Hurst v Star City Pty Ltd (EOD)

[2010] NSWADTAP 81

Appeal Panel - Internal

CITATION:	Hurst v Star City Pty Ltd (EOD) [2010] NSWADTAP 81
PARTIES:	APPELLANT Paul Hurst RESPONDENT Star City Pty Ltd
FILE NUMBER:	109024
HEARING DATES:	28 July 2010
SUBMISSIONS CLOSED:	28 July 2010
DATE OF DECISION:	6 December 2010
BEFORE:	O'Connor K - DCJ (President); Grotte E - Judicial Member; Field B - Non-Judicial Member
CATCHWORDS:	EQUAL OPPORTUNITY - Alleged unlawful transgender discrimination - Complaint dismissed - Challenge to findings of fact and as to credibility - Appeal dismissed
DECISION UNDER APPEAL:	Hurst v Star City Pty Ltd (No. 2) [2010] NSWADT 65
FILE NUMBER UNDER APPEAL:	081040
DATE OF DECISION UNDER APPEAL:	03/09/2010
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Abalos v Australian Postal Commission (1990) 171 CLR 167 Agbaba v Witter (1977) 14 ALR 187 CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hinton v Commissioner for Fair Trading, Office of Fair Trading [2007] NSWADTAP 17 Hurst v Star City Pty Ltd [2009] NSWADT 65 Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57 Rosenberg v Percival (2001) 205 CLR 434 Star City Pty Ltd v Hurst (EOD) [2009] NSWADTAP 35 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3 Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227
REPRESENTATION:	APPELLANT In person RESPONDENT K Eastman, counsel / R Rosedale, Mallesons Stephen Jaques
ORDERS:	Appeal dismissed

1 The appellant, Mr Hurst, made a complaint under the Anti-Discrimination Act 1977 (AD Act) to the President, Anti-Discrimination Board asserting that he was unlawfully discriminated against by the respondent. He alleged that the respondent refused him entry to its entertainment premises on the ground of his transgender status. The relevant provisions are ss 38A (meaning of transgender person or imputed transgender person), 38B (what constitutes discrimination on transgender grounds), 38M (unlawful to discriminate on transgender grounds in the provision of goods and services).

2 The respondent does not concede that Mr Hurst is a transgender person or imputed transgender person entitled to the protection of the AD Act. Further and more fundamentally, the respondent denies the factual foundation of the appellant's claim. It has consistently asserted that its staff did not prevent him from entering its premises on the night of 1 November 2006. It does admit refusing entry to his companion Mr Pitt, but on a lawful ground. According to it, Mr Pitt was wearing a short dress that was so revealing that it infringed its dress code. Mr Pitt is not a complainant.

3 The respondent applied to the Tribunal for summary dismissal of the complaint. The Tribunal refused the application. The respondent appealed unsuccessfully: Star City Pty Ltd v Hurst (EOD) [2009] NSWADTAP 35. However, the Tribunal upheld the respondent's objection to leave being granted to Mr Hurst to amend his complaint to add a complaint of sex discrimination.

4 The Tribunal has now dismissed the substantive complaint (see Hurst v Star City Pty Ltd [2009] NSWADT 65), and Mr Hurst has appealed against that decision pursuant to s 115 of the AD Act. An appeal may be made on a question of law, and with the leave of the Appeal Panel, be extended to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113.

5 The Tribunal largely accepted the security guard's account of his interaction that evening with Mr Pitt and Mr Hurst. The Tribunal was satisfied that Mr Hurst was not barred, only Mr Pitt, and in Mr Pitt's case it was on the basis of the dress code. As the factual premise on which Mr Hurst relied was not accepted, the Tribunal declined to go on and consider other issues such as whether Mr Hurst was a transgender person or imputed transgender person.

6 Mr Hurst remains firmly of the view that he was spoken to inappropriately that night by the security guard, and that he was treated in the same way as Mr Pitt.

7 The guard's evidence was that the casino had no difficulty in allowing transgender people or people who cross-dressed (and may or may not be transgender persons) to visit its premises. The Tribunal did not accept in its entirety Mr Hurst's version of what was said to him by the security guard. Mr Hurst asserted that the guard said: 'You are known here as a man, you are not dressed appropriately and I’ll have to ask you to leave.’

