Forozandeh v Sky City Adelaide Casino

[2006] FCA 924

FEDERAL COURT OF AUSTRALIA

Forozandeh v Sky City Adelaide Casino [2006] FCA 924

SHAHRAM FOROZANDEH v SKY CITY ADELAIDE CASINO

SAD 43 of 2006

MANSFIELD J
25 JULY 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 43 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SHAHRAM FOROZANDEH APPELLANT
AND:	SKY CITY ADELAIDE CASINO RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	25 JULY 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant pay to the respondent its costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 43 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SHAHRAM FOROZANDEH APPELLANT
AND:	SKY CITY ADELAIDE CASINO RESPONDENT

JUDGE:	MANSFIELD J
DATE:	25 JULY 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

INTRODUCTION

1. On 18 June 2003 Mr Forozandeh complained to the Human Rights and Equal Opportunity Commissioner that he had been discriminated against by Sky City by being refused entry to a private members room (the Grange Room) at the Adelaide Casino in about June 2001.  The alleged incident occurred, he said, by the VIP Operations Manager of Sky City, Albert Davia, refusing him entry to the Grange Room because he ‘had had bad experiences with Persians in Melbourne’.  Mr Forozandeh complained that he had been discriminated against by reason of his race, contrary to the provisions of the Racial Discrimination Act 1975 (Cth).

2. Section 9 of the Racial Discrimination Act relevantly makes it unlawful for a person to do any act involving an exclusion based on race or national origin, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. Nothing turns upon the precise terms of the relevant provisions. HREOC was unable to resolve the complaint. Consequently, Mr Forozandeh applied to the Federal Magistrates Court on 7 January 2004 for a determination that he had been discriminated against by Sky City, contrary to the provisions of the Racial Discrimination Act and for remedial orders.

   THE ISSUE

3. The issue before the Federal Magistrate was quite straightforward.  It involved deciding a question of fact.  That fact was whether Mr Davia had refused Mr Forozandeh entry to the Grange Room in about June 2001 because Mr Davia ‘had had bad experiences with Persians in Melbourne’.  If Mr Davia did do that, it was accepted Sky City could have discriminated against Mr Forozandeh on account of his race.  The motive for any such discrimination is irrelevant:  Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92. The Federal Magistrate correctly said that he had to be satisfied on the balance of probabilities that the discrimination lodged by Mr Forozandeh had occurred. His Honour found that it had not and so dismissed the application.

   THE APPEAL

4. This is an appeal from that decision.  The appeal is by way of re-hearing.  In CSR Ltd v Della Maddalena (2006) 224 ALR 1 at [16] Kirby J said:

   ‘The relevant “requirements” are that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing.  It is not confined to reconsideration of the record in order to correct errors of law, although that will certainly be encompassed in such an appeal.  It is required to consider suggested errors of fact-finding.  Experience teaches that many errors of this kind arise at first instance, more perhaps than errors of law.  Having conducted a rehearing as so described, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”.  This involves, where, as here, there is no jury, conducting a thorough review of the primary judge’s reasons and engaging in the tasks of “weighing conflicting evidence and drawing … inferences and conclusions”.’
   (footnotes omitted)

   Where, as here, the appeal is against a decision on a question of fact, and that decision depends upon the judge at first instance assessing the credibility or reliability of witnesses, the appeal court will be slow to decide that the decision at first instance is wrong.  That is because the appeal court has not had the opportunity of seeing and hearing the witnesses.  Ultimately, however, the Court on appeal must intervene if it is satisfied that the decision at first instance is wrong:  see Devries v Australian National Railways Commission (1993) 177 CLR 472.

   THE FEDERAL MAGISTRATE’S DECISION

5. The Federal Magistrate was positively satisfied that the incident of alleged discrimination did not occur for five reasons, taken in combination.  They were:

   (a)the vagueness of Mr Forozandeh’s evidence as to the date upon which the alleged incident occurred, in particular because his evidence 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 the Federal Magistrate;

   (b)the fact that his account of the alleged incident of racial discrimination was uncorroborated;

   (c)the fact that the alleged incident of racial discrimination was not raised by Mr Forozandeh over the course of a two-year dispute with Sky City in relation to other matters;

   (d)the absence of any satisfactory explanation by Mr Forozandeh as to why he delayed in raising the allegation; and

   (e)the Federal Magistrate’s acceptance of the evidence of Mr Davia.

