Grogan v First Rate Leisure Pty Limited - [2007] NSWADT 294

CITATION: Grogan and ors v First Rate Leisure Pty Limited and ors [2007] NSWADT 294

DIVISION: Equal Opportunity Division

PARTIES:
FIRST APPLICANT
Brett Grogan
SECOND APPLICANT
Tony Grogan
THIRD APPLICANT
Wayne Weldon
FOURTH APPLICANT
David Dargin
FIFITH APPLICANT
Theresa Towers
SIXTH APPLICANT
Kristine Bamblett
FIRST RESPONDENT
First Rate Leisure Pty Limited
SECOND RESPONDENT
Hugh Halpin
THIRD RESPONDENT
Damian Terrence O'Reilly
FOURTH RESPONDENT
Knightland Home Security Pty Limited

FILE NUMBER: 051054, 051055, 051095, 051096, 051097, 051098

HEARING DATES: 29 January 2007, 30 January 2007, 31 January 2007, 1 February 2007, 2 February 2007, 26 March 2007, 27 March 2007, 26 June 2007, 27 June 2007, 28 June 2007

SUBMISSIONS CLOSED: 28 June 2007

DATE OF DECISION:
13 December 2007

BEFORE: Ireland G - Judicial Member; Weule B - Non Judicial Member; Schneeweiss J - Non Judicial Member

CATCHWORDS: Race Discrimination - Goods and Services - Victimisation

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004
Anti-Discrimination Act 1977Liquor Act 1982

CASES CITED: Tupou v Scruffy Murphy’s Pty Ltd & Ors [2007] NSWADT 192

REPRESENTATION:
M Tibbey, counsel
N Poynder, counsel (First, Second, Third Respondents)
A Mooney, counsel (Fourth Respondent)

ORDERS: 1. The complaint of unlawful discrimination on the ground of race is substantiated against the first respondent and against the fourth respondent.; 2. The first and fourth respondents are to pay to each applicant within 21 days, the sum of $15,000, for which the first and fourth respondents are severally liable.; 3. Within 28 days, if the parties are unable to agree as to what orders as to costs are to be made in the proceedings, any one or more of the parties may apply for a hearing for the Tribunal to determine what orders as to costs, if any, should be made in these proceedings.

REASONS FOR DECISION

Nature of complaints

1 The six applicants lodged complaints against the first respondent at various dates between July and August 2004. The complaints alleged that the first respondent unlawfully discriminated against each applicant in the provision of goods and services on the ground of their Aboriginal race.

2 The applicants raised a complaint of racial vilification against each of the respondents for the first time in the Points of Claim filed with the Tribunal on 20 June 2006.

3 In 2006, the first respondent made an application to the Tribunal under s 67(4) of the Administrative Decisions Tribunal Act 1997 (ADT Act) seeking an order for the joinder of the fourth respondent. The Tribunal granted the application on 18 May 2006.

4 No application had been made to the Tribunal for the joinder of the second and third respondents. These parties were included as respondents in the Points of Claim filed by the applicants on 20 June 2006. The implications of this process by the applicants will be dealt with later in this decision.

Issues of jurisdiction

5 The Tribunal, in its deliberations for this decision, had become aware for the first time of several aspects affecting the jurisdiction of the Tribunal which have not been raised by the parties but which are of such a fundamental nature, the Tribunal is required to consider and determine the issues before proceeding further with its decision.

6 The Tribunal must deal accordingly with the following jurisdictional aspects.

Complaint of vilification

7 An examination of the respective reports made by the Anti-Discrimination Board (the Board) to the Tribunal in relation to the complaints of discrimination, relate only to a claim of unlawful discrimination against the first respondent. A claim of racial vilification against the first respondent, or against any of the other respondents, was not included in the reference of the complaints from the Board to this Tribunal. The Tribunal has authority to deal only with such complaints as are referred to it by the Board. It is curious that the first formal reference to a complaint of racial vilification was the inclusion by the applicants in their Points of Claim filed with the Tribunal on 20 June 2006. It is not clear from the manner in which that complaint is phrased whether the complaint is made against each or only some of the parties who are listed as parties on the first page of the Points of Claim. As noted earlier, this was the first occasion on which any formal reference had been made to the inclusion of the second and third respondents as a party to the complaints. The circumstances become more curious as none of the parties during the hearing or in their submissions has referred to this jurisdictional problem. The Tribunal however, cannot ignore the issue as, without a complaint being properly brought before it, the Tribunal has no jurisdiction to determine that complaint.

8 Until 2 May 2005, the better view, in the opinion of the Tribunal, was that the Tribunal had no power to add a complaint which had not been referred to it by the Board, no matter how compelling the facts brought out at the hearing demonstrated the likelihood of a finding by the Tribunal to uphold such an additional complaint. On 2 May 2005, the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 No. 79 (the Amending Act), commenced. Section 103(1) of the Amending Act authorises the Tribunal, on its own motion at any stage in the proceedings, to amend the complaint. By sub-section 2 of s 103, the Tribunal may amend a complaint by including additional complaints. The transitional provisions to the Amending Act (Schedule 1, Part 5, Section 14(1) and (2) provides with some exceptions that the amendments contained in the Amending Act apply to complaints made, but not finalised, before the commencement of the Amending Act. In the result, the Tribunal in this matter, on its own motion, has the discretion at this stage in the proceedings to allow the additional complaint of vilification to be determined by the Tribunal.

9 Although the respondents have not raised objections to the Tribunal determining the complaint of racial vilification, the Tribunal, if it is to exercise its discretion under s 103 to add that complaint, must be satisfied that there is justification for the inclusion of the complaint. The aspects of this matter which would influence the Tribunal’s discretion are, firstly, that in the final submissions to the Tribunal, the applicant indicated that it was not seeking from the Tribunal separate awards of compensation if there should be findings both of racial discrimination and racial vilification against any one or more of the respondents. The applicant nevertheless required that there be findings by the Tribunal, that the actions of each of the respondents constituted racial vilification of each of the applicants. The applicants’ submissions sought to demonstrate the elements constituting racial vilification under s 20(C) of the Anti-Discrimination Act 1977 (the Act) were established by the evidence before the Tribunal.

10 Secondly, the circumstances giving rise to the claim of unlawful racial discrimination of the applicants, are the same circumstances which it is claimed give rise to the allegations of unlawful racial vilification. These circumstances will be related later in this decision. It is sufficient for present purposes for the Tribunal to determine that it is not satisfied that the evidence supporting the claim of unlawful racial vilification is sufficient to satisfy it, that such a serious charge is established by that evidence. In particular the Tribunal is not satisfied that the evidence demonstrates in relation to any one of the applicants, after taking into account that the circumstances were not identical in respect to each applicant, that there was a public act within the definition in s 20(B) or that in respect to any of the applicants the circumstances would have incited hatred towards or serious contempt for or severe ridicule of any one of the applicants. The Tribunal is not satisfied that if it were to exercise its discretion and allow the inclusion of a complaint of unlawful racial vilification, that such a complaint has a reasonable chance of success. The Tribunal, accordingly, declines to exercise its discretion under s 103 of the Amending Act. In the result a complaint of unlawful racial vilification is not a complaint that is before the Tribunal for determination.

Second and Third Respondents

11 As referred to in the opening comments to these reasons, neither Mr Halpin nor Mr O’Reilly, the second and third respondents, were included by the Board as parties against whom the Board had referred to the Tribunal, the complaints of racial discrimination. The first occasion on which these two parties were encaptured in the proceedings was in the applicants’ Points of Claim filed with the Tribunal on 20 June 2006. The mere inclusion in this manner of additional parties is not appropriate. Additional parties can only be added as respondents to a complaint through the processes prescribed in either the Act or in the ADT Act. At the time these complaints were brought to the Tribunal by the Board, the appropriate process for the joinder of a party was through the mechanism provided in s 67(4) of the ADT Act. That sub-section empowers the Tribunal, either on its own motion or on the written application of a person, to make a person who was not a party to the proceedings, an additional party, if it is satisfied that the interests of the person is likely to be affected by the Tribunal’s decision. No such application was made to the Tribunal under this provision for the inclusion of either Mr Halpin or Mr O’Reilly as additional parties to the proceedings. Again, it is curious that at no stage in the hearing have any party raised the issue of the lack of jurisdiction in the Tribunal to make findings or orders against Mr Halpin or Mr O’Reilly, as a result of the failure to make an application for their joinder to the proceedings.

12 Section s 67(4) of the ADT Act is silent as to the stage in the proceedings at which the Tribunal, on its own motion, may add additional parties. This provision can be compared with s 103 of the Act which expressly provides that the Tribunal may add additional complaints ‘at any stage of the proceedings.’ There are good reasons, even at this late stage in these proceedings, for the proper joinder as parties of Mr Halpin and Mr O’Reilly. Serious allegations are made against both Mr Halpin and Mr O’Reilly, claiming that they each aided and abetted, in terms of s 52 of the Act, the unlawful acts of racial discrimination against the applicants, that are alleged in the complaints. The applicants seek orders for compensation and other remedies against both Mr Halpin and Mr O’Reilly. It is important that both Mr Halpin and Mr O’Reilly be given every opportunity to defend those claims and to have their evidence and submissions on their behalf duly considered by the Tribunal. In fact, in the events that have occurred, that evidence and those submissions have been put to the Tribunal, and will subsequently, in this decision, be duly considered. In addition, it is important in the interests of Mr Halpin and Mr O’Reilly, that the Tribunal be in a position to make a determination on the merits or otherwise of the allegations against them.

13 It is for these reasons that the Tribunal has determined that this is an appropriate occasion on which the Tribunal should exercise its discretion under s 67(4) of the ADT Act and order, formally, that Mr Hugh Halpin and Mr Damian Terrence O’Reilly, be added as parties as the second and third respondents respectively in these proceedings.

Is the Fourth Respondent the proper party to the proceedings?

14 This is another situation where none of the parties in the proceedings have brought this issue before the Tribunal or made submissions in relation to it. As the circumstances could have a material impact on the outcome of the proceedings, it is necessary for the Tribunal to give the situation as much consideration as is possible from the evidence. The situation referred to is the question whether Knightland Home Security Pty Ltd, the company named as the fourth respondent, is the company that would bear responsibility for the allegations made against it arising out of the complaints of unlawful racial discrimination.

15 The evidence establishes that on or about 2 October 2002, the first respondent took over the running of the Sydney Junction Hotel (SJ). At that time a company in the group of companies of which the fourth respondent is now one, namely, Knightland Pty Ltd, contracted with the previous owners of SJ to supply security services to the hotel. On the change of ownership no formal contractual steps were taken between the first respondent and Knightland Pty Ltd to enter into a new formal written agreement. Knightland Pty Ltd continued to supply security guards and other security services to SJ under its new ownership. This contractual situation between the first respondent and Knightland Pty Ltd continued until 2 March 2004 on which date an administrator was appointed to Knightland Pty Ltd. An extract of the records of ASIC was produced to the Tribunal. The extract includes a reference to the lodgment of a Deed of Company Arrangement on 12 March 2004. Mr Neville Reid, a principal of the fourth respondent (his evidence will be referred to in detail later) stated that a Deed of Company Arrangement was entered into between the administrator of Knightland Pty Ltd and the fourth respondent under the terms of which the fourth respondent acquired the interests of Knightland Pty Ltd. Mr Reid merely referred to the acquisition of ‘interests’. Through the period from February 2004 to the dates on which it is alleged the acts of racial discrimination occurred, 15 May 2004 and 16 May 2004, security guards were supplied regularly to SJ by the Knightland Group.