Grounds of Appeal

8 Mr Hurst did have legal representation before the Tribunal. However at the appeal he had no representation, and gave the following as his grounds of appeal:

i. Error of fact – that Mr Pitt was dressed in a way that did not comply with the Dress Code;

ii. Mistaken finding to suggest that Mr Pitt was asked to leave rather than Mr Hurst, when Mr Hurst attended the Surry Hills Police Station to complain about being asked to leave;

iii. That the Tribunal was in error for failing to deal with a letter from Mallesons Stephen Jaques because neither Mr Pitt nor Mr Hurst was dressed in the manner there suggested;

iv. The Tribunal made an error of fact that either Mr Pitt or Mr Hurst were dressed in a manner that did not comply with the Dress Code;

v. The transcript displays that Mr Munro “advises I was not asked to leave".

9 Mr Hurst also applied for leave to review the merits.

10 On their face, none of these grounds raise questions of law: see further, Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57 at [14]. On their face the grounds of appeal are challenges to alleged findings of fact. We note that the established principle is that a finding of fact does not give rise to a question of law, even it is perverse in the sense that it is heavily against the weight of the evidence. An error of law can only arise in the more extreme circumstance of no probative evidence for the finding or there is no evidence at all.

11 Nonetheless, in the interests of bringing some resolution to Mr Hurst's sense of grievance, we will deal briefly with the points raised.

12 Ground 1: Mr Hurst complains that the Tribunal made a factual error in finding that Mr Pitt was dressed in a way that did not comply with the dress code.

13 The Tribunal did accept Mr Munro’s evidence 'about the circumstances in which he approached Mr Hurst and Mr Pitt and most of the substance of the conversation he had with them': at [17]. The case put by Mr Hurst was that he was assumed to be a transgender person and discriminated against by being barred on that ground. Strictly, it was not necessary for the Tribunal to reach a conclusion as to Mr Pitt's dress. Mr Pitt was not a complainant. If it did make an error, as Mr Hurst asserts, that still leaves Mr Hurst with the task of proving his own case.

14 The Tribunal made the same point in the following passage of its reasons:

Even if Mr Munro did indicate that both Mr Pitt and Mr Hurst should leave, the reason for indicating that they should do so was that he formed the view that Mr Pitt’s attire did not comply with the dress code. That conduct does not constitute discrimination on the ground of transgender status in relation to Mr Hurst.

15 We note, in further support of its finding as to the way Mr Pitt was dressed and the way Mr Hurst was dressed, the Tribunal had contemporaneous records from the respondent's officers including: a record from the shift summary for 1 November 2006 at 22.10; the email from the shift supervisor, Mr Hassan, setting out the circumstances surrounding a possible complaint; and the security duty manager's log, referred to at para [12].

16 Ground 2: Mr Hurst submitted under this heading that the Tribunal had made a similar error in relation to the later event of the visit by he and Mr Pitt to the Surry Hills police station. In our view, again there was evidence available to the Tribunal allowing for this finding, and it is set out in the reasons: see in particular the Tribunal’s reasons at [19]. In any case, this is not an issue that makes any difference to the case against the respondent.

17 Ground 3: Mr Hurst complains that the Tribunal failed to consider a letter from the solicitors for the respondent dated 30 August 2007, which he sees as support for his error of fact case. The solicitors' letter asserted:

Mr Hurst was wearing an extremely short skirt that barely covered his groin region. White underwear and garters worn by Mr Hurst were visible. The Officer asked Mr Hurst if it was possible for him to pull down the skirt in order to allow Mr Hurst entry into the casino. As this was not possible, the Officer indicated to Mr Hurst that he did not meet the dress standards required by Star City and asked Mr Hurst to leave the Casino.

18 The letter was included in the President of the Anti-Discrimination Board’s Report when the complaint was referred to the Tribunal on 15 April 2008. A statement in a solicitors' letter is not evidence, though it may open the possibility of cross-examination directed to the instructions given by the respondent. The Tribunal had the task of assessing any line of cross-examination of that kind.