   CONSIDERATION OF MR FOROZANDEH’S SUBMISSIONS ON THE APPEAL

6. Mr Forozandeh contended that each of the Federal Magistrate’s reasons for his Honour’s factual conclusion were either wrong or of no significance.  I shall refer to those reasons in the sequence they are set out above.

7. In his initial complaint to HREOC made on 18 June 2003, Mr Forozandeh asserted that the incident had occurred about ‘18 months ago’.  He said he was accompanied by a Mr Azimi at the time.  When it was learned that Mr Azimi had died in October 2001, he said that the incident must have occurred earlier than that.  Other records then demonstrated that Mr Forozandeh had been barred from attending the Casino following an incident on 29 August 2001, and not permitted to re-enter until 24 October 2001.  He ultimately in evidence placed the incident, therefore, in June or July 2001.  The Federal Magistrate correctly described Mr Forozandeh’s process of identifying the date of the alleged incident.  In my view, that Mr Forozandeh could not accurately identify the date of the alleged incident when he made his complaint to HREOC, and that its date ‘evolved’ by the process described, were matters the Federal Magistrate could properly take into account.  It was reasonable to expect such an alleged incident could have been of considerable significance to Mr Forozandeh, and so one which he could place in time with some degree of accuracy.

8. The second reason of the Federal Magistrate is self-evident.  The Federal Magistrate did not criticise Mr Forozandeh for not adducing corroborative evidence.  It was accepted that the other person present, Mr Azimi, had died.  It is simply an observation about a state of affairs.

9. The third reason of the learned Magistrate is also uncontrovertible.  His Honour said it was a matter which he regarded ‘as extremely significant’.  During the period between June 2001 and the making of the complaint in June 2003, Mr Forozandeh had had extensive interaction with staff of Sky City.  He did not, on any occasion, ventilate his concerns in relation to the alleged incident.  He was removed from the Casino on 29 August 2001 and barred for a period of time.  He was also refused entry on 29 November 2001 for violation of a dress code.  He had a contentious discussion with Mr Davia about the fate of his membership application to the Grange Room on 11 June 2002, in circumstances where Mr Davia at least believed that he was threatened by Mr Forozandeh (although he was not really concerned by the threat).  Subsequently, he had a number of discussions with another staff member, Tammy Meuris (now the Manager of Security and Surveillance) regarding the incident on 11 June 2002, which continued until about May 2003.  In that period of time he had also had a lengthy interview with the General Manager, Greg Hawkins in November 2001.  He wrote to Mr Hawkins on 7 August 2002.  Through a Member of the Legislative Council, he had again written to Sky City on 23 April 2003 as a follow-up to his letter of 7 August 2002.

10. On none of those occasions did Mr Forozandeh make any complaint of having been discriminated against in June 2001 as he claimed in his complaint.  In his notice of appeal and in his contentions, Mr Forozandeh said that no weight should have been placed upon the absence of such a complaint over that period because there was no need for him to have made such a complaint direct to Sky City or its officers when he had another more formal means of making the complaint available to him.  That response does not meet the point that it was the delay in making the complaint, and not simply the fact that no complaint was made to Sky City, which the Federal Magistrate regarded as significant.  I agree with the Federal Magistrate that the delay of some two years between the occurrence of the alleged incident and the first report of, and complaint about it, is very significant.  If the alleged incident had occurred, it would be reasonable to expect it to prompt a quick complaint.  Moreover, as the evidence shows Mr Forozandeh was prepared to debate with officers of Sky City how he had been treated on other occasions, the fact that he did not report this alleged incident at all over that period when he had extensive and sometimes contentious discussions with them also tends to support the view that the alleged incident did not occur.

11. Those comments also apply to the fourth of the reasons for the Federal Magistrate’s conclusion.

12. The fifth reason is based upon the Federal Magistrate’s assessment of reliability of the evidence of Mr Davia.  His Honour ‘unreservedly’ accepted Mr Davia’s evidence.  That reflects a positive assessment of his reliability as a witness, after having the benefit of having seen Mr Davia give his evidence.  His Honour noted that, at the time of his evidence, Mr Davia was no longer an employee of Sky City, and by inference, that he was therefore not vulnerable to pressure to be other than truthful through a desire to maintain his job.  The Federal Magistrate also observed that there was no reason for Mr Davia to have made the alleged comments, because the terms for admission to the Grange Room, and Mr Forozandeh’s earlier conduct at the Casino, themselves provided an ample basis for declining him admission to the Grange Room.  The material provided at the hearing of the appeal by Mr Forozandeh included earlier Security Department reports concerning Mr Forozandeh’s behaviour of 5 February and 9 April 2001.

