Higman v Halekulani Bowling Club Limited

[2006] NSWADT 235

CITATION:	Higman & anor v Halekulani Bowling Club Limited [2006] NSWADT 235
DIVISION:	Equal Opportunity Division
PARTIES:	FIRST APPLICANT Cindy Higman SECOND APPLICANT Thomas Ford RESPONDENT Halekulani Bowling Club Limited
FILE NUMBER:	051112 & 051113
HEARING DATES:	13-14/02/2006, 21/02/2006
SUBMISSIONS CLOSED:	02/21/2006
DATE OF DECISION:	08/08/2006
BEFORE:	Smyth M - Judicial Member; Lowe A - Non Judicial Member; Hiffernan N - Non Judicial Member
CATCHWORDS:	Race Discrimination - Registered Club - Sex Discrimination - Registered Club - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42 Brown v Richmond Golf Club & Anor [2006] NSWADT 104 Commissioner of Corrective Services -v- Aldridge [2000] ADTAP 5 Omeri v Quality Assurance Services Pty Ltd (No 2) [2004] NSWADT 105 Pignat v Richmond Valley Council [2005] NSWADT 162
REPRESENTATION:	FIRST APPLICANT T Ford, agent SECOND APPLICANT In person RESPONDENT J Loofs, Barrister
ORDERS:	Ms Higman’s complaints of race and sex discrimination are dismissed; Mr Ford’s complaint of victimisation is dismissed

1 These reasons deal with Ms Higman’s complaint of race and sex discrimination and Mr Ford’s complaint of victimisation. The complaints were heard together as the facts overlapped and evidence in one, so far as it was relevant, was evidence in the other. Although the matters were heard together, for ease of reference this decision deals with each person’s complaint separately.

Ms Higman’s discrimination complaint

2 The President of the Anti-Discrimination Board received a written complaint of race discrimination from Ms Higman on 3 August 2004 and made a decision to refer Ms Higman’s complaint to the Tribunal on 25 August 2005.

3 Ms Higman’s complaint was about her treatment by Mr Edward Mark Knight (Mr Knight), a duty supervisor at the Halekulani Bowling Club (the Club). In her written complaint to the Anti-Discrimination Board she said that on the evening of 30 April 2004 she was in the Bowlers Lounge of the Club watching a telecast of a football match between Australia and New Zealand. She said that Mr Knight had walked up to her while she was cheering for New Zealand, poked her in the shoulder with his finger and yelled, “Shut up and keep your voice down, I can hear you 100 metres away in the Club’s foyer.”

4 In that complaint Ms Higman also said that Mr Tom Ford, a friend, had spoken to Mr Knight at the time, and later that evening had spoken to the head supervisor, about the way that Mr Knight had spoken to her. She and Mr Tom Ford met with Mr Ken Ford, the Club’s secretary manager, and Mr English, the Club’s second in charge, some weeks later in May 2004. She said that at that meeting both Mr Ken Ford and Mr English agreed with her that Mr Knight’s way of talking to staff and people in general left a lot to be desired. However they told her that they could not demote him as “the Board of Directors said that he is to be a supervisor because he plays No 1 Pennants for the Club…”. In her letter of complaint to the President of the Anti-Discrimination Board she said that she felt that the secretary manager and his staff “can not or will not act about Mr Eddie Knight, racist and chovanistic (sic) attitude towards me.”

Amendment of the complaint

5 In her written complaint Ms Higman identified the date of the incident as 30 April 2004. The Tribunal received a letter from Ms Higman on 21 October 2005 changing the date of the incident from 30 April 2004 to 23 April 2004. The respondent had no objection to the amendment of the complaint. Under s 103 of the Anti-Discrimination Act 1977 (the Act) the Tribunal amended the complaint to change the date of the incident from 30 April 2004 to 23 April 2004. Her written complaint included allegations that could amount to sex discrimination. The respondent had no objection to the amendment of the complaint and the complaint was amended under s 103 to include a ground of sex discrimination.

Race and Sex Discrimination under the Anti-Discrimination Act

6 In terms of the Act [ss4A, 7(1)(a) and 24(1)(a)], Ms Higman’s complaint is of direct race discrimination and direct sex discrimination. It is that the Club treated her, a Maori patron, less favourably than the Club treated a patron who was not a Maori in the same or similar circumstances, on the ground of her race. In addition, that the Club treated her less favourably than the Club treated a man in the same or similar circumstances on the ground of her sex.

7 For the conduct to be in breach of the Act it must have occurred in an area of activity covered by the Act. Her complaint is in the area of Registered Clubs. Under the Act it is unlawful for a registered club to discriminate against a member on the ground of race by denying access or limiting access to any benefit provided by the Club [s 20A(2)(a)] or by subjecting the person to any other detriment [s 20A(2)(c)]. Section 34A(2) makes it unlawful for a registered club to discriminate against a member on the grounds of sex and is in similar terms to s 20A(2). We understand Ms Higman’s complaint to be that her access to the benefits provided by the club, the opportunity to watch telecasts of football and cheer on her team, were limited and that she was subjected to a detriment by being told to “shut up” and the Club’s failure to act on her complaint about the conduct of Mr Knight.

