh on 17 July 2002 in relation to the alleged incident involving Mr Davia on 11 June 2002. Mr Forozandeh raised with her the similar concerns as were expressed in his letter to Mr Hawkins of 7 August 2002. He did not raise the incident of alleged racial discrimination. He did not put to Ms Meuris that he did raise it during the course of this conversation.
Indeed, Ms Meuris met with Mr Forozandeh on 22 July 2002. Once again the alleged incident of racial discrimination was not raised and once again Mr Forozandeh did not even suggest to Ms Meuris in cross‑examination that it had been raised.
A subsequent telephone call on 31 July 2002 contained no reference to the alleged incident of racial discrimination either.
This continued to be a characteristic of subsequent discussions between Ms Meuris and Mr Forozandeh. They spoke on occasions throughout August and September of 2003.
In March and April of 2003 Ms Meuris spoke with Mr Forozandeh both over the telephone and personally in relation to the question of the barring of his entry from the Grange Room being lifted. Ms Meuris stipulated that the only conditions upon which he would gain entry would be his attending as a guest and undergoing a "rating" procedure as to his fitness for membership. She gave evidence of conversations with Mr Forozandeh throughout April and May 2003 in relation to this and other matters.
Ultimately on 26 June 2003 a common law barring notice was served upon Mr Forozandeh.
Once again the significance of the interactions between Forozandeh and Meuris is the absence of any reference at all to the alleged incident of discrimination. I cannot conceive how it would be that if this incident had occurred Mr Forozandeh would not have taken the opportunity during his many conversations with Ms Meuris relating to his status as a user of the Casino and as a person wishing to gain entry and/or membership to the Grange Room that this incident would not have been the subject of some complaint by him and some request by him to have it investigated.
In addition to these matters I was provided with an exhibit, namely, exhibit 12, which is a copy of a letter forwarded by Mr Nick Zenophon MLC to the Casino on 23 April 2003. The letter was addressed to Mr Greg Hawkins and indicated that Mr Forozandeh had not received an adequate response to his letter of 7 August 2002.
There was no reference, express or implicit, to the alleged incident of discrimination in Mr Zenophon's letter. Mr Forozandeh was unable to provide any explanation as to why, when raising his grievances as to the Casino's treatment of him with Mr Zenophon, he did not include within the list of those grievances the incident of alleged racial discrimination.
As indicated, Mr Davia gave evidence and was cross‑examined. On the specific topic of whether or not a conversation occurred in which he made a reference to having had difficulties with Persians, I accept unreservedly his evidence that no such conversation took place. Mr Davia was at the time of the giving of his evidence no longer an employee of Sky City.
I accept his evidence that there was no reason or motivation for him to have made such comments. If the Casino wished to bar Mr Forozandeh from entry to the casino or specifically to the Grange Room there was an ample basis for that provided in earlier behaviour of Mr Forozandeh and by the very terms of admission to the Grange Room itself.
Mr Forozandeh clearly has a sense of grievance in relation to the dealings of the Casino with him over the years and especially in relation to the incidents of 29 November 2001 and 11 June 2002. He appears to be particularly concerned about what he said was the baseless allegation by Mr Davia as to his inquiry about whether Mr Davia still lived at Magill.
It is these incidents that have been the focus of his disputation with the Casino since 2001. They have led to him making complaints to the Casino and to the Gambling Commissioner. He has spoken over the telephone and in person with members of the Casino staff in relation to these matters. He has written to the Casino. In none of his communications, oral or in writing, is the alleged incident of racial discrimination referred to, let alone agitated seriously.
The incident makes its first appearance when he makes his formal complaint to the HREOC.
On account of the following matters -
a)the vagueness of Mr Forozandeh's evidence as to the date upon which the alleged incident occurred, and by that I mean not the fact that he cannot state the date with precision but that his view of when the incident occurred, even in a general sense, varied significantly from the time he made his complaint to HREOC until the time he gave his evidence before me;
b)the fact that his account of the alleged incident of racial discrimination is uncorroborated;
c)the fact that the alleged incident of racial discrimination was never raised by him over the course of a two‑year dispute with the casino in relation to other matters;
d)the absence of any satisfactory answer on his part explaining the delay in the raising of the allegation;
e)my acceptance of the evidence of Davia in relation to this incident and in relation to other topics;
all of these matters in combination – I am satisfied that the incident of alleged discrimination did not occur.
I should indicate that that is a finding that I have come to with a high degree of confidence. That being the case and my having found that no incident of racial discrimination occurred, it is unnecessary to consider any other matters arising from the nature of Mr Forozandeh's claim under the Racial Discrimination Act.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate:
Date:
3
3