16 A matter of concern to the Tribunal is the question whether on the dates of the alleged unlawful discrimination, the security guards supplied to SJ were supplied by the fourth respondent or supplied through the administration of Knightland Pty Ltd. None of the parties has raised this question of whether Knightland Home Security Pty Ltd is the correct respondent to these proceedings. Although the evidence is scant on the question, the Tribunal accepts that Knightland Home Security Pty Ltd was supplying security guards to SJ on the night of 15 and 16 May 2004 on a valid contractual basis.

Factual Background and Findings of Unlawful Discrimination

17 On the night of 15 May 2004 at approximately 11.00pm and in the early hours of 16 May 2004 at approximately 1.00am, two groups of Aboriginal people sought admission to SJ which, in the evenings operated as a nightclub at which in some parts of the premises music was played by a DJ and in another part of the premises live bands performed. These performances attracted large numbers of patrons especially on the weekend nights, i.e. the Friday, Saturday and early morning on the Sunday of each weekend.

18 The weekend of 15 and 16 May 2004 was especially significant to the Aboriginal community. On Saturday 15 May 2004, a ‘March for the rights of Aboriginal People’ convention was held at Civic Park, Newcastle. The event attracted large numbers of the Aboriginal community, not only local Aboriginal people but also Aboriginal people from other regional areas. SJ was situated in the Newcastle suburb of Merewether. On the evening of 14/15 May 2004, a total of 2,872 patrons were recorded by the security guards as entering the entrance doors of SJ. The patron count number does not represent the number of individuals entering through the doors but it records the number of times persons entered the doors. On the night of 15/16 May 2004, the total entries through the door was 4,382 patrons. These numbers indicate that the establishment attracted a large clientele and on numbers alone would represent a difficult management issue for the safety and control of the operations at the hotel and the patrons attending the functions at the nightclub.

19 The applicants, Wayne Weldon and his partner, and mother of his children, Kristine Bamblett, together with Theresa Towers and David Dargin comprised the first group of the applicants who sought entry to SJ at approximately 11.00pm on 15 May 2004. The second group of applicants comprised Mr Brett Grogan and his cousin, Dr (medical) Tony Grogan. That group also included Mr Bill Gibson and Mr Nigel Welsh, two Aboriginal men who had also made complaints to the Board of racial discrimination. The complaints of Mr Gibson and Mr Welsh were settled prior to the hearing. The second group arrived at SJ at approximately 1.00am on the morning of 16 May 2004.

20 Each of the applicants alleged that the security guards at the entrance door to SJ unlawfully discriminated against them by either directly refusing their entry into the hotel or, in the case of Kristine Bamblett and Theresa Towers, they were initially allowed through the door but when they saw their friends refused admission, they went back outside to see what was occurring and either they decided to leave with their male companions or, in one instance, were refused re-entry.

21 The first, second and third respondents admitted that in the circumstances relating to the refusal of entry to the applicants Wayne Weldon, Brett Grogan and Dr Tony Grogan, the refusal constituted discrimination under s 7(1)(a) of the Act.

22 In the case of David Dargin, the first three respondents submitted that as he was not directly refused entry into the premises and as he voluntarily chose not to persist with his intention of entering the premises as his friend Mr Weldon had previously been refused admission, Mr Dargin had not suffered discrimination under that sub-section of the Act or at all. The Tribunal does not accept this submission. Although Mr Dargin was not directly spoken to by a security guard or directed not to enter the premises, Mr Dargin withdrew from the queue of persons waiting to enter the premises when he saw his friend Mr Weldon refused admission. Mr Dargin went with Mr Weldon and they stood apart from the people in the queue and they spoke to the security guard Mr Brett McLean who had refused Mr Weldon’s admission. Mr McLean apologised to Mr Weldon for having to refuse his admission and told him he was acting on instructions from the management of the hotel and said that there was nothing he could do about it and that his instructions were to refuse admission to all Aboriginal people. In those circumstances it was a natural reaction for another Aboriginal person, namely Mr Dargin, to understand that his admission to the premises would also be rejected if he persisted by standing in the queue and seeking admission. This constitutes, in effect, a constructive refusal of admission in the absence of a direct refusal to Mr Dargin. The Tribunal is satisfied that the evidence establishes that in the circumstances applicable to Mr Dargin who decided not to persist to seek entry to the premises when he heard that the security guard was refusing admission to all Aboriginal people that those circumstances constituted racial discrimination under s 7(1)(a) of the Act.

23 In relation to Kristine Bamblett, she attended the premises of SJ in company with Mr Weldon. She had a de facto relationship with Mr Weldon. She was one of a group that came together to SJs. The group comprised Mr Weldon, Ms Bamblett, Theresa Towers, Jenny Towers, Yvonne Towers and females called Christine, Lisa and Shannon. Shannon and Lisa are not Aboriginal people. The rest of the group were Aboriginal people. The group approached SJs at about 11.00pm on 15 May 2004. The occasion was the first time that Mr Weldon had a night out in Newcastle having only recently moved from Gilgandra. It took the group approximately 30 minutes in the queue to reach the front of the line for admission. Each of the other women were admitted but Ms Bamblett waited with Mr Weldon outside before the first security guard said ‘You’re right to go in’ but before they reached the door a second security guard tapped Mr Weldon on the shoulder and told him would he please step to the side. Ms Bamblett then walked back to where Mr Weldon and the second security guard were standing. This guard explained that there was a problem and that he was not able to allow any Aboriginal people in to the premises and he stated that it was on ‘orders from management. There was a problem on Friday night with a group of Aboriginal people.’ He said ‘It is the wrong thing to do. Management shouldn’t be doing it.’ This second security guard was subsequently identified as Mr Brett McLean. The evidence of other witnesses stated that Ms Bamblett in fact entered through the door and she immediately turned around and when she saw that Mr Weldon was not coming behind her, she went back through the door to where Mr Weldon was talking to Mr McLean.

24 A conversation then took place between Marguerite Hall, the supervising guard who had then come to join Mr Weldon, Ms Bamblett and Mr McLean. Ms Bamblett said that Ms Hall made the same sort of statements that Mr McLean had made. This group was then joined by the other six females who had previously gone through the door and came out to join the group talking to Mr McLean and Ms Hall. Ms Bamblett said that Mr McLean then said ‘It is not our fault. It is an order from management’ and he added ‘If you want to go to court I will be a witness for you.’

25 Mr Weldon then became upset and said ‘I’ve had enough. I’m sick of this.’ He walked away towards the railway line and Ms Bamblett and the rest of the group followed him. Mr McLean also followed them and tried to call them back and said ‘It’s not my fault. I understand where you’re coming from.’ Ms Bamblett stated that the incident took place over a period of approximately one hour.

26 In the circumstances described by Ms Bamblett, the first, second and third respondents submitted that as she was in fact admitted to the premises, it could not be stated that she was refused entry. It is the view of the Tribunal that her situation is not dissimilar to the situation of Mr Dargin who also was not directly refused admission. The fact that Ms Bamblett physically went through the entrance door is not in itself sufficient to substantiate the respondents’ position that the circumstances did not constitute racial discrimination. When her de facto husband, Mr Weldon, who was following immediately behind her was refused admission, it is reasonable to expect that Ms Bamblett, although allowed through the door, would wish to rejoin her husband and to accompany him away from the premises. The refusal of admission to Mr Weldon was tantamount to a revocation of the act of admission of Ms Bamblett and in the view of the Tribunal constitutes racial discrimination under the provision of s 7(1)(a) of the Act.

27 In the case of the remaining applicant, Ms Theresa Towers, her situation is not dissimilar to the circumstances relating to Ms Bamblett. Ms Towers was admitted through the entrance door of SJ and she went further into the premises before she realised that Ms Bamblett and Mr Weldon were outside. Ms Towers then went back outside to join Mr Weldon and Ms Bamblett and in so doing she was accompanied by the other group of females who comprised the group that approached SJs. As was the case with Ms Bamblett, when Ms Towers understood that Mr Weldon was refused admission and that her friend Ms Bamblett was upset and concerned that Mr Weldon was not being admitted and that the two of them were leaving, she also became upset and decided that she would not seek to go back into the premises of SJ. The Tribunal takes the same view as it did in relation to Ms Bamblett’s circumstances. The refusal of admission to one of the members of the group who wished together to enjoy together a night out at the SJ nightclub, in circumstances where that refusal related to the Aboriginality of Mr Weldon, was, a constructive refusal of entry to each of the members of that group and on realisation that the refusal on those grounds had been made to Mr Weldon, the decision of Ms Towers and the other females to exit the premises and leave with Mr Weldon and Ms Bamblett was, in effect, a revocation by the security guards of their decision to originally allow Ms Towers to enter the premises.

28 No submissions were made by counsel for the fourth respondent concerning the issue of whether the circumstances as described did not constitute racial discrimination.

29 The Tribunal accordingly finds that in relation to each of the six applicants, the security guards directly subjected them to racial discrimination under s 7(1)(a) of the Act.

30 To be rendered unlawful the racial discrimination, in the circumstances of these complaints, must have occurred in the provision of goods and services in terms of s 19 of the Act. That section renders it unlawful for a person who provides goods and services to discriminate against another on the grounds of race by refusing to provide the person with those goods and services or in the terms on which the other person is provided with those goods and services.

31 In the case of each of the applicants, the provision of goods and services for the purposes of s 19 of the Act was the provision of entry into the premises of SJ for the purposes of entertainment, recreation or refreshment. In the case of each of the applicants, Wayne Weldon, Brett Grogan and Tony Grogan, they were seeking the provision of such services at the time of and in relation to their attempts to enter the premises. In the case of Mr Dargin, Ms Bamblett and Ms Towers, they were not directly refused entry and therefore not directly refused access to those services. They were discriminated against in the terms of which they were provided with those services as it was a condition of their entry that their friend Mr Weldon be refused entry on the grounds of his Aboriginality.

32 The factual circumstances in which each applicant was refused entry to the premises of SJ, constituted unlawful racial discrimination against each of them. Those acts of unlawful discrimination were perpetrated by the guards on duty at the times at which the refusal of entry occurred. The evidence identifies the relevant guards as Mr Brett McLean, a security guard, Mr Matthew Greentree, a security guard, Mr Leighton Wingrove, a security guard and Ms Marguerite Hall, a supervisor security guard. Each of those guards were on duty at SJs during the relevant periods in which the act of discrimination occurred. Each of those guards were, for the purposes of these complaints, employed by the fourth respondent. Under s 53 of the Act, the fourth respondent is vicariously liable for the unlawful discriminatory acts of its employees unless it can be demonstrated that it did not, either before or after those acts, authorise the doing of the act or under sub-section 3 of s 53, it took all reasonable steps to prevent its employees from contravening the Act.