8 In determining whether Ms Higman has established her complaint we have applied the civil standard of proof.

9 The test for direct racial discrimination was set out by the Appeal Panel in Commissioner of Corrective Services -v- Aldridge [2000] ADTAP 5. In that case the Appeal Panel posed the question:

Did the Commissioner, on the ground of race (or a characteristic of race) treat Mr Aldridge less favourably than it treated or would have treated a non-Aboriginal person in the same circumstances, or in circumstances which were not materially different? [at 44 ]

10 Adopting that test the issue for this Tribunal is did the Club, on the ground of race or a characteristic of race, treat Ms Higman less favourably than it treated or would have treated a non Maori person in the same circumstances or in circumstances which were not materially different? In regard to sex discrimination did the Club, on the ground of sex or a characteristic of sex, treat Ms Higman less favourably than it treated or would have treated a man in the same circumstances or in circumstances which were not materially different?

Was there less favourable treatment?

11 To satisfy this element the treatment must be objectively less favourable than the treatment afforded to a non Maori patron in the same circumstances or circumstances that are not materially different. Similarly, in relation to sex discrimination, the treatment must be objectively less favourable than the treatment afforded to a man in the same circumstances or circumstances that are not materially different. Ms Higman’s case is that she was treated less favourably than a man or a non-Maori person was treated in the same circumstances or those that are not materially different.

The events of 23 April 2004

12 There is no dispute that Ms Higman was the only Maori woman watching the game. There is also no dispute that Mr Knight, a duty supervisor at the Club, came into Bowlers’ Lounge during the first half of the game and spoke to Ms Higman regarding her level of noise and that she was the only person he spoke to about noise levels during the game on that night. The evidence before us differs about what he said and did when he spoke to her.

13 Ms Higman’s evidence was that she arrived at the Club in the afternoon. In cross examination she agreed that she would have had four drinks and possibly more before the game started. She and Mr Tom Ford continued drinking during the game. She was one of five women and the sole person barracking for New Zealand. Ms Higman said that when Australia scored there was lots of cheering. She said that sometimes she was barracking very loudly and the Australian supporters were not. At other times the Australian supporters were barracking very loudly and she was quiet. She said that she was not the only person yelling and denied that she was the loudest person there.

14 In her written complaint to the President of the Anti-Discrimination Board Ms Higman stated that “while I was cheering for New Zealand and my people” Mr Knight had “ poked me in the shoulder with his finger and yelled to me to “shut up and keep your voice down, I can hear you 100 metres away in the Club foyer.” In oral evidence she added that he had stood next to her, had poked her left shoulder and had said “would you please shut up….”. She stated that he sounded rude when he said it and she was not able to tell how loud or soft his voice was as there was a band playing in the Club at the time. She described the incident as embarrassing for her and hurtful.

15 When cross examined Ms Higman agreed that she had not included the word “please” when she set out what Mr Knight had said in her written complaint to the Anti-Discrimination Board.

16 She told the Tribunal that after Mr Knight spoke to her, her friend Mr Tom Ford yelled at Mr Knight saying, “Why are you speaking to her like that” and told him that “you have no right to speak to her like that”. The second half of the game started, Mr Knight did not say a word and walked back to the front foyer. Ms Higman then kept quiet watching the rest of the game. After the game those watching the game came out and one man asked, “Where’s Eddie?” (referring to Mr Knight) and Mr Rodney Dent, the supervisor, said he had sent him home.

17 Mr Tom Ford’s evidence was that he and Ms Higman both arrived at the Club around 7 pm, had two beers before the game started and that he was on his third or fourth drink at the time of the incident. When Ms Higman’s evidence regarding arrival times and the number of drinks he had was put to him in cross examination he stated that he could have arrived earlier and that he may have had four beers before the game.

18 He stated that just before half time Mr Edward Knight had walked up to Ms Higman and said “Would you shut up, keep your voice down”. He stated that Mr Knight was standing behind her and had poked her in the shoulder. Mr Ford stated that he jumped up and said “What are you doing, why don’t you pick on such and such, what about me”. He stated that he complained to Mr Dent, a Club supervisor on the night and Mr Dent told him he would make an appointment for him to see Mr English, the Operations Manager. Mr Dent was not called by either party to give evidence at the hearing.

19 Mr Summers, a Club patron, said in a statement received by the Board in April 2005 that he was watching the game and saw the supervisor come and tap Ms Higman on the shoulder and say “Keep your voice down, I can hear you from the reception desk.” He also stated that there “were 30+ Australian people going for Australia and one New Zealander”.