13. Mr Forozandeh sought to make something of an asserted inconsistency in what Mr Davia said in his evidence, and what he is recorded as having said in an interview with Jeff Yates (the Manager of Security Services) concerning the incident of 11 June 2002.  It was said that the inconsistency should have influenced the Federal Magistrate to take a different view about Mr Davia’s reliability as a witness.  Mr Yates did not himself give evidence, and his statement was not tendered in evidence.  In my view, the material referred to does not demonstrate error on the part of the Federal Magistrate.  In his evidence Mr Davia simply said that he could not recall having told Mr Yates certain things about the 11 June 2002 incident.  It was suggested that he told Mr Yates those things when providing a contemporary statement to him about it.  There is no direct evidence from Mr Yates that he did so.  The cross-examination simply went nowhere.

14. There was further a challenge to Mr Davia’s reliability because, according to the records, he had not reported the incident of 11 June 2002 to security until 19 June 2002.  Mr Forozandeh’s hypothesis was that Mr Davia had delayed reporting the matter for one week so that security film of the incident would have been destroyed.  That was denied by Mr Davia.  In the course of his evidence, Mr Davia said that he had earlier reported the incident to his then superior Mr Lawrence.  Mr Forozandeh suggested that that was recent invention to respond to the suggestion that he had deliberately delayed before reporting the 11 June 2002 incident.  The suggestion was based upon Mr Forozandeh’s claim that Mr Davia had not told Mr Yates that he had reported the incident to Mr Lawrence.  As Mr Yates’ statement did not come into evidence, there is no basis for that claim.  Mr Forozandeh also said Mr Davia had delayed giving that evidence until after Ms Meuris’ evidence.  There is no reason to think that Ms Meuris, who had been cross-examined before Mr Davia gave evidence, would have thrown any light on that question.  Nor was there any application by Mr Forozandeh to recall Ms Meuris for further questioning on that topic, or to have Mr Lawrence give evidence.  There is also nothing about the incident of 11 June 2002 which Mr Forozandeh suggests is directly relevant to his complaint of discrimination.  He does not assert that, on 11 June 2002, there was some exchange between himself and Mr Davia which would tend to prove that his complaint was properly founded.  It is therefore an incidental matter upon which the Federal Magistrate was entitled to place little weight in assessing Mr Davia’s credit. 

15. The next point raised by Mr Forozandeh was that a review of Mr Davia’s cross-examination, in particular certain parts of it to which he referred, would demonstrate his evidence was unreliable.  I have read that evidence carefully.  It does not, to my mind, indicate anything about Mr Davia’s manner of giving evidence, or his capacity to answer questions, that supports Mr Forozandeh’s contention.

16. Mr Davia did recall a conversation with Mr Forozandeh outside the Grange Room about Mr Forozandeh’s application to become a member of it.  That does not tend to support the conclusion that Mr Davia then made the alleged discriminatory remarks.  It is clear there were over time a number of conversations between Mr Davia and Mr Forozandeh.  Mr Forozandeh’s claim that the acknowledged conversation somehow supported his evidence, so that the Federal Magistrate erred in not taking it into account, is misconceived.

17. Mr Hawkins was also cross-examined about part of Mr Yates’ statement.  What Mr Forozandeh asserted, based on those parts of Mr Yates’ statement was not proved, so the answers to what transpired to be responses to hypothetical facts are of no real significance.  They do not provide any basis for not accepting Mr Hawkins’ evidence, much less that of Mr Davia.  Contrary to the contention of Mr Forozandeh, there is no conflict which emerges between the evidence of Mr Hawkins and Mr Davia by reason of that particular cross-examination of Mr Hawkins.

18. In my view, nothing has been identified by Mr Forozandeh to indicate that any of the reasons for the Federal Magistrate rejecting Mr Forozandeh’s claim that Mr Davia had refused him entry to the Grange room in about June 2001 by reason of his race, were misconceived.  So firmly were his Honour’s views held that he was satisfied that the alleged incident had not occurred. 