33 In addition, it is alleged by the applicants that the security guards in perpetuating the unlawful discrimination acted on the instructions of the night manager at SJs, who on the evening of 15 May 2004 at approximately 8.30pm verbally instructed Marguerite Hall and Mr McLean that on that night they were to refuse entry to all Aboriginal people. It is further alleged that in carrying out instructions of the night manager, Mr Joshua Tout, the agents were acting in accordance with the contract between the first respondent and the fourth respondent under the terms of which, and in accordance with the practice adopted between them, the security guards were to take instructions each night from the night manager as to the security services that were required and the manner in which those services were to be carried out. If this allegation is substantiated, Mr Tout, under s 52 of the Act, would be held to have aided and abetted the unlawful conduct of the security guards employed by the fourth respondent. As a further consequence, the first respondent, as the employer of Mr Tout, under s 53 of the Act, would have vicarious liability for the contravention of the Act arising out of Mr Tout’s aiding and abetting of the unlawful conduct.

34 In addition, the applicants allege that in giving the instructions to the security guards for the refusal of entry of all Aboriginal people on the night of 15 May 2004, Mr Tout was acting on instructions from the directors and shareholders of the first respondent, namely, Mr Halpin and Mr O’Reilly. If this allegation is substantiated, the consequence is that Mr Halpin and Mr O’Reilly also aided and abetted the unlawful conduct of Mr Tout and as a further consequence, the first respondent is liable for the unlawful conduct of its principals, Messrs Halpin and O’Reilly.

35 The core of the disputes before the Tribunal and the thrust of the evidence related to the issue as to which of the respondents or whether all of the respondents bore liability for the acts of unlawful discrimination against the applicants and if more than one of the respondents is liable, in what manner should that liability be directed amongst them, i.e. is their respective liability joint or several or joint and several.

36 These are the issues which will now be addressed.

Conflicts in the evidence relating to Issues of Liability

The evidence of Mr Neville Reid

37 In determining the issue of liability of the respondents, the Tribunal is faced with a number of unusual circumstances relating to aspects of the evidence and to resolving conflicts between the evidence of various witnesses in material aspects of the evidence.

38 The Tribunal finds that the circumstances relating to the preparation and presentation of witness statements prepared on behalf of the fourth respondent were of a confounding and worrying nature. For the hearing days up to 27 March 2007, the fourth respondent was represented by its solicitor, Mr Craig Olsen. Mr Olsen personally appeared to represent the fourth respondent in the joinder application that was considered and determined by the Tribunal on 18 May 2006.

39 At the hearing of the complaints commencing on 19 January 2007 until 26 March 2007, the fourth respondent was represented by Mr Mooney of counsel. On the morning of 27 March 2007, Mr Mooney informed the Tribunal that he was in difficulty in continuing with his representation as his instructing solicitor, Mr Olsen, had given notice that morning that he was withdrawing from representing the fourth respondent and would take no further part in instructing Mr Mooney. As a consequence, Mr Mooney was unable to continue with the matter on either 27 or 28 March 2007. On the morning of 27 March 2007 the Tribunal, on the application of Mr Mooney, decided that the hearing should be adjourned until the next available date, namely 26 June 2007. On that date Mr Healey announced his appearance on behalf of the fourth respondent. On the morning of 27 March 2007, Mr Mooney was unable to give any explanation to the Tribunal for the withdrawal of Mr Olsen from further representation of the fourth respondent. The Tribunal accepted the position without any further inquiry as to Mr Olsen’s circumstances.

40 As will appear later in this decision, on the afternoon of the preceding day, namely 26 March 2007, Mr Reid, a principal of the fourth respondent, during cross-examination, stated that an original document which he had failed to annex to a statement exhibited to the Tribunal, stated that the original was held by Mr Olsen. Mr Olsen informed the Tribunal through Mr Mooney that in fact he did not hold that original document. This caused Mr Reid some consternation as he subsequently informed the Tribunal that the document had been lost. These reasons will show the significance of the failure to produce the original document to the Tribunal.

41 Mr Reid, who described his position as Executive Consultant of the fourth respondent, is a former policeman who had spent 17 years in the Police Service. A number of the witnesses who provided supporting evidence for the fourth respondent were also former policemen and were friendly with Mr Reid. The evidence of Mr Reid was the most material evidence given to the Tribunal on behalf of the fourth respondent. It was clear from his evidence that he had the full control of the operations of the fourth respondent at all material times. In the view of the Tribunal his description of his position as Executive Consultant was misleading. He had the authority to hire and fire staff, evidenced by his firing of the guard, Mr Brett McLean on 17 May 2004 immediately after the incidents on the previous weekend. Mr Reid maintained an office at the premises of the fourth respondent. Although he was not de jure a director of the fourth respondent, he in all other respects acted as an Executive Director. He had immediate access to the records of the fourth respondent. The files that were still in the custody of the fourth respondent were kept in Mr Reid’s office.

42 Mr Reid exhibited in his evidence to the Tribunal four sworn statements. He supported the evidence in these statements with further substantial amounts of oral evidence. Each sworn statement was prepared by Mr Reid without the assistance of Mr Olsen. In the case of each affidavit, Mr Olsen witnessed Mr Reid’s signature by taking Mr Reid’s oath and signing the statements as a Justice of the Peace. In relation to a number of the other sworn statements exhibited in evidence to the Tribunal by other witnesses called on behalf of the fourth respondent, the sworn statements were typed by Mr Olsen, often in the office of Mr Reid, and Mr Olsen took the oaths of the deponents to those statements and Mr Olsen signed the jurat to the statements in his capacity as a JP. The Tribunal finds it curious that a person who is a solicitor could, at the same time, hold the position of a Justice of the Peace and administer oaths and sign sworn statements as a Justice of the Peace. A solicitor has authority to take oaths and witness affidavits and sworn statements but would be obliged to sign the jurats to those documents in his or her capacity as a solicitor. It is also noteworthy that it is not the practice of solicitors to take oaths and to witness as a solicitor, sworn statements or affidavits which had been prepared by the solicitor. The act of a solicitor witnessing a sworn document prepared by the solicitor means that the process loses the context of a solemn formality where an independent person administers the oath and completes the jurat to the document. That process brings home more emphatically to the deponent the solemnity and seriousness of the deponent swearing to the accuracy and truthfulness of the document which the deponent has sworn.

43 Whatever may have been the reason for Mr Olsen’s withdrawal from his representation of the fourth respondent on the morning of 27 March 2007, the Tribunal is not able and does not draw any adverse inference towards the fourth respondent and the evidence of its witnesses arising out of that action by Mr Olsen. However, the manner in which Mr Olsen participated in the preparation or completion of written statements of some witnesses, and in the absence of any explanation for that conduct, where the veracity of those statements is in question, weight is added to the Tribunal’s concerns as to the reliability of those statements where the statements conflict with the evidence of other witnesses. As will be seen, the Tribunal has come to the conclusion that in the case of Mr Reid’s evidence and the evidence of some of the supporting witnesses called by the fourth respondent, that evidence is at best, unreliable. In some cases the Tribunal has serious doubts that some of the evidence of the fourth respondent’s witnesses was contrived and deliberately misleading. When considered in the context of the manner in which those statements were prepared and completed, doubt as to the veracity of the evidence of those witnesses is increased. The Tribunal has approached its examination of the conflicts in material aspects of the evidence, by taking into account, where appropriate, the concerns of the Tribunal as to the nature of some of the evidence presented to it by the fourth respondent.

44 The evidence of the fourth respondent was directed to demonstrating that from about September or October 2003, the attitude of the principals of the first respondent, that is, Mr Halpin and Mr O’Reilly, was increasing the pressure on the security guards employed by the fourth respondent, to ban Aboriginal people from SJ.

45 Mr Reid stated that he had a meeting in September or October 2003 with Mr Halpin. He said the purpose of that meeting was to express his concern to Mr Halpin about the pressure on his guards and to emphasise to Mr Halpin that he would not permit his guards to discriminate against Aboriginal people. Mr Reid stated that at that meeting Mr Halpin made disparaging remarks about Aboriginal people. Mr Reid stated that Mr Halpin said to him words to the effect ‘I can’t keep letting the blacks in there ruining my business. I know what you’re saying but enough is enough.’ In his evidence Mr Halpin was not asked questions either directly or in cross-examination concerning this meeting nor was he asked if he had made the disparaging remarks alleged by Mr Reid.

46 Mr Reid next alleged that in early 2004 he attended a meeting at SJs to which, at his suggestion, the leading members of the Nomads bikie group had been invited. The purpose of the meeting was to discuss with the Nomads the policy of the first respondent to clean up the image of SJs so that there is a less threatening attitude within the nightclub especially when members of the Nomad group were present. Mr Reid stated that a meeting was held in an afternoon with two leaders of the Nomads. He stated that he did not take part in the discussion and that the discussion took place between the two Nomads leaders and Mr O’Reilly. As a consequence of the meeting, the Nomads presented with more correct dress attire when they did attend but they subsequently took their patronage away from SJs to a neighbouring hotel. Mr Reid stated that he invited to the meeting Mr John Farmer and Mr Gregory Hargreaves. Mr Farmer and Mr Hargreaves were friends of Mr Reid. Mr Farmer had been a former member of the Police Force for a period of 16 years. Mr Farmer had assisted Mr Reid in the preparation of some of the sworn statements that were exhibited by witnesses to the Tribunal. Mr Hargreaves was also formerly a member of the Police Force and at the time of the hearing before the Tribunal, Mr Hargreaves was a business associate of Mr Reid in relation to the business of the fourth respondent.

47 At the meeting both Mr Farmer and Mr Hargreaves did not participate in the discussions between Mr O’Reilly and Mr Reid and the representatives of the Nomads. The Tribunal accepts Mr O’Reilly’s statement that Mr Reid participated in the discussions. After the meeting was concluded and the representatives of the Nomads had left the premises, Mr O’Reilly, Mr Reid, Mr Farmer and Mr Hargreaves met for a drink at SJs and they discussed what had taken place at the meeting with the Nomads. Shortly after 7.00pm Mr Halpin arrived at SJs and joined the group. Again Mr Reid stated that Mr Halpin made derogatory remarks about Aboriginal people and Mr Reid stated that Mr Halpin said words to the effect ‘Nev, now we’ve got to get rid of those cunts, all you have to do now is get rid of those fuckin black cunts and crows (prostitutes).’ Mr Reid stated that later Mr Halpin said ‘You know why should a business have to put up with this shit. You should be able to stop black cunts like those over there if you don’t want them in your pub. I invested a lot of money and look what I have to put up with. Discrimination is a lot of shit.’

48 In their evidence, Mr Farmer and Mr Hargreaves stated that the meeting took place early in the year 2004. Mr Farmer stated that it took place in May 2004 and Mr Hargreaves stated that it took place ‘sometime in early 2004.’ Both witnesses confirmed that they heard Mr Halpin making remarks similar to those related by Mr Reid. Mr O’Reilly did not participate directly in that discussion. He was busy attending to other matters in the premises but he stated he was within earshot of the discussions between the other four persons.