20 Mr EJ Knight, a Club patron, said he was sitting next to Ms Higman and that she was the only New Zealand supporter there. He described her as excited and as “tapping the table”, “hitting her hands on the table and singing out”. He said that every time New Zealand got the ball Ms Higman would cheer and “everyone else was having a go at her”. There was quite a bit of noise from people cheering against New Zealand but he stated that their cheering was not as loud as Ms Higman “banging on the table and yelling out”.

21 He said that Mr Knight came up to Ms Higman during the game, stood in front of her and told her to “keep quiet, to quieten down, to just keep the noise down”. He denied seeing Mr Knight poking or tapping Ms Higman or seeing Mr Tom Ford stand up. He said that as Mr Edward Knight turned to leave Mr Tom Ford had said, “We’ll get you for discrimination” and he, Mr EJ Knight, had said, “Don’t be silly”.

22 Ms Higman and Mr Ford’s evidence was that they were seated together next to Mr and Mrs Summers. Mr Edward Knight could not recall who they were sitting next to.

23 Ms Ellis, a bar attendant, was also at the Club on that night. Her evidence was that after she finished her shift she went into the Bowlers’ Lounge. She said that Mr Knight came down to Ms Higman and told her to keep it down. She did not specify the exact words used and it was unclear from her evidence whether she actually heard the words he used.

24 Mr Knight, a duty supervisor working on the night, provided an affidavit and gave oral evidence. In his affidavit of 30 January 2006 he said that:

“… during the first 40 minutes or so of the game, I heard general cheers and clapping from the bowlers bar and also heard a female voice yelling louder than the other voices. The female voice was distinctive and I recognised it as being Ms Cindy Higman’s voice.

25 Later he stated that approximately 40 minutes after the game began he was speaking to his co-supervisor, Rodney Dent and he heard the loud yelling again. He stopped speaking to Mr Dent and “heard the same yelling several more times. During that time a live band was playing in the main lounge”. In oral evidence he stated that he and his co-supervisor, Mr Dent, heard what he described as “an awful screeching sound”. He said that it was not typical of the yelling you would hear at the Club and differed in noise level, continuation and pitch. Later in his evidence he described it as continuous and consistently above everyone else. He stated that he knew that Ms Higman was making that noise as he had worked at the Club for a long time and Ms Higman frequents football matches.

26 He said that Ms Higman was at the first table in front of the screen sitting next to Mr Ford. Mr Ford was at the end of the table. He says he went up to Ms Higman and stood across from her at the corner of the table. He told her that he understood she was watching a football game and could understand that there is clapping and cheering but that he could hear it all they way up the front of the Club. He told her that, “other things are going on in the Club” and he wanted her to “keep it down a little bit.” He said that he asked if that was “OK” and that there was a little nod from Ms Higman and Mr Ford. He then turned around and walked away.

27 He described his tone as diplomatic, controlled, understanding, peaceful and quiet. He denied saying “shut up”. He denied poking Ms Higman in the shoulder or having any physical contact with her. He denied the suggestion that Mr Ford had got up and spoken to him after he had spoken to Ms Higman.

Discussion and Findings

28 Given that Mr Summer was not available for cross examination the reliability and credibility of his evidence could not be tested. Consequently we place little weight on that evidence.

29 The evidence from the other witnesses conflicts. Ms Higman’s evidence was that everyone was yelling and she was no louder than anyone else during the match. Mr Ford’s evidence was that he was louder than Ms Higman. Mr Knight’s evidence was that Ms Higman was yelling louder than everyone else and he described it as “an awful screeching sound”. Mr EM Knight’s evidence was that Ms Higman was tapping the table, hitting the table and singing out.

30 Having had the opportunity to observe all the witnesses give evidence we prefer Ms Higman’s evidence that Mr Knight said, “Would you please shut up, I can hear you from the front foyer”. She readily acknowledged that the inclusion of the word “please” in her oral evidence differed from her written statement and maintained her version of the conversation under cross examination. Mr Knight’s evidence of the conversation appeared to us to be self serving and, having had the opportunity to observe him give evidence, we found his version difficult to accept.

31 Given the conflicting accounts of where Mr Knight was standing we cannot be satisfied that he poked her in the left shoulder. Although Ms Higman stated in her written complaint that Mr Knight had yelled at her, in oral evidence she said that she was not able to tell how loud or soft his voice was as a band was playing. Given that evidence we are unable to find that Mr Knight yelled at her.

32 We accept Ms Higman’s evidence that she was the only New Zealand supporter there. That is consistent with the evidence of at least one other witness, Mr EJ Knight. Consequently it is likely that her voice would have stood out at points in the game where New Zealand was doing well. We accept Mr Knight’s evidence that he could identify her voice as he had worked at the Club for a long time and Ms Higman frequents football matches. That is consistent with Ms Higman’s evidence that she had been a member of the Club since 1997 and had seen a number of football matches broadcast at the Club.

33 In the situation described it is likely that those very engrossed in a game may not be able to accurately determine the level of noise they are making. We find that Ms Higman was yelling at least as loudly as other patrons some of the time. We are not able to determine whether she was louder than others.