19. There were other matters raised by Mr Forozandeh on the appeal.

20. Mr Forozandeh pointed out that in the reasons for judgment of the Federal Magistrate, his Honour referred to the discussions between Ms Meuris and Mr Forozandeh in 2002 and 2003, and at one point said that they ‘spoke on occasions throughout August and September 2003’.  The only evidence was that the last such discussion took place on about 30 May 2003.  The paragraph immediately following that reference, however, refers to those conversations as having continued only to May 2003, and it then noted that on 26 June 2003 a common law barring notice was served upon Mr Forozandeh.  His Honour then identified the significance of those conversations as being the absence of any reference at all to the alleged incident of discrimination.  In my view, the reference to August and September 2003 is simply a factual mis-description.  The immediately succeeding passages in the reasons indicate that.  More importantly, whether the last of their conversations was in May 2003 or September 2003, the fundamental point was that no complaint of the alleged discriminatory conduct was made to Ms Meuris at all during their conversations when Mr Forozandeh had ample opportunity to raise it.

21. Mr Forozandeh asserted a factual error in the Federal Magistrate’s reference to the incident which occurred on 29 November 2001.  The alleged factual error is in reality no more than a reference to certain evidence.  There was disputed evidence as to whether Mr Forozandeh used bad language and became aggressive on that occasion.  Mr Forozandeh has pointed to some evidence in support of his claim that he did not then become aggressive or use bad language.  In any event, the disputed factual material does not matter.  What happened on that occasion was not directly in issue in the present proceedings.  The Federal Magistrate said that he did not come to a conclusion as to precisely what occurred on that occasion, other than that there was ‘some level of dispute’ which was subsequently the subject of further discussion between Mr Forozandeh and employees of Sky City.

22. Mr Forozandeh also contended that the judgment does not accurately record Ms Meuris’ evidence of a meeting of 22 July 2002 with Mr Forozandeh.  His Honour records that the alleged incident of racial discrimination was not raised at that meeting, and that Mr Forozandeh did not suggest in cross-examination that it was raised.  I have examined the transcript references to which Mr Forozandeh refers.  In my view, they do not advance Mr Forozandeh’s appeal.  They refer to passages where Ms Meuris denied that the Licensing and Gambling Commissioner, when investigating the barring of Mr Forozandeh following the 29 August 2001 incident, asked Mr Davia to respond to the alleged incident of racial discrimination or that, in her presence, Mr Forozandeh raised that matter at that time.  There is nothing in the records of the Commissioner drawn to my attention to suggest that Mr Forozandeh did so.  The significant thing is that Ms Meuris, over a long period of contact, did not hear Mr Forozandeh make the complaint or assertion of racial discrimination.  Hers was but one piece of uncontradicted evidence that, for a period of nearly two years until his complaint to HREOC, Mr Forozandeh made no complaint to officers of Sky City (or, on the evidence, to anyone else) about the alleged discrimination when he might have been expected to have done so.

23. Finally, I note that Mr Forozandeh at a directions hearing on 5 April 2006, suggested that one of his grounds of appeal would be that the hearing before the Federal Magistrate had been conducted in such a way as to impair his opportunity to present evidence which he wished to adduce.  He said he would need to examine the transcript to identify the occasions when that occurred.  The transcript of that hearing (which extended over some time) was procured and made available to Mr Forozandeh to examine.  On the hearing of the appeal, that matter was not advanced as a ground of appeal.

24. In oral submissions, Mr Forozandeh did complain that he had been served with a book of proposed witness statements by Sky City.  Not all those witnesses ultimately were called to give evidence.  Mr Forozandeh did not himself apply to re-open his case by calling any of the persons whose statements he had received, but were not called.  Nor did he seek to lead any evidence in rebuttal.  In those circumstances, I do not consider that he has made out any claim that he did not have a proper opportunity to adduce evidence at the hearing or to make submissions.

    CONCLUSION

1. For those reasons, I consider that the appeal should be dismissed.  Mr Forozandeh should pay the costs of Sky City of the appeal. 

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield J.

Associate:

Dated:             24 July 2006

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	B Austin
Solicitor for the Respondent:	Minter Ellison
Date of Hearing:	13 June 2006
Date of Judgment:	25 July 2006