49 Both Mr Halpin and Mr O’Reilly in their evidence denied that Mr Halpin had used the words attributed to him by Mr Reid. Mr Halpin said that he never uses the type of language that Mr Reid said he used on that occasion, nor did he have the negative attitude towards Aboriginal people which is suggested by Mr Reid’s descriptions.

50 The attempt by Mr Reid, supported by Mr Farmer and Mr Hargreaves, to place the meeting with the Nomads sometime early in 2004, cannot be correct. Mr Halpin and Mr O’Reilly place that meeting soon after they took over ownership of the hotel in October 2002 – sometime within 6 weeks of that date. They stated that the purpose of the meeting was to enable them to get better control of the clientele attending the premises and to make the premises more acceptable and presentable to patrons. It is more likely that they would want to achieve these results as early as possible. It is not likely that they would leave it until 2004 to approach the Nomads.

51 To support parts of his evidence, Mr Reid annexed to his first statement, which was sworn on 30 March 2006, original handwritten notes which he stated he made contemporaneously with relevant events affecting SJ. The notes comprise four pages. The first item on the first page is a short notation of a meeting with the Nomads. It mentions ‘Nomads meeting Hugh/Neville.’ No mention was made of Mr Farmer and Mr Hargreaves attending the meeting. At the foot of the second page is a reference to the meeting in September-October 2003. This in itself is peculiar because if these were contemporaneous notes there would be no need to make a reference to ‘Sep-Oct.’ One would expect that the reference would have been to a specific date. The Tribunal therefore doubts that the notes were made contemporaneously. But so far as the first notation is concerned and its position relative to the note on the second page, the notes confirm that the meeting with the Nomads would have been held before the meeting in September-October 03. The notes made by Mr Reid of the Nomads meeting state ‘next John – Halpin arrogant and racial – trouble and watch.’ No attempt was made in the notes to record the details of the statements allegedly made by Mr Halpin as described by Mr Reid in his evidence. The lack of detail can be compared with the third page. It describes in detail conversations which Mr Reid alleged were the conversations that took place when he had his meeting in September/October 2003 with Mr Halpin at which the derogatory remarks of Mr Halpin were described to the Tribunal by Mr Reid. For the purposes of the present consideration of the chronology of the Nomads’ meeting, in the view of the Tribunal the sequence of the notes made by Mr Reid would support the evidence of Mr Halpin and Mr O’Reilly that the meeting with the Nomads took place within six weeks of their taking over the hotel in October 2002 and not, as alleged by Mr Reid, in early 2004.

52 Where there is a conflict in evidence between Mr Reid, Mr Farmer and Mr Hargreaves on the one hand and the evidence of Mr Halpin and Mr O’Reilly on the other hand concerning the meeting with the Nomads, the Tribunal is influenced by the matters already discussed and also by subsequent matters that would be dealt with concerning Mr Reid’s evidence, to regard Mr Reid’s evidence as unreliable and to regard the evidence of Mr Farmer and Mr Hargreaves as contrived. Whenever the evidence of these witnesses conflicts with the evidence of Mr Halpin and Mr O’Reilly, the Tribunal has had no hesitation in accepting the evidence of Mr Halpin and Mr O’Reilly, in preference to the evidence of Messrs Reid, Farmer and Hargreaves.

53 Next in the chronological order of events seeking to demonstrate pressure by the proprietors of SJ on the fourth respondent and its guards concerning the refusal of admission of Aboriginal people to its premises, Mr Reid stated that in early 2004 he arranged for another friend, Mr Ronald Gould, who prior to his retirement was the officer in charge of Newcastle Licensing Police, to attend with Mr Reid to discuss with Mr Halpin matters relating to licensing and to give advice concerning licensing issues at the hotel. The meeting took place with Mr Halpin and Mr O’Reilly. Mr Gould stated that during the discussions the issue arose that the main concern of the proprietors was the bad image of the hotel that had been created for three reasons. The first was the number of prostitutes trying to work from the hotel, the second was the amount of drug dealing and usage taking place in the hotel and the third was the amount of Islander people and Aboriginal people drinking at the hotel which was causing ‘anti-social behaviour.’ Mr Gould stated that Mr Halpin raised those issues. Mr Gould stated that he recalled stating that it was not possible to refuse entry to all persons but that one could enforce strict dress rules and a nil-tolerance of intoxication. Mr Gould said he recalls Mr Halpin saying words to the effect ‘look we are in business to make money and I can refuse who I want from coming into my pub. It’s my money. If I don’t want druggies, bikies or blacks in, they won’t get in. And that’s that.’ Mr Gould stated that he recalled Mr Reid responding that ‘you can’t do that Hugh. It’s against the law. I won’t allow my guards to do that. You’re playing with fire mate. My guards won’t do anything unlawful and clearly it is in breach of the Anti-Discrimination Act.’ Mr Reid supported the evidence of Mr Gould concerning the discussions at that meeting.

54 In his evidence, Mr Halpin agreed that there had been a meeting with Mr Reid and Mr Gould. When it was put to him that he had said the words allegedly stated by Mr Gould, Mr Halpin denied that he made those statements. Mr Halpin did not state what was discussed at the meeting.

55 For the reasons mentioned later, the evidence of Mr Reid and Mr Gould concerning the alleged disparaging statements made by Mr Halpin, in the face of the denial by Mr Halpin, is regarded by the Tribunal as unreliable and is not accepted by the Tribunal.

56 From early in May 2004, there was undoubtedly a build-up in tension at the hotel premises caused by intoxication and misbehaviour of Aboriginal people and other patrons. It was the standard practice of the fourth respondent and its guards, at the conclusion of the night shift when the guards were on duty, mainly on Friday and Saturday nights, to complete a standard form called ‘Incident Report’. The Incident Reports listed the names and times of attendance of each guard during the shift and in narrative form, contained comments normally by the supervising guard of any serious incidents which had occurred during the shift. A series of these Incident Reports were exhibited to the Tribunal. In addition a number of COPS reports being reports made by officers of NSW Police relevant to occasions on which the Police had attended on the premises in response to calls from the security guards, were also exhibited.

57 The series of Incident Reports exhibited to the Tribunal show that from 1 May 2004 incidents relating to the ejection of Aboriginal people who were brawling in the premises and intoxicated Aboriginal people occurred on each of the weekends immediately prior to the weekend of 14 May 2004. A particular serious incident occurred on the evening of 9 May 2004 when the Police were called because two intoxicated persons had refused to leave the premises. On the night of 30 April 2004 the Incident Report shows two Aboriginal people were having an argument at the bar and they were removed by the security guards. One of the persons ejected had sustained a fracture to a finger on his left hand and an ambulance had to be called to assist him. On the evening of 1 May 2004 the Incident Report showed that a number of patrons were refused entry for intoxication – a total of 192. Thirty-five patrons were refused entry for improper dress and 36 patrons were escorted from the premises. The Incident Report does not indicate whether any of those patrons were Aboriginal people. In the Incident Report for the night of 7 May 2004, Marguerite Hall had made an entry to the following effect ‘a gentleman by the name of Terry from Awabakal Community Youth Patrol [an Aboriginal people run bus which patrolled the area to give assistance to Aboriginal people] came and spoke with me about why some Aboriginal people were not allowed in the premises. I explained to him for at least for the past six months youths and some parents of these youths were arguing and fighting amongst each other and destroying property at these premises. I also explained to him that it was only a week ago on 1 May Saturday morning, two Aboriginal people were asked to leave because of intoxication levels and they were starting to argue between themselves and then they started to argue with other patrons and their own group in the hotel … the two women went outside and a group of 10 to 12 male and female that are with them started to fight and carry on outside the front of the premises. Security (undecipherable) and Police were called. By the time Police arrived all that were involved in the fighting had gone across to the road to the train station side and continued to fight and argue until Police arrived. A lot were involved in the incident and they started to run away and a number …’

58 An Incident Report of 8 May 2004, under the signature of Mr Brett McLean, stated ‘male patron who had been removed for intoxication early in the evening was lined up again. When asked to leave the line he became aggressive towards security. This was the fifth time he had been spoken to by security. He was physically restrained and instructions were made to call the Police. Three security were involved in restraining the male for approximately 5 to 10 minutes till Police arrived and charged the male with failing to quit and putting him the back of the wagon.’

59 In the Incident Report of 14 May 2004, completed by Marguerite Hall, the following is recorded:

01.15 Police were called by management. No response.

01.20 Awabakal bus drove past. No response.

01.45 Police called again after male attacked doors of venue and broke two of the glass panels on the door.

When Police arrived all offenders had entered the Station Hotel so Police advised that they would drive around for a while.

SO Allen received red markings to his throat and a sore throat.

Extensive damage done to side door and two folding doors.’

60 In summary, the Tribunal accepts that the meeting with the Nomads did not take place in this period; it took place much earlier, soon after the new proprietors took over the hotel in late 2002. Because of the unreliability of the evidence of Mr Reid and his supporting witnesses, the Tribunal is unable to accept the statements of Mr Reid and those witnesses in which they describe disparaging, derogatory remarks which they allege were made by Mr Halpin at some of the meetings that have been described.

The Evidence of Mr Joshua Tout, Ms Marguerite Hall and Mr Brett McLean

61 The next material conflict in the evidence was that between Mr Tout, Marguerite Hall and Mr Brett McLean. This evidence goes to the crux of the issue of liability. Ms Hall, who was the supervising security officer of the fourth respondent on the night of 15/16 May 2004, stated that when she attended at SJs at approximately 8.30pm on the evening of 15 May 2004, she was accompanied by Mr McLean and they spoke with Mr Tout concerning their instructions for security guards operations for the shift commencing at that time and going through to the early hours of Sunday morning 16 May 2004. This process of instruction was consistent with the practice adopted by Mr Tout and the security guards.

62 Ms Hall stated that prior to this occasion she had received instructions from Mr Tout on several occasions that she was not to allow Aboriginal troublemakers into the premises. She stated that these conversations occurred every Friday and Saturday night for about six months leading up to 15 May 2004. She said ‘the instruction was basically not to let any Aboriginal troublemakers into the premises. I was not happy with this instruction by hotel management and I went directly to my boss Neville Reid at Knightland and advised him of the instruction not to let Aboriginal people into the hotel.’ She stated that Mr Reid told her that that was against the law and she should not do so. She said that she left it to Mr Reid to sort it out with management.

63 She said that about 9.00pm on 15 May 2004, Mr Tout told her not to let any Aboriginal persons into the premises. She said he also made a gesture with his hand and foot indicating Aboriginal people as ‘spearchuckers.’ She said he stressed to her several times that no Aboriginal people whatsoever were allowed into the premises. She said that he told her this was a direct order from the licensee, Hugh Halpin. She said that he told her that management had had enough in respect to Aboriginal people and their behaviour within the premises. She said that he said words to the effect ‘Marg, Hugh and Damian don’t want any more Aboriginals (doing this pose as mentioned earlier) in here, that had been causing trouble. They’ve had enough.’ Ms Hall stated that she didn’t say anything to Mr Tout and walked out of the meeting and commenced her shift.