34 There is no dispute that she was the only person spoken to about noise by Mr Knight and the only Maori person present. In that respect she was treated less favourably than the other patrons of a different race who may have made an equivalent amount of noise while watching the game.

35 Mr Ford’s evidence was that he was louder than Ms Higman. We cannot determine whether that was the case however we are satisfied from the manner in which he presented his evidence that he would have been as loud as Ms Higman. We find that Ms Higman was treated less favourably by Mr Knight in comparison to a male patron, Mr Ford, who was not asked to be quiet.

Was the less favourable treatment on the ground of Ms Higman’s race or sex?

36 To make out a complaint of discrimination the onus is on Ms Higman to prove that at least one of the reasons for the less favourable treatment was her race or her sex [s 4A]. The test is objective and to make out her complaint it is not necessary for her to prove that Mr Knight intended to discriminate.

37 There is no direct evidence that one of the reasons for less favourable treatment was on the grounds of Ms Higman’s race or sex. There is no evidence that Mr Knight made any overtly racist or sexist comments.

38 When there is no direct evidence that race or sex was one of the reasons for the less favourable treatment it may be possible to prove unlawful discrimination by inference. In Omeri v Quality Assurance Services Pty Ltd (No 2) [2004] NSWADT 105 at 41 the Tribunal stated

While inferences may be drawn from primary facts where there is no direct evidence of discrimination, there must be a proper inference able to be drawn from those facts (see Fenwick v. Beveridge Building Products (1985) 62 ALR 275).

39 It is not enough to prove her case for Ms Higman to say that she was asked to “Please shut up” when others of a different race or sex were not told to in the same circumstances. Ms Higman has pointed to a possibility for Mr Knight’s conduct but that is not sufficient. There needs to be some evidence on which we could infer that her race or sex was one of the reasons for his conduct.

40 Mr Ford’s evidence was that the security officer on duty on the night came in to the lounge six or seven times and did not approach anyone for yelling or clapping. We accept that evidence. Ms Higman claimed that the security officer did not see the need to speak to her and that Mr Knight had no legal right to speak to her. Mr Ken Ford said that the security officer was there to back up supervisors if there were fights. The Club claimed that the use of a security officer can appear heavy handed and that it comes within the duty supervisor’s role to ask patrons to quieten down. We accept the Club’s evidence on this point.

41 In this instance there is a plausible alternative reason for Mr Knight’s conduct. Ms Higman stated that she was cheering loudly and was the only New Zealand supporter there. It is likely that New Zealand was doing well in the game her voice would have been easily heard and would have stood out; probably more so than any individual supporter of the Australian team making an equivalent amount of noise. Accordingly when Mr Knight listened to people watching the game her voice could easily have been distinctive to him and could have been perceived as louder than others.

42 In this instance there is nothing to indicate that Ms Higman’s race or sex was one of the reasons for the less favourable treatment. Ms Higman has not been able to prove on the balance of probabilities that her race and/or her sex constituted one of the reasons for Mr Knight’s speaking to her and telling her to “Please shut up”. For that reason her complaint is not substantiated.

Club’s response to Ms Higman allegations that Mr Edward Knight had acted in a racist and chauvinistic way.

43 In her letter of complaint Ms Higman referred to a meeting held with Mr Ken Ford and Mr David English and said that

“I feel that the secretary manager and his staff can not or will not act about Mr Eddie Knight, RACIST and CHOVANISTIC (sic) attitude towards me….”.

44 It is not in dispute that on 24 April 2004 Ms Higman and Mr Ford spoke to the Operations Manager, Mr English, and expressed their concern about the incident. Mr English said he would look into the matter. There is no dispute that some weeks later, in May 2004, Ms Higman and Mr Tom Ford met with Mr English and Mr Ken Ford, the Secretary Manager of the Club. It is agreed that Ms Higman and Mr Ford complained about the incident at that meeting and requested that Mr Eddie Knight be demoted. It is agreed that Mr Ken Ford told them that this was not possible.

45 The versions differ as to why he said it was not possible. Ms Higman’s evidence was that Mr Ken Ford told her that they could not demote Mr Eddie Knight as he was a number one pennants player for the Club. She said that during the meeting Mr English told Mr Ford to keep quiet because he was talking too much about “pennants players”. Under cross examination Ms Higman agreed that Mr Ken Ford had also said he could not demote Mr Knight because he was an employee and you just can’t demote him. She also agreed that Mr Ford had said he was willing to mediate the issue but that they did not want to mediate.

46 Mr Ken Ford also made a statement and gave oral evidence at the hearing. In cross examination he agreed that Mr Knight had past issues regarding talking to people in conflict situations and that this had been resolved through training. Mr Edward Knight was in training during 2004. Mr Ken Ford also said that when he was asked who employed supervisors he had said that the Club Board had a say.