64 In her evidence, Ms Hall said she went to the front door of the premises with Mr McLean and that they had a conversation in which she said to Mr McLean that she did not agree with the instructions from Mr Tout and that she was not going to carry out those instructions. She said that Mr McLean said to her that if they were the instructions then he felt he had to carry them out. The evidence showed that Mr McLean did precisely that.

65 Ms Hall stated that she then went about her duties during her shift and that she allowed some Aboriginal people into the premises ‘whom I knew had caused no trouble on prior occasions.’ She stated that she continued to apply her own guidelines regarding the refusal of entry of persons into the premises and that she did not comply with Mr Tout’s request.

66 Ms Hall further stated that about 1.00am that night she was called to the main entry door by one of the guards. She said she saw a large group of Aboriginal people outside the hotel near the main door and that a number of individuals who she had ejected from the premises the night before were there. She said a number of the Aboriginal people outside the premises were becoming upset and rowdy and she was trying to calm them down and she tried to explain why she could not let these particular Aboriginal people inside because of their behaviour. She stated ‘during this explanation I did however tell some of the others in the group that the management of the hotel had told me not to let any Aboriginals inside at all. I told them this was not my doing and I was only refusing entry to this particular group because of their behaviour the night before.’ She stated that the whole group seemed to become more agitated and rowdy and started to call for the manager. Ms Hall stated ‘I went inside to get the manager and eventually located him. I told him about the group of Aboriginals at the door that wanted to see him. He refused to come out and stressed again to me that none of them at all were to be let in. I know he was also rung by the Police around this time.’ Ms Hall then stated she went back outside and apologised to the group of Aboriginal people that management was not coming out and that she explained that she was just following instructions and they could not enter the premises. She stated that she had not subsequently worked at the hotel although she is still employed by the fourth respondent.

67 Mr McLean, in his evidence, supported the evidence of Ms Hall except he said that he arrived at the hotel prior to Ms Hall and he had a separate conversation with Mr Tout in which Mr Tout also told him that all Aboriginal people were to be refused entry. In her oral evidence before the Tribunal, Ms Hall corrected her statement that when giving her instructions to ban all Aboriginal people from the premises, Mr Tout made the stance that she described as imitating a ‘spearchucker’. In her oral evidence Ms Hall said that this statement was made by Mr Tout in a laughing manner in a conversation directly with Mr McLean at the time of giving instructions to ban all Aboriginal people. He said that in the same conversation with Mr McLean, which took place in the presence of Ms Hall, Mr Tout also said words to the effect ‘this is our NCP policy.’ She said that Mr McLean asked him what that meant and Mr Tout said ‘no coon policy.’

68 Mr Tout’s evidence concerning the instructions to Ms Hall is at variance to the evidence of Ms Hall and Mr McLean. Mr Tout stated that his instructions to Ms Hall were consistent with his instructions to her on previous occasions concerning Aboriginal people and that is, that she was not to allow Aboriginal troublemakers into the premises. Mr Tout denied that he made any comment concerning a ‘no coon policy’ and he denied that he took a stance which could be interpreted as demonstrating a ‘spearchucker’.

69 Mr Tout acknowledged that the damage that had been caused to the premises on the previous morning by approximately five Aboriginal people who had thrown a bollard at the front door and smashed a window and glass doors, was a matter that he reported to Messrs Halpin and O’Reilly on the morning of 15 May when he phoned Mr Halpin to tell him what had happened. As a result, Mr Halpin and Mr O’Reilly both attended on the premises at about 10.00pm on 15 May and had discussions with Mr Tout concerning the damage to the property and the steps to have the damage rectified.

70 Mr Halpin and Mr O’Reilly stated that Ms Hall also attended the premises on the afternoon on 15 May 2004 and that they spoke to her about the damage. They both gave evidence in the same terms, that they had each told Ms Hall ‘if anyone who was known to be involved with perpetrating the damage that we had last night arrives tonight, or any time in the future, do not allow them entry into the premises.’

71 Mr Tout stated that in a conversation that afternoon with Mr Halpin and Mr O’Reilly that they both said to him words to the effect ‘make sure that security know that the people who are responsible for the damage last night are to be refused entry and any of the other Aboriginal people who have caused trouble in the last month are to be refused entry.’ Mr Tout went on to state that he spoke to Ms Hall and said words to the following effect ‘any Aboriginals that are responsible for the damage that was caused last night and any Aboriginals who are responsible for the trouble that we have had over the last month is to be refused entry.’

72 Ms Hall denied that she was at the hotel on the afternoon of 15 May 2004 and she denied that she had any conversation that afternoon with either Mr Halpin or Mr O’Reilly.

73 Ms Leonie Hawtin, an employee at the hotel, was called to support the evidence of Mr Halpin and Mr O’Reilly that Ms Hall was at the premises that afternoon. Ms Hawtin’s evidence is equivocal. Although she gave evidence that she had seen Ms Hall at the premises having a drink at the bar on occasions, she was unable to relate her sighting of Ms Hall to the specific date of 15 May 2004.

74 In relation to the evidence of Ms Hall, that at about 1.00pm on the morning of 16 May 2004 when the Aboriginal people at the front door were asking to see the manager and she contacted Mr Tout and that he refused to respond, Mr Tout denies that Ms Hall made contact with him on that occasion and denies that he refused to attend at the front door.

75 In summary, the Tribunal having observed the evidence given by Ms Hall and by Mr Tout and the evidence given by Messrs Halpin and O’Reilly, considers that Ms Hall gave her evidence in a forthright and positive manner. She gave the impression that she is a person of truth and a person who takes her responsibilities seriously. In the view of the Tribunal, she is not a witness who would be likely to present evidence in a misleading manner.

76 Mr Tout, on the other hand, in giving his evidence, presented unfavourably to the Tribunal. The Tribunal finds that his evidence concerning the non-contact with him by Ms Hall requesting his presence at the front door, is implausible. The Tribunal accepts the evidence of Ms Hall that she did make contact with Mr Tout. Ms Hall at the time would be under stress with having a belligerent group of Aboriginal people, who had been refused entry without reason, and who was conscious that on the previous night a group of Aboriginal people, who included some of those present at the time when she made contact with Mr Tout on 16 May 2004, may become aggressive. Mr Tout’s refusal to respond to Ms Hall’s request for assistance would be consistent with him maintaining a position that all Aboriginal people were to be banned from the hotel.

77 The proposition put on behalf of Mr Tout that he did in fact instruct Ms Hall to exclude only Aboriginal troublemakers and that Ms Hall misconstrued those instructions, is not supported either by Ms Hall or by Mr McLean. Although there are aspects to Mr McLean’s evidence which are not satisfactory, the Tribunal accepts that he and Ms Hall did have a conversation with Mr Tout between 8.30 and 9.00pm on 15 May 2004 and that Mr Tout did instruct them not to allow any Aboriginal people into the premises and that Mr Tout, on that occasion, did take the pose of a ‘spearchucker’ and that he did refer in his discussion with Mr McLean to a ‘no coon policy’.

78 In relation to the evidence of Mr Halpin and Mr O’Reilly, that they issued instructions to Ms Hall to exclude only Aboriginal troublemakers, in a meeting with Ms Hall on the afternoon of 15 May 2004, is too glib. Both say that they had separate conversations with Ms Hall and they each say that they used the same words in their respective discussions. There are elements of contrivance about their mutually supportive statements.

79 As the Tribunal has accepted the veracity of the evidence of Ms Hall in other respects when it conflicts with the evidence of Mr Tout, the Tribunal would, where her evidence conflicts with the evidence of Mr Halpin and Mr O’Reilly, prefer the evidence of Ms Hall. The Tribunal therefore rejects the evidence of Messrs Halpin and O’Reilly concerning the conversation with Ms Hall in the afternoon of 15 May 2004.

80 The effect of these findings on the evidence is that the Tribunal is of the view that by instructing Ms Hall and Mr McLean early in the evening of 15 May 2004 to exclude all Aboriginal people from the premises, Mr Tout, within the terms of s 52 of the Act, aided and abetted the subsequent actions of Mr McLean and the other guards in excluding the applicants from the premises. As a consequence, Mr Tout aided and abetted the unlawful racial discrimination that occurred at approximately 11.00pm and approximately 1.00am during the evening of 15 May and the morning of 16 May 2004.

The Evidence of Mr Reid and Mr Tout

81 The final, most serious material conflict in the evidence is the evidence between Mr Reid and Mr Tout as to a telephone conversation which Mr Reid initiated with Mr Tout on 8 December 2005. Mr Reid and Mr Tout agree that they had a telephone conversation on that occasion but they disagree as to the contents of the discussion. In his second affidavit sworn on 27 April 2006, Mr Reid sets out verbatim his version of that conversation. The more relevant part of Mr Reid’s version of the conversation states that Mr Tout admitted that he had received instructions from Mr Halpin to stop all Aboriginal people going into the premises and that he instructed the guards accordingly. Mr Reid sets out verbatim the words which he alleges were spoken between him and Mr Tout. The verbatim words go into considerable detail about the conversations between Mr Tout and the guards.

82 Mr Reid attached a photocopy of what he described as the notes he made contemporaneously with his conversation with Mr Tout.

83 Mr Tout denied that he said to Mr Reid the words that Mr Reid ascribes to him. In particular, Mr Tout denied that he told Mr Reid that Mr Halpin had told him to refuse to admit all Aboriginal people and that Mr Tout had instructed the guards to, in effect, ban all Aboriginal people.

84 Mr Reid, in his earlier oral evidence, had been examined at some length concerning the notes that he attached to his earlier affidavit of 30 March 2006 and that are referred to earlier in this decision. In that examination, Mr Reid’s evidence was most unsatisfactory. He prevaricated about how he located the notes. He stated that originally all the files held by Knightland Home Security Pty Ltd which included files relating to the premises at SJ had been taken by the administrator of Knightland Pty Ltd and that he was unable to retrieve them from the administrator. Yet, he stated that he found the particular notes on his desk in his office. Under further examination, he stated that he found the notes in a filing cabinet. He stated the notes were part of a number of pieces of paper that were in the filing cabinet but not in any order. This evidence of Mr Reid was most unconvincing. For the reasons stated earlier, it is the view of the Tribunal that the notes were either completely reconstructed just prior to completing his affidavit or if some of the notes were genuinely made contemporaneously, page 3 of the notes which sets out detailed verbatim disparaging comments made by Mr Halpin at the meeting following the meeting with the Nomads, are so inconsistent with the general and limited nature of the rest of the notes comprising the four pages, that the Tribunal concludes that at least the third page with the verbatim alleged statements by Mr Halpin cannot be relied on as an accurate or truthful reproduction of those statements.

85 In relation to the photocopy of the notes of the conversation with Mr Tout on 18 December 2005, which are annexed to Mr Reid’s statement made on 27 April 2006, Mr Reid’s evidence concerning those notes is totally unsatisfactory. His prevarication as to the whereabouts of the original notes from which the photocopying was made and which was never found or produced to the Tribunal, was not only unconvincing but for the reasons stated earlier concerning his incorrect suggestion that they were held by his solicitor leaves the Tribunal to question whether the preparation of the 4 pages of notes and the production of a photocopy to the Tribunal was a subterfuge deliberately contrived by Mr Reid to mislead the Tribunal.

86 The Tribunal rejects Mr Reid’s evidence that those notes are an accurate representation of his conversation with Mr Tout. In coming to its view that those notes are not accurate, the Tribunal would express its concern that when taken with the evidence of Mr Reid concerning the third page of the notes produced in his earlier affidavit, Mr Reid contrived to mislead the Tribunal concerning his conversations with Mr Tout and also his conversations with Mr Halpin and Mr O’Reilly. In summary, the Tribunal does not accept the evidence of Mr Reid that Mr Tout made admissions to him concerning his instructions from Mr Halpin or the details of the conversation that Mr Reid alleged he had with Mr Tout on 18 December 2005.

Findings of the Tribunal in relation to the evidence relating to liability

87 Having given careful consideration to the evidence, both written and oral, and after accessing the material conflicts in parts of the evidence, the Tribunal has reached the following conclusions:

2. That the evidence does not allow a finding that on the afternoon of 15 May 2004, Messrs Halpin and O’Reilly had a conversation with Ms Hall in which they instructed Ms Hall that she was to exclude Aboriginal people from entering the hotel.

3. That Mr McLean and Ms Hall had a discussion following the receipt of those instructions from Mr Tout. In that discussion Ms Hall stated her position that she did not agree with those instructions and that she would not obey them. Mr McLean, on the other hand, stated that they were instructions that had to be carried out and he would act accordingly. That position of Mr McLean is supported by Mr Greentree, one of the other security guards on duty with Mr McLean at the front door of the premises. Mr Greentree stated that when Ms Hall told him of her conversation with Mr Tout that he said he felt he had to carry out the instructions and in fact he did so. Similarly Mr Wingrove, another security guard who came on duty at approximately 1.00pm on 16 May 2004 also felt that he was obliged to carry out the instructions to ban all Aboriginal people and he acted accordingly.

4. That Ms Hall contacted Mr Tout at approximately 1.00pm on 15 May 2004 and told him that there were a group of Aboriginal people at the door who were getting upset and aggressive at not being allowed into the premises and that they had requested to see the manager. The Tribunal rejects Mr Tout’s evidence, that he was not contacted by Ms Hall on this occasion. The Tribunal accepts Ms Hall’s evidence that when she contacted Mr Tout he refused to come to the front door of the premises and to speak to the Aboriginal people who had requested to see him.

5. The Tribunal finds that the evidence of Mr Reid is unreliable and, in some instances, deliberately misleading. As a result, the Tribunal rejects the evidence of Mr Reid and his supporting witnesses that Messrs Halpin and O’Reilly at times prior to the weekend of 14 May 2004 had made derogatory and disparaging remarks about Aboriginal people and that they did not want Aboriginal people attending their premises.

6. The Tribunal accepts that there were contacts between Mr Reid and Mr Halpin and Mr O’Reilly from time to time leading up to the weekend of 14 May 2004 when Mr Reid had expressed his disquiet about the difficulties the guards were having and would continue to have in excluding Aboriginal troublemakers. Mr Reid’s statements that he pointed out to Messrs Halpin and O’Reilly that the exclusion of Aboriginal people might be in breach of the anti-discrimination laws, is not convincing and is not accepted by the Tribunal.

7. The Tribunal is unable to conclude that the evidence is sufficient to substantiate that Messrs Halpin or O’Reilly, either separately or together, issued instructions to Mr Tout prior to 15 May 2004 that he was to instruct the guards that night to ban all Aboriginal people from the premises. Although there is a history of the build-up of pressure on the proprietors concerning the conduct of Aboriginal people and other troublemakers at the premises, which culminated on the evening of 14 May 2004 in a group of intoxicated Aboriginal people being ejected from the premises and brawling outside the premises and then causing serious damage to parts of the premises, all of which would have caused Messrs Halpin and O’Reilly increasing concern about how to deal with troublemakers and in particular, Aboriginal troublemakers, the evidence is not sufficient to enable the Tribunal to find that Messrs Halpin and O’Reilly did in fact instruct Mr Tout to ban all Aboriginal people on the night of 15 May 2004.

88 The results of the findings on the evidence is as follows:

2. The acts of the guards in refusing entry to each of the applicants constituted unlawful racial discrimination in breach of the provisions s 7(1)(a) and s 19 of the Act.

3. Unless Knightland Home Security Pty Ltd can demonstrate that they did not authorise those acts or that they took all reasonable steps to prevent those acts, Knightland Home Security Pty Ltd, the fourth respondent, is vicariously liable to the applicants for the unlawful actions of their guards.

4. That Mr Joshua Tout, the night manager of the first respondent, early in the evening of 15 May 2004 issued instructions to Ms Hall and Mr McLean, the security guards employed by the fourth respondent, not to allow any Aboriginal people into the premises that night. Within the provisions of s 52 of the Act, the issuing of these instructions constituted the aiding and abetting of the unlawful racial discrimination perpetrated by the guards against the applicants.

5. Unless the first respondent can demonstrate that it did not authorise the unlawful action of Mr Tout in aiding and abetting the security guards’ unlawful conduct or that the first respondent took all reasonable steps to prevent Mr Tout from his conduct in aiding and abetting the guards, the first respondent is vicariously liable to the applicants for the unlawful conduct of Mr Tout.

6. The evidence is not sufficient to support a finding that Messrs Halpin and O’Reilly aided and abetted Mr Tout in his unlawful conduct in issuing instructions to the guards which resulted in the guards perpetrating acts of unlawful racial discrimination against the applicants.

89 In considering the application of the provisions of s 53 of the Act to the liability of both the fourth respondent and the first respondent for the unlawful acts of their employees, consideration has to be given separately to those issues.

The application of s 53 to the fourth respondent

90 Section 53 is in the following terms:

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.’

91 The Tribunal has found that the acts of unlawful racial discrimination against the applicants were perpetrated by the conduct of the security guards, Messes McLean, Greentree, Wingrove and Marguerite Hall, each of whom were employees of the fourth respondent. Section 53(1) of the Act renders the fourth respondent vicariously liable for the unlawful acts of its employees unless the employer did not, either before or after the doing of the unlawful act, authorise the employee, either expressly or by implication, to do the act. The onus is on the fourth respondent to substantiate its claim that it did not authorise its security staff to unlawfully discriminate against the applicants on the occasions on 15 May 2004 and 16 May 2004.

92 The fourth respondent did not present evidence to the Tribunal which would demonstrate the fourth respondent had not authorised the unlawful conduct of its security staff on those occasions. In her evidence, Marguerite Hall stated that early on the evening of 15 May 2004 when she was instructed by Mr Tout to refuse entry to all Aboriginal people, she spoke to Mr Reid to obtain his instructions. Neither Ms Hall nor Mr Reid related any details of a conversation or conversations that evening between them concerning the instructions that Ms Hall had received from Mr Tout. The Tribunal is unable to discern from the evidence that Mr Reid was in fact informed of the instructions received by the security guards from Mr Tout or that Mr Reid, if he was aware of those instructions, took any action to countermand or otherwise prevent the security officers carrying out Mr Tout’s instructions.

93 The evidence shows that there were meetings between Mr Reid and the principals of the first respondent, i.e. the second and the third respondents, at which discussions concerning the control of some of the Aboriginal people who were troublemakers at SJ, should be dealt with. The evidence of some of the guards, supported by the information in the incident reports, shows that for a number of weekends prior to the weekend of 15/16 May 2004, specific issues with Aboriginal troublemakers occurred at the hotel. Mr Reid, accordingly, was aware that his security guards were required to deal with elements of the Aboriginal patrons at SJ who were causing disturbances. None of the guards stated in their evidence that they received specific instructions from Mr Reid as to how they were to deal with the situations that they faced with these unruly elements amongst the Aboriginal patrons of SJ.

94 Mr Reid referred to a letter which he faxed to Mr Halpin on 20 May 2004, after Mr Reid had received advice that Mr Halpin had terminated the contractual arrangements for the supply of security services by the fourth respondent to SJ. In his letter Mr Reid referred to Mr Brett McLean in these terms ‘I note that you mention Brett McLean as a guard that said the wrong thing to the Aboriginals trying to enter the hotel. He no longer works for us and has been working closely with the opposition to cause the company further headache and I know he was instrumental in creating negative talk within the guard circle at your venue.’ Mr Reid did allude to the fact that when he learnt that Brett McLean on the night of 15 May 2004 and on the morning of 16 May 2004 had taken a leading part in the exclusion of Aboriginal people from SJ, he had terminated the services of Mr McLean. The evidence, however, shows that the termination of Mr McLean’s services by Mr Reid was related to matters arising out of Mr McLean’s general attitude in the performance of his role which did not meet Mr Reid’s requirements. Mr Reid took no steps to terminate the services of either Mr Greentree or Mr Wingrove or Marguerite Hall who each participated in the unlawful discriminatory conduct on those occasions.

95 In the view of the Tribunal the fourth respondent has not discharged the onus of satisfying the Tribunal that the fourth respondent did not, either before or after the unlawful conduct, authorise its employees to carry out the unlawful discriminatory conduct.

96 The Tribunal has also considered whether the evidence of steps taken by the fourth respondent to train and educate its security staff, generally, on the anti-discrimination law and its application to the operations of the business of the fourth respondent, was capable of establishing that the fourth respondent demonstrated that it did not authorise conduct of a discriminatory nature. The details of the steps taken by the fourth respondent in educating its security staff is dealt with in detail later. Having regard to the inadequacy of the fourth respondent’s attempts in training its staff in the anti-discriminatory laws, the Tribunal considers that again the fourth respondent has failed to discharge its onus of establishing that it did not authorise the carrying out of the specific acts of discrimination by its security staff on 15 May and 16 May 2004.

97 The fourth respondent sought to bring itself within the exception in sub-section 3 of s 53 by demonstrating that it took all reasonable steps to prevent its employees from contravening the Act.

98 Mr Reid exhibited to the Tribunal a copy of a document entitled ‘Induction Manual.’ Mr Reid stated that a copy of this document was handed to each security officer at or about the time of the officer’s employment with the fourth respondent. The security guards who gave evidence before the Tribunal acknowledged that they had sighted the induction manual at the time of their employment. Mr Reid considered that the induction manual contained adequate instructions to the security officers as to their responsibilities and duties to prevent acts of unlawful discrimination. An examination of the contents of the document shows that its contents falls far short of supporting that proposition.

99 The only references to equal opportunity and anti-discrimination laws are in the section headed ‘Licensed Premises. Venues. Duties of security personnel.’ This page contains a series of dot points. One dot point states ‘Ensure that EEO and anti-discrimination laws are met.’ Another page of the document is headed ‘Equal Employment Opportunity (EEO) and affirmative action policy.’ The contents of that page refer only to relationships between the fourth respondent and security staff and has no reference to external application between security staff and third parties. On another page under the heading ‘Code of Conduct’ a series of specific items of code of conduct is set out. No reference is made in those specific items to matters affecting anti-discrimination laws. On another page under the heading ‘The Role of Security Officers’, a series of areas of responsibility are set out. No reference is made in those areas of responsibility of the need to comply with anti-discrimination laws. Under the heading ‘The Role of Security Supervisors’, a list of areas of responsibility are set out. That list does not contain reference to the need to observe and comply with anti-discrimination laws.