47 While there may be some issues regarding the thoroughness with which the Club investigated the allegations made by Ms Higman and Mr Ford regarding the events of 23 April 2004, on the evidence before us we are not persuaded that the nature of the investigation the Club instigated into Ms Higman’s allegations and the Club’s decision not to take any further action on the complaint constituted less favourable treatment of Ms Higman on the grounds of her race or sex.

48 On the evidence before us we are not persuaded on the balance of probabilities that Ms Higman was treated less favourably on the grounds of her race or sex by the Club in comparison to the way the Club treated and, or would have treated a patron of a different race or sex in the same or similar circumstances.

49 In regard to Ms Higman’s allegations about the inadequacy of the Club’s investigation and handling of her complaint regarding Mr Knight’s behaviour Ms Higman did not specify an area of activity under the Anti-Discrimination Act. As we have not found that the Club treated her less favourably on the grounds of her race or sex it is not necessary for us to make a finding regarding the area of activity under the Act.

Mr Tom Ford’s complaint of victimisation

50 The President of the Board received a written complaint of victimisation from Mr Tom Ford on 10 January 2005. Mr Tom Ford provided further information about his complaint to the Board on 21 January 2005. The President of the Board referred Mr Tom Ford’s complaint to the Tribunal on 25 August 2005. Mr Ford represented himself in these proceedings.

51 Mr Tom Ford is a member of the Halekulani Bowling Club and on the evening of 21 December 2004 he was refused service of alcohol and asked to leave the Club. The Secretary/Manager of the Club wrote to Mr Tom Ford on 22 December 2004 and told him that he was suspended from the amenities of the Club until Monday 31 January 2005 when the charges were to be heard by the Club’s Disciplinary Committee.

52 The charge was that he had “engaged in conduct unbecoming of a member.” The notice set out the particulars of the charge. These were that on 21 December 2004 his friend was informed that the drink she was buying would be the last issued to Mr Tom Ford as he was displaying signs of being adversely affected by alcohol. When his friend next came to buy a drink for him she was refused and he was then seen drinking from his friend’s glass and poured the remains into his glass. When he was spoken to he became irate and abusive towards the supervisor and threatened to sue the Club. The supervisor left him for a period of time and when he returned Mr Ford “started threatening and ranting”.

53 The Club deferred calling a meeting to hear and determine the disciplinary charges against Mr Tom Ford. The Club President wrote to Mr Ford by letter dated 10 February 2005 and confirmed that he could use the facilities of the Club and that the hearing of the charge would be postponed until his complaint to the Anti-Discrimination Board had been resolved.

54 As we understand Mr Tom Ford’s complaint, he claimed that the initial failure of the Club staff to tell him directly that he was refused service of alcohol and the actions of Mr Laguzza, a duty supervisor, in refusing him service of alcohol and asking him to leave the Club were premeditated and designed to entrap him. His claim is that Mr Laguzza’s actions, the Club’s subsequent decision to suspend his membership, the laying of charges against him and the Club’s failure to hold a quick and speedy hearing into the charges against him subjected him to a detriment. He also claimed that Mr Ken Ford fabricated evidence against him in his letter of 22 December 2004 when he said that Mr Ford was seen drinking out of Ms Higman’s glass.

55 In the language of the Act he claimed that the Club had subjected him to a detriment on the ground that he had complained about the way that Ms Higman was treated by the Club on 23 April 2004, had supported her in the subsequent meeting with the Club management in May 2004 when allegations of racist conduct by Mr Edward Knight, a duty supervisor at the Club, were raised and had provided a statement in support of Ms Higman’s discrimination complaint to the Board. He claimed that the Club has victimised him so that he could not assist Ms Higman with her discrimination complaint.

The events of 21 December 2004

56 Mr Tom Ford, Ms Higman, Mr Laguzza, the Club duty supervisor on 21 December 2004, Ms Ellis, a bar attendant on duty that night, and Mr Ken Ford, the Club Secretary Manager, all gave oral evidence at the hearing. Ms Ellis, Mr Laguzza and Mr Ken Ford also provided affidavits.

57 There is no dispute that Ms Higman and Mr Tom Ford were at the Club on the evening of 21 December 2004 and had a number of drinks. Ms Higman’s evidence is that she and Mr Tom Ford both bought each other drinks. We accept Ms Ellis’s evidence that towards the end of the evening she formed the view that Mr Tom Ford was intoxicated and had a conversation with Mr Laguzza about refusing him further alcohol. Although the evidence of Ms Higman and Ms Ellis differed on some points, their evidence indicates that towards the end of the evening, when Ms Higman purchased two drinks at the bar, Ms Ellis told her that would be the last drink for Mr Tom Ford as he had had enough to drink. Ms Higman agreed that Ms Ellis asked her to tell Mr Tom Ford that.

58 Mr Ken Ford’s evidence was that the Club understanding of laws relating to responsible service of alcohol was that the Club could use a third party to diffuse a situation without it coming into conflict. Club staff did not always tell people directly when they are refused service of alcohol and use intermediaries, such as a friend, where they think that the person is more likely to accept it from them. They do everything in their power to stop a conflict situation.