100 A separate document headed ‘Access and Equity Policy and Procedures’ was also produced by Mr Reid. Mr Reid said that a copy of that document was given to security officers. On a page of that document headed ‘Licensed Premises. Clubs. Duties of Security Personnel’ in a series of dot points there is a point which states ‘Ensure the EEO and anti-discrimination laws are met.’ One section of that document is headed ‘Problem patrons requiring security assistance.’ No reference is made in that section to how security officers are to act in admitting or refusing admittance of patrons to licensed premises.

101 In the view of the Tribunal there is no part of those documents which would support the proposition that the documents demonstrate that the fourth respondent had taken all reasonable steps, in making those documents available to security officers, to prevent the security officers from contravening the Act.

102 Mr Reid, in his evidence, also related to steps taken by members of his operational staff to train security officers in the application of the anti-discrimination laws. The main witness in this regard was Mr Scott Gould, who was a security supervisor employed by the fourth respondent. In the year 2004 he was employed as operations manager by the fourth respondent. His role involved the oversighting of guards and he was responsible for the recruiting and induction of the security guards at the fourth respondent. He ran what he described as ‘guard education days’ and he also interviewed prospective guards. When questioned, Mr Gould was unable to name the Anti-Discrimination Act. He said during the training sessions he would have discussion with the guards relating to the anti-discrimination laws and their application to their roles. When questioned further on this aspect, he said that he gave the guards a chance to read the documents which he identified as the documents that had been produced by Mr Reid. Mr Gould’s evidence was unreliable. He stated that he knew Mr Halpin and Mr O’Reilly very well and that he had spoken to them on numerous occasions when working at SJs. However, when asked to do so he was not able to identify Mr O’Reilly who was sitting in the hearing room. His evidence concerning his training sessions with security guards was, in the view of the Tribunal, demonstrably inadequate as a demonstration of steps taken by the fourth respondent to prevent its security guards from contravening the Act.

103 One guard, Mr Ronald Allan, stated that he did not recall any training on anti-discrimination law that he was given by the fourth respondent nor did he recall that he was given an induction manual when he was employed by the fourth respondent. He stated that he did not know what the anti-discrimination laws were about. Mr Ronald Gould, the retired police officer and friend of Mr Reid, stated that he did some training of security guards for the first respondent. He stated that the anti-discrimination law was only touched on briefly during his training sessions. Mr Greentree, a security guard who participated in the unlawful discrimination on 15 and 16 May 2004, stated that he was shown the induction policy before being engaged to work with the fourth respondent but he did not remember what was in it. Marguerite Hall stated that she was given a copy of the induction manual to oversight. She said that she handed it back to Mr Reid about a week later. She did not know where the fourth respondent kept a copy of the manual. She stated that she saw the manual again about a couple of months later when it was compulsory to go over the document at a guards’ meeting. She said that she had not seen the document since that time. When asked to describe the contents of the manual where it provided for anti-discrimination, she was most vague in her statement of what the document contained.

104 The Tribunal has come to the view that the steps which were described by Mr Reid and were relied on by the fourth respondent to demonstrate that the fourth respondent had taken sufficient steps, within the terms of sub-section 3 of s 53 of the Act, to prevent its security guards from contravening the Act, was not established. In the view of the Tribunal, the evidence brought forward to support this contention demonstrated to the contrary that those steps were grossly inadequate to train and educate the security officers on how they should act to prevent a breach of the Act.

105 The Tribunal finds that the fourth respondent is vicariously liable to each of the applicants, under the provisions of s 53(1) of the Act, for the unlawful discriminatory conduct perpetrated by its security guards on 15 and 16 May 2007.

The application of s 53 of the Act to the first respondent

106 The Tribunal has found that Mr Joshua Tout, the night manager employed by the first respondent at SJ on 15 and 16 May 2004, aided and abetted, in terms of s 52 of the Act, the unlawful discriminatory conduct of the security guards employed by the fourth respondent in their discriminatory conduct towards each of the applicants. The first respondent as the employer of Mr Tout, is vicariously liable for Mr Tout’s unlawful conduct, unless the first respondent did not authorise Mr Tout to instruct the guards in the manner that he did, either before or after he issued those instructions or alternatively, that within sub-section 3 of s 53 of the Act, the first respondent had taken all reasonable steps to prevent Mr Tout from contravening the Act.

107 The principals of the first respondent, Mr Hugh Halpin and Mr Damian O’Reilly, both stated that when they went to SJs on the morning of 15 May 2004, after they learnt of the damage done to the premises on the previous evening, they spoke to Marguerite Hall. The Tribunal had already dealt with this part of the evidence and has rejected the statements of Messrs Halpin and O’Reilly that they instructed Ms Hall not to allow entry that evening to any of the people who had perpetrated the damage to the premises. They each stated ‘this was the only instruction that I gave to anyone from Knightland in relation to its services for the evening of 15 May 2004/16 May 2004’ and that they both stated they left the hotel shortly afterwards and did not return to the hotel on that evening. Accordingly, there is no evidence that would indicate that either Mr Halpin or Mr O’Reilly gave any instructions to Mr Tout as to what approach he should take on the evening of 15/16 May 2004 concerning admission of either troublemakers or Aboriginal patrons in general. There is no evidence that suggests that after they had learnt of the actions of the security guards in rejecting admission to the applicants, that either Mr Halpin or Mr O’Reilly took steps to discipline Mr Tout or took steps to question Mr Tout about what actions he had taken concerning Aboriginal patrons on those occasions. There is no evidence that would enable the Tribunal to determine that the first respondent had not authorised the carrying out of the unlawful conduct by Mr Tout.

108 Mr Halpin and Mr O’Reilly, in their respective affidavits, annexed copies of two documents being a procedures manual and a one-page document entitled ‘Sydney Junction Hotel House Policy’. Neither deponent stated how these documents were employed or distributed in the operation of the hotel. Neither document contains a statement which instructs the reader as to the operation of the anti-discrimination laws in their application to third parties. The document focuses on employment issues between the employer and employee and the conduct of employees towards third parties in matters of intoxication, gambling, customer service and customer behaviour. In these contexts the documents contain no reference to the anti-discrimination laws.

109 The documents produced by the first respondent were even less adequate than the documents of the fourth respondent in demonstrating that the first respondent had any policy concerning the manner of dealing with the prevention of discriminatory conduct by its employees towards the patrons of the Sydney Junction Hotel.

110 The first respondent was unable to show that it did not authorise the unlawful conduct of Mr Tout in aiding and abetting the unlawful discriminatory conduct of security guards towards the applicants.

111 The first respondent failed to show that it had taken any steps to prevent such conduct.

112 The Tribunal finds that the first respondent is vicariously liable under s 53(1) of the Act for the contravention of the Act by Mr Tout.

The defence of the fourth respondent arising under the Liquor Act 1982 (NSW) (the Liquor Act)

113 Mr Healey, counsel for the fourth respondent, in his submissions to the Tribunal raised the issue that the application of ss 69F and 69G of the Liquor Act operated to, in effect, override the application of s 53 of the Act, and to cast strict liability for the unlawful discriminatory conduct of the security guards of the fourth respondent onto the licensee of the Sydney Junction Hotel. The Tribunal has been unable to discern in the evidence who in fact on 15 and 16 May 2004, was the licensee of the hotel. Mr Halpin, in his evidence, referred to he and Mr O’Reilly as the licensees. Some references in the submissions to the Tribunal refer to the First Rate Leisure Pty Ltd, the first respondent, as the licensee. If Mr Healey’s submissions were to be accepted by the Tribunal, it would be necessary to ascertain with certainty who was the actual licensee at that time.

114 Mr Healey stressed in his submissions that it was a common understanding of the liquor industry that it is regarded as the responsibility of the licensee of the premises for all unlawful acts committed on or in relation to the premises by employees or agents of the licensee. The submission is extended, in the circumstances relating to these complaints, by suggesting that the provisions of the Liquor Act would override the provisions of the Anti-Discrimination Act, and in particular s 53 of the Act, to the extent that in the case of licensed premises under the Liquor Act, the liability of the licensee for unlawful conduct on licensed premises overrides the vicarious liability of an agent under s 53 of the Act for unlawful discriminatory conduct of the security guards employed by the fourth respondent.

115 The Tribunal does not accept the proposition as submitted by counsel for the fourth respondent. Sections 69F and 69G of the Liquor Act are in the following terms:

69F Responsibilities and liabilities of managers of licensed premises

(1) The person appointed as manager of licensed premises for which the licensee is a body corporate is responsible at all times for the personal supervision and management of the conduct of the business of the licensed premises under the licence.

(1A) A person appointed as manager of licensed premises for which the licensee is not a body corporate is responsible for the personal supervision and management of the conduct of the business of the licensed premises under the licence whenever the licensee is not personally present on those premises.

(2) If an element of an offence under a provision of this Act or the regulations is an act or omission by a licensee, a person who is manager of the licensed premises is, while responsible under subsection (1) or (1A), responsible in respect of the offence as though that person were also a licensee of those premises and is liable for the offence accordingly.

(3) This section does not affect any liability of a licensee for a contravention by the licensee of a provision of this Act.

69G Liability of licensee for contravention by manager

The licensee of licensed premises is taken to have contravened any provision of this Act or the regulations that the manager of the licensed premises contravened as a result of section 69F unless the licensee establishes that the licensee:

(a) did not authorise or knowingly permit the contravention by the manager, and

(b) maintained control over and supervision of the activities of the manager of the licensed premises in an effort to prevent any such contravention occurring.’

116 In the view of the Tribunal, these provisions of the Liquor Act, within their terms, are confined in their operation to a responsibility for ‘conduct of the business of the licensed premises under the licence’ (sub-section 1 of s 69F) and in the case of s 69F(1A). That sub-section in its terms is similarly confined to responsibility for the conduct of the business of the licensed premises under the licence. Section 69G of the Liquor Act is not dissimilar to s 53 of the Act by imposing vicarious liability on the licensee for contraventions of s 69F except where in the circumstances, sub-sections (a) or (b) operate to exclude that responsibility.

117 There is nothing in the terms of ss 69F or 69G of the Liquor Act which would extend the responsibility created by those sections to cover unlawful discriminatory conduct under the Act. Unlawful discriminatory conduct is governed by the Act and is not conduct which would be captured by offences arising under the Liquor Act or come within the phrase ‘the personal supervision and management of the conduct of the business of the licensed premises under the licence’ which are the terms used in ss 69F and 69G to define the limits of the responsibility of the manager of licensed premises or the licensee of those premises for misconduct in the business of the licensed premises.

118 The Act contains a statutory code for rendering unlawful acts of discrimination which come within the terms of the provisions of that Act. As part of that code, s 53 operates to extend liability for unlawful discriminatory acts to principals and agents whose employees have perpetrated the unlawful conduct except where, under that section, the principal or agent can establish that he did not authorise the unlawful conduct or took reasonable steps to prevent it. In the view of the Tribunal for the statutory code in the Act to be overridden by other legislation and for s 53 to be restricted in its operation in the manner contended for by the fourth respondent would require clear and express provisions to demonstrate a legislative intent to have the provisions of the Liquor Act to have such a dominant effect. The Tribunal can see no justification for supporting a proposition such as that submitted to it on behalf of the fourth respondent.

119 Accordingly, the Tribunal determines that the operation of s 53 of the Act is not affected in its operation by the provisions of the Liquor Act, and in particular by 69F or 69G of the Liquor Act.

120 Mention should also be made of s 103 of the Liquor Act which deals with the exclusion of persons from licensed premises. In the view of the Tribunal that section does not support the proposition of the fourth respondent as to the limited operation of s 53 of the Act as the sole determinate of issues of vicarious liability for unlawful discriminatory conduct on licensed premises.

Findings of liability

121 As a result of the findings of the Tribunal, the Tribunal finds the following parties are liable to each of the applicants for the unlawful discriminatory conduct of the security guards perpetrated towards the applicants on the night of 15 and 16 May 2004:

(2) That the first respondent, First Rate Leisure Pty Ltd, is liable for the unlawful discriminatory conduct of the security guards perpetrated against each applicant, vicariously under s 53 of the Act as a consequence of the acts of Mr Tout, the manager of the first respondent, in aiding and abetting the unlawful conduct by his issuing instructions to the security guards to exclude all Aboriginal people from the premises on the night of 15 and 16 May 2004. The first respondent has not established to the satisfaction of the Tribunal that it did not authorise the unlawful conduct of Mr Tout nor that it took reasonable steps, in terms of sub-section 3 of s 53 of the Act, to prevent that unlawful conduct.

(3) In relation to the security guards who perpetrated the unlawful discriminatory conduct and Mr Tout who directed the guards to exclude all Aboriginal people from the premises, each of those persons has liability to the applicants for their unlawful discriminatory conduct. As none of those persons are respondents in these proceedings, the Tribunal has no jurisdiction to make orders against those persons for their unlawful conduct.

(4) In conclusion, the Tribunal finds that the first respondent and the fourth respondent are liable to each of the applicants for the contravention of the Act arising out of the unlawful conduct of the security guards and of Mr Tout. As between the first respondent and the fourth respondent, their respective liabilities are several. The applicants are accordingly entitled to recover any compensation awarded to them separately and severally against the first respondent and the fourth respondent.

(5) The total of the amount to be recovered by each applicant, whether from either or both the first respondent and the fourth respondent, shall not exceed the amount of compensation awarded to the respective applicant.

122 Prior to the commencement of the Amending Act on 2 May 2004, s 113(b) set out the powers of the Tribunal to make orders if the Tribunal found a complaint was substantiated. Section 113(b) did not contain a provision enabling the Tribunal to order a respondent to apologise or to publish an apology.

123 The lack of power in the Tribunal to order an apology was remedied by s 108(2)(b) of the Amending Act. However, the transitional provisions in the Amending Act, in Schedule 1 Part 5 Clause 15 provides that s 113, as in force immediately before its repeal by the Amending Act, continues to apply to a complaint that was not finally determined by the Tribunal before the repeal of that section. Accordingly, in the opinion of the Tribunal, s 113(b) of the Act, prior to its repeal on 2 May 2004, continues to apply to the complaints in these proceedings. It follows that the Tribunal is unable to order that the first respondent or the fourth respondent apologise or publish an apology to the applicants.

124 The applicants sought an order from the Tribunal for an award of compensation under s 113(1)(b)(i) of the Act, prior to the repeal of that section by the Amending Act.

125 In the view of the Tribunal, each applicant is entitled to an award of compensation to be assessed on the basis of the non-economic loss suffered by each applicant as a consequence of the unlawful conduct directed towards them respectively on the occasion of their exclusion from the Sydney Junction Hotel on the evening of 15 and 16 May 2004.

126 In assessing the extent of that loss, the Tribunal has had regard to the evidence of the applicants who described their hurt and humiliation when, having stood in a queue of persons seeking admission to the premises, either, in the case of some of them when they reached the head of the queue, and in the case of others when they left the queue when they were told they would not be admitted, or in the case of the female applicants when they joined their male friends who had been refused entry to the premises. Each applicant described the humiliation they felt when they, in the view and presence of other persons in the queue who were being allowed into the premises, were selected by the guards to be excluded from the premises. In the case of Messrs Weldon and Dargan, they were escorted by Mr McLean to a position away from the entrance to the premises but within sight of the premises and the people in the queue. Mr McLean apologised to Messrs Weldon and Dargan for having to exclude them from the premises and he relied, in his discussion with them, on the instructions that he said he had received from the proprietors of the hotel.

127 In the view of the Tribunal, the extent of the hurt and humiliation of the applicants was aggravated by the refusal of Mr Tout to attend at the entrance door and speak directly to those who had been excluded. Ms Hall stated that she contacted Mr Tout on several occasions about 1.00am on 16 May and conveyed to him the request from the applicants or some of them that he explain directly to them the reasons why they were being excluded. Although Mr Tout denies that he received this request, the Tribunal has found that his evidence in this respect is unreliable and that in fact Ms Hall did make that request to him and that he did refuse it.

128 In not dissimilar circumstances to the exclusion of a person on the ground of race from being allowed entrance to licensed premises is the decision of the Tribunal in Tupou v Scruffy Murphy’s Pty Ltd & Ors [2007] NSWADT 192. In that case the Tribunal was applying the provisions of the new s 108(2) of the Amending Act to determine the amount of damages to be awarded to the person refused entry to the licensed premises. In paragraphs 86 to 98 of that decision, the Tribunal sets out the relevant decisions and aspects which should be considered in determining an award of damages for non-economic loss. In that decision the Tribunal awarded an amount of $6,000 as compensation but in addition awarded further amounts by way of aggravated damages because unfounded allegations of intoxication had been made by the defendants against the applicant.

129 Previous decisions of the Tribunal in assessing the amount to be awarded by way of damages for non-economic loss, can be used by way of illustration but as the circumstances of each case is dependent on its own facts, no decision can be directly applied as definitive or persuasive to a Tribunal in making an award in a particular case.

130 In these proceedings it is the view of the Tribunal that the exclusion of each applicant was the result of a deliberate policy decision taken by the representative of the first respondent, Mr Tout, to exclude all Aboriginal people from entry to the premises irrespective of whether they had caused trouble on previous occasions. In the case of each applicant, none of those persons had previously caused trouble at the hotel. They were refused entry to the hotel, either directly or indirectly, in the most humiliating circumstances. They were excluded in the presence of a number of other patrons who were seeking entry and who were being allowed entry into the hotel. Each of the applicants were appropriately dressed. There was no suggestion that any of the applicants were affected by liquor. They were rejected because of their race. Each of the applicants were looking forward to a night out and had come to the hotel especially to enjoy its ‘nightclub’ ambience. The Tribunal can appreciate that they felt a deep sense of humiliation and hurt when they were singled out and refused entry or in the case of the female applicants, their partners and friends have been singled out and refused entry and were not allowed to accompany the female applicants into the premises.

131 It is the view of the Tribunal that in the circumstances each applicant is entitled to be compensated for the deep hurt and humiliation which the actions of the security guards would have caused them. The Tribunal accordingly awards each of the applicants by way of compensation for their hurt and humiliation an amount in the sum of $15,000.

Costs

132 Counsel for the applicants submitted to the Tribunal that if the Tribunal were to find in favour of the applicants, that the applicants would seek an order for costs against those of the respondents against whom orders were made. It was decided by the Tribunal that the question of costs would need to be stood over pending the outcome of its decision.

133 In effect, three days of the hearing, i.e. 27, 28 and 29 March 2007, were lost as a consequence of Mr Mooney of counsel, representing the fourth respondent, withdrawing from the proceedings following the withdrawal of his instructing solicitor, Mr Olsen. On that occasion the Tribunal noted the application by the first, second and third respondents and by counsel for the applicants for an order for the costs lost as a consequence of the abandonment of the hearing on those days. The Tribunal stood over the determination of that issue until after it had given its decision in the proceedings. The first, second and third respondents may seek an order that their costs associated with the abandonment of those three days of hearing, should be made against the fourth respondent.

134 In addition, there could be a question whether the second and third respondents, in view of the findings of the Tribunal, are entitled to an order for their costs and if so, against which of the other parties such an order should be made. The Tribunal will direct that the parties attempt to negotiate the appropriate orders for costs but if they are unable to come to an agreement within 28 days of the delivery of these reasons, any or each of the parties is entitled to apply to the Tribunal for a hearing before the Tribunal on the question of what orders, if any, should be made as to the costs of the parties in these proceedings.

Orders

2. The first and fourth respondents are to pay to each applicant within 21 days, the sum of $15,000, for which the first and fourth respondents are severally liable.

3. Within 28 days, if the parties are unable to agree as to what orders as to costs are to be made in the proceedings, any one or more of the parties may apply for a hearing for the Tribunal to determine what orders as to costs, if any, should be made in these proceedings.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR/ASSOCIATE

CITATION:	Grogan and ors v First Rate Leisure Pty Limited and ors [2007] NSWADT 294
DIVISION:	Equal Opportunity Division
PARTIES:	FIRST APPLICANT Brett Grogan SECOND APPLICANT Tony Grogan THIRD APPLICANT Wayne Weldon FOURTH APPLICANT David Dargin FIFITH APPLICANT Theresa Towers SIXTH APPLICANT Kristine Bamblett FIRST RESPONDENT First Rate Leisure Pty Limited SECOND RESPONDENT Hugh Halpin THIRD RESPONDENT Damian Terrence O'Reilly FOURTH RESPONDENT Knightland Home Security Pty Limited
FILE NUMBER:	051054, 051055, 051095, 051096, 051097, 051098
HEARING DATES:	29 January 2007, 30 January 2007, 31 January 2007, 1 February 2007, 2 February 2007, 26 March 2007, 27 March 2007, 26 June 2007, 27 June 2007, 28 June 2007
SUBMISSIONS CLOSED:	28 June 2007
DATE OF DECISION:	13 December 2007
BEFORE:	Ireland G - Judicial Member; Weule B - Non Judicial Member; Schneeweiss J - Non Judicial Member
CATCHWORDS:	Race Discrimination - Goods and Services - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 Anti-Discrimination Act 1977Liquor Act 1982
CASES CITED:	Tupou v Scruffy Murphy’s Pty Ltd & Ors [2007] NSWADT 192
REPRESENTATION:	M Tibbey, counsel N Poynder, counsel (First, Second, Third Respondents) A Mooney, counsel (Fourth Respondent)
ORDERS:	1. The complaint of unlawful discrimination on the ground of race is substantiated against the first respondent and against the fourth respondent.; 2. The first and fourth respondents are to pay to each applicant within 21 days, the sum of $15,000, for which the first and fourth respondents are severally liable.; 3. Within 28 days, if the parties are unable to agree as to what orders as to costs are to be made in the proceedings, any one or more of the parties may apply for a hearing for the Tribunal to determine what orders as to costs, if any, should be made in these proceedings.