59 Mr Tom Ford claimed that the Club staff had to tell him personally if he was refused service of alcohol and provided an email from the Department of Gaming and Racing dated 20 February 2006 as proof of this. That email stated in part:

It is a matter for venue management to determine who would advise an intoxicated person that further service is not allowed and they are required to leave the premises immediately. However, in refusing service to a patron it would be expected that the patron would be advised immediately that action had been taken.

60 Ms Higman said she did not tell Mr Tom Ford that he was cut off as he was talking with friends when she returned to the table. Mr Tom Ford said Ms Higman did not tell him. Ms Ellis says she saw Ms Higman say something to Mr Ford but did not hear what she said. Ms Higman subsequently came to the bar and was served one drink. Ms Ellis says she asked for two drinks. Ms Higman denied that and said she got one drink. Ms Higman denied a suggestion that when she returned with one drink Mr Tom Ford asked where his drink was.

61 At some point after Ms Ellis told Ms Higman that Mr Tom Ford could not have any more alcohol Mr Tom Ford picked up Ms Higman’s beer and poured part of it into an empty glass beside him. That is not in dispute and Mr Tom Ford did not offer any explanation for why he had done so. While possibly he did that because he knew he had been refused service of alcohol, there may have been a number of reasons for him doing so. On the evidence before us we are unable to determine whether Ms Higman told Mr Tom Ford that he was refused service of alcohol.

62 Mr Tom Ford said that Mr Laguzza then came over and said, “I’ve got you, I’ve got you, I’ve got you”. He asked “what for?” and was told that he had been refused service of alcohol and that Ms Ellis had informed Ms Higman of this and asked her to tell him. Mr Ford then protested that this was not lawful and that he must be told face to face that he was refused service of alcohol. Ms Higman’s evidence of the conversation was consistent with Mr Tom Ford’s.

63 Mr Laguzza denied saying “I’ve got you, I’ve got you, I’ve got you” and said that he saw Mr Ford pouring a full schooner into an almost empty glass in front of him and that he went over and said, “Tom you cannot drink any more. You have been cut off.”

64 Ms Higman’s evidence was that “there might have been some words” between Mr Laguzza and Mr Tom Ford and described the incident as “normal shouting”. We find that there was an argument between Mr Laguzza and Mr Tom Ford and accept Mr Laguzza’s evidence that Mr Ford was screaming at him. Although it is possible that Mr Laguzza said, “I’ve got you, I’ve got you, I’ve got you” we cannot be satisfied on the balance of probabilities that was the case.

65 There are conflicting accounts as to whether Mr Laguzza then returned to the bar for a short period. It is agreed by both men that at the end of their conversation Mr Laguzza offered to refund the price of Mr Tom Ford’s beer and told him he had to leave. Mr Tom Ford refused the refund and got up to leave. He said that he told Mr Laguzza that he felt discriminated against and was going to the appropriate authorities. Mr Laguzza described him as giving a “verbal spray”. Mr Tom Ford then went out to the foyer and waited for the courtesy bus to take him home. We accept the evidence of Ms Ellis regarding Mr Tom Ford’s departure from the room. She described it as “Not in an orderly manner”.

66 Mr Laguzza agreed that he made an entry in the Club’s incident book for that day under the heading Responsible Service of Alcohol. The entry stated, “I told Cindy he was to have no more. She got one for herself and he drank it and yelled abuse at me …”. He told the Tribunal he had assumed that Mr Tom Ford had drunk the beer.

67 Mr Tom Ford denied drinking from the glass; Ms Higman stated he did not drink out of it. Under cross examination Mr Laguzza stated that he did not see him actually drink out of it and Ms Ellis did not say anything about him drinking from the glass. On that basis we cannot be satisfied that Mr Tom Ford drank out of the glass.

68 Mr Laguzza’s written report of the incident was dated 22 December 2004. In that report he stated that he witnessed Mr Tom Ford “pouring the full schooner into an almost empty glass in front of him” but made no mention of Mr Ford drinking from Ms Higman’s glass. He also referred to Mr Tom Ford as “barking and yapping”.

69 Mr Laguzza gave evidence of Mr Tom Ford having been refused service of alcohol on a number of previous occasions. We accept that evidence.

70 Mr Tom Ford claimed he was “entrapped” as the Club staff did not directly inform him that he had been refused service of alcohol but rather informed his drinking companion, Ms Higman, who did not tell him that he had been refused service. Mr Ford claimed that Mr Laguzza had set him up. He claimed that the Club’s notice of disciplinary charges stated that he was seen drinking out of Mrs Higman’s glass and there was no evidence he had done that. He claimed that Mr Ken Ford had lied and fabricated evidence to victimise him and have him removed so he could not represent Ms Higman.

Victimisation under the Anti-Discrimination Act

71 Section 50 of the Act states

(1) It is unlawful for a person ( the discriminator ) to subject another person ( the person victimised ) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

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

72 Under the Act the onus is on Mr Tom Ford to prove on the balance of probabilities that the Club caused him to undergo or experience something and he suffered a consequential detriment. The Tribunal explained the meaning of detriment in Pignat v Richmond Valley Council [2005] NSWADT 162 at [11] as

The word “detriment” should be given its ordinary meaning of “loss, damage or injury”. (The Macquarie Dictionary, 3rd edition, The Macquarie Library.) The detriment suffered must be “real and not trivial” and “whether something constitutes a detriment must be determined objectively and not subjectively”: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41].

73 In that case the Tribunal also referred to the definition of ‘detriment’ for the purposes of victimisation in Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42 at [172]-[173] stating [at 41]:

The Tribunal in that case preferred the definition of "detriment" in Bogie v The University of Western Sydney [(1990) EOC 92–313]. In that case, following Hill v Water Resources Commission (1985) EOC 92–127 at 76,290, the Tribunal held that all that was required to constitute a "detriment" in a victimisation complaint is that the complainant has been placed under a disadvantage as to a matter of substance, as distinct from a trivial matter (at 78, 146).

74 It is not in issue that Mr Ford was refused service of alcohol, was told to leave the Club, had his membership suspended, was charged with conduct unbecoming a member and faces a hearing of that charge by the Club that could result in his membership being revoked.

75 We are satisfied that these actions placed Mr Ford under a disadvantage as to a matter of substance and that he was subjected to “loss, damage or injury” that is real and not trivial. Consequently we find that the Club did subject him to a detriment.

76 In some circumstances the postponement of a hearing into a charge against a Club member could amount to a “detriment”. The Club decided to postpone the hearing into the charge against him and allow him to use the Club facilities until his complaint to the Anti-Discrimination Board had been resolved. In effect the Club has maintained Mr Tom Ford’s position prior to the notice of suspension and charges until his victimisation complaint is dealt with. In this instance we are not persuaded that the Club’s decision to postpone the hearing in these circumstances places Mr Tom Ford under a disadvantage as to a matter of substance or amounts to loss, damage or injury.

Was Mr Ford subjected to a detriment on the ground that he did one of the things set out in s 50(1)(a)-(d)?

77 It is not sufficient for Mr Tom Ford to prove that he has been subjected to any detriment. He must also establish a causal link between the detriment and him having done one of the things listed in s 50(1)(a)-(d). Section 4A of the Act does not apply to the victimisation provisions and the meaning of the term “on the ground of” in the victimisation provisions has been considered in a number of previous cases.

78 In Brown v Richmond Golf Club & Anor [2006] NSWADT 104 85 the Tribunal reviewed the authorities and adopted the approach taken in Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT. Referring to that case the Tribunal said at [85]

…the test was stated to be ‘sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of ... discrimination, had a real causative effect in the sense that but for its presence the act complained of would not have occurred’.

79 We adopt that test here.

80 We find that both Mr Ken Ford and Mr English, senior personnel at the Club, were aware that both Ms Higman and Mr Tom Ford had alleged that Mr Knight had engaged in racist conduct against Ms Higman on the night of 23 April 2004. On the evidence of Mr Ken Ford, Ms Higman and Mr Tom Ford we are satisfied that at a meeting in May 2004 Ms Higman and Mr Tom Ford raised their concerns about Mr Knight’s behaviour being racist. The Club’s own evidence from Mr Ken Ford was that he thought that the meeting ended with Mr Tom Ford saying that if Mr Knight was not demoted there could be a discrimination claim. We find that Mr Tom Ford had alleged that Mr Edward Knight had in the words of 50(1)(c) “committed an act which, whether or not the allegation so states, would amount to a contravention” of the Act.

81 Mr Ken Ford also gave evidence about another meeting in July 2004 with Mr Tom Ford regarding an allegation that a staff member had said words to the effect of “ he was a bit unsteady on his feet.” about Mr Tom Ford. He stated that the prospect of a discrimination complaint was raised at that meeting.

82 Mr Tom Ford provided a statement dated 22 July 2004 that was included as part of Ms Higman’s complaint of discrimination regarding Mr Edward Knight’s treatment of her at the Club received by the Board on 3 August 2004. We find that Mr Tom Ford provided information in connection with proceedings brought by Ms Higman under the Act.

Is there a causal link between the detriment Mr Tom Ford suffered and Mr Tom Ford’s actions?

83 Mr Tom Ford’s case as we understand it is that he was subjected to the detriment outlined above on the ground that he had supported Ms Higman by raising allegations about discrimination against her on the night of 23 April 2004, in the subsequent meeting with the Mr English and Mr Ken Ford that he attended with Ms Higman in May 2004 to discuss those allegations and by providing a statement in support of her complaint lodged with the Anti-Discrimination Board in August 2004.

84 Mr Ken Ford also said the possibility of a discrimination complaint was raised at a meeting in July 2004 by Mr Tom Ford regarding a separate incident concerning the way Mr Ford was spoken to by a staff member.

85 Mr Laguzza, the duty supervisor at the Club on the evening of 21 December 2004 stated that he was “vaguely” aware of the events of 23 April 2004 concerning Ms Higman and Mr Knight through talking with other staff. We find that he did know about those events.

86 On the evidence before us we cannot be satisfied that Mr Laguzza knew of the subsequent meeting between Mr English, Mr Ken Ford, Mr Tom Ford and Ms Higman in May 2004 and the allegations of discrimination that Mr Ford made at that meeting or the raising of a possibility of a discrimination complaint in July 2004. Nor can we be satisfied that as at 21 and 22 December 2004 Mr Laguzza knew that Ms Higman had lodged a discrimination complaint with the Anti-Discrimination Board or that Mr Tom Ford had provided a statement in support of that complaint.

87 The meeting with Club management where Ms Higman and Mr Tom Ford alleged that Ms Higman had been discriminated against on 23 April 2004 and indicated they may lodge a discrimination complaint occurred in May 2004. We accept Mr Ken Ford’s evidence that, as at 21 December 2004, the Club had heard nothing about any discrimination complaint being lodged with the Anti-Discrimination Board. The Club was not notified by the Anti-Discrimination Board of any complaint being lodged until 11 January 2005.

Mr Laguzza’s conduct

88 On the evidence before us we are satisfied that Mr Laguzza believed that Mr Tom Ford was intoxicated on the basis of what Ms Ellis had told him. We are satisfied that this belief and his understanding of his responsibility not to permit an intoxicated person to remain on the premises or to allow quarrelsome conduct on club premises were significant reasons for him refusing Mr Tom Ford service of alcohol and asking him to leave the premises on 21 December 2004.

89 The evidence also indicates that there was some tension between Mr Laguzza and Mr Tom Ford and we find that this also had a role in his treatment of Mr Tom Ford. For example, Mr Laguzza told the Tribunal that he had refused service of alcohol to Mr Tom Ford on previous occasions. He also referred to Mr Tom Ford as “barking and yapping” in his incident report, hardly a professional or objective observation of a patron’s conduct.

90 The fact that tension existed between them is not sufficient to prove that Mr Laguzza subjected Mr Tom Ford to a detriment on the ground that Mr Tom Ford had alleged that Mr Edward Knight’s treatment of Ms Higman in April 2004 amounted to race or sex discrimination [s50(1)(c)], that Mr Tom Ford had provided information in connection with proceedings brought by Ms Higman under the Anti-Discrimination Act [s50(1) (b)] or had done anything else referred to in s 50(1).

The charges and suspension from the Club

91 The letter Mr Ken Ford sent to Mr Tom Ford telling him of his suspension and the charges against him was dated 22 December 2004. Mr Ken Ford told the Tribunal that he spoke to Ms Ellis and Mr Laguzza and he relied on the written incident report in drafting his letter. He said that he got an incident report within three or four days of the incident and that he did not write the letter until 10 days afterwards. That evidence is difficult to accept given that the letter was dated the day after the incident.

92 Mr Ken Ford said that he did not take into account Mr Laguzza’s statement in the incident book in writing the letter to Mr Tom Ford and that the inclusion of the allegation that Mr Tom Ford was seen drinking from his friend’s glass was a mistake. As Mr Laguzza’s entry in the incident book is the only source of the allegation that Mr Tom Ford drank from that glass that was in evidence before us, and that was included in his letter to Mr Tom Ford, we do not accept his claim that he did not consider it.

93 We accept Mr Ken Ford’s evidence that in the period July to December 2004 that there was no indication from Ms Higman or Mr Ford that they intended to bring a discrimination complaint. We accept his evidence that he did not know of the discrimination complaint lodged by Ms Higman until the Board’s letter dated 11 January 2005. We also accept his evidence that he relied on the reports of his staff in writing the letter of 22 December 2004.

94 In this instance the onus is on Mr Tom Ford to prove on the balance of probabilities that his allegations that Mr Knight had discriminated against Ms Higman, his allegation of discrimination regarding the incident raised at his meeting with Mr Ford in July 2004, his provision of information in connection with Ms Higman’s complaint to the Anti-Discrimination Board and, or, any other conduct under s 50(1) had a real causative effect on the actions of Mr Ken Ford and the Club.

95 The meeting at which allegations of race discrimination against Ms Higman were raised with the Club occurred over six months previously, the other meeting at which Mr Tom Ford has raised the possibility of a discrimination complaint occurred in July and the Club had heard nothing since. The Club was not aware that Ms Higman had actually lodged a discrimination complaint and that Mr Tom Ford had provided a statement in support of her complaint.

96 On the basis of the evidence before us we are not satisfied on the balance of probabilities that there was a causal link between the detriment Mr Tom Ford was subjected to and him having done anything set out in s 50(1)(a)-(d). Accordingly Mr Tom Ford’s complaint of victimisation is dismissed.