19 In this instance the solicitors quickly corrected the letter (9 October 2007) and substituted Mr Pitt's name. Further, as counsel for the respondent noted at the appeal hearing, Mr Hurst did not seek to rely on this correspondence in his points of claim, and he was represented by experienced counsel at first instance.

20 Ground 4: Mr Hurst contends that the Tribunal made an error of fact because neither Mr Pitt nor Mr Hurst were dressed in a manner that did not comply with the dress code. This is a factual allegation that has already been addressed in Grounds 1 and 2. It was open to the Tribunal to make that finding.

21 Ground 5: This ground of appeal is unclear. It appears to put in issue again Mr Munro’s evidence that he did not bar Mr Hurst. The Tribunal preferred the security guard's account and to that extent regarded Mr Hurst's where there were contradictions as less credible.

22 In relation to assessments of this kind, an Appeal Panel should make “all due allowance for the advantages available to the trial judge”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, at [29]. An appellate body should not interfere with credibility based findings unless satisfied:

(i) that the trial judge “palpably misused the advantage … of seeing and hearing the witnesses” or that the advantage “could not be sufficient to explain the trial judge's conclusion”: Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178–9; Rosenberg v Percival (2001) 205 CLR 434 at 447–8; [92]; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 477, 478–9, 481; Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227; or

(ii) that the findings are inconsistent with, or glaringly improbable having regard to, incontrovertible evidence: Fox v Percy , above, at [30], [31]; Agbaba v Witter (1977) 14 ALR 187 at 195; 51 ALJR 503 at 508 per Jacobs J; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3 at [72] [81].

23 Neither of these two circumstances can be said to exist in the present case.

Additional Matters Raised in Mr Hurst’s Submissions

24 Complaint of sex discrimination. Mr Hurst raised the issue of leave being refused to his sex discrimination claim. It is far too late in the proceedings for this issue to be revived. It does not form part of the notice of appeal.

25 Credibility Generally. At the appeal hearing Mr Hurst objected to the following passage as it reflected on him, especially the words we have italicised:

16 Hurst’s credibility. Mr Hurst attached to his statement of 10 November 2008 a photograph of what he was wearing on 1 November. That photo depicts him in a red and black long sleeved dress, a red feather boa, blue gloves and pearls. This was not what the CCTV footage shows him as wearing on that night. Mr Hurst conceded that it was possible that he was wearing a black dress and a jacket, rather than the outfit in the photograph but says he included the photo to give ‘colour and flavour’ to his statement. This concession suggests that Mr Hurst is willing to embellish his evidence, in some respects, in order to support his complaint .

26 We have reviewed the transcript. We accept Mr Hurst's submission that he did not concede in the course of his oral evidence that he included the photo to “give ‘colour and flavour’ to his statement”. We accept that in his oral evidence Mr Hurst did largely repeat the position that "I do believe that I wore a black and red dress to the best of my recollection."

27 There is other evidence that supports the first half of the statement in the second-last sentence, i.e. the statement that 'Mr Hurst conceded that it was possible that he was wearing a black dress and a jacket, rather than the outfit in the photograph'. For example, there is a concession in Mr Hurst's affidavit of 18 September 2009 at [15]: "I do have a black dress and it is possible that I was wearing it. If I was wearing a black dress, then it was three quarter length with short sleeves, covering the torso completely to the neck. I cannot recall now whether I had a jacket as well."

28 As to the conclusion that he is willing to embellish his evidence, we simply note that there are some points in the evidence where Mr Hurst varied his position under cross-examination as to what he was wearing. For example, see the following exchange in cross-examination (see transcript, 12 October 2009, page 48):

Q. So in terms of looking at this photograph, would you agree with me that the only thing that you can be certain that you wore, as depicted in this photograph, is the red wig?

A. No, I believe I would have worn the pearls … and I certainly would have had gloves on and I certainly would have had the adjacent cuffs with the gloves as well.

29 We note also the Tribunal's account of the CCTV evidence at [5] of its reasons. Mr Hurst has consistently denied that the footage shows himself and Mr Pitt. The Tribunal clearly disbelieved him. There were other problems with his evidence. For example, while he claimed that he was so offended and humiliated by this incident, he had been unable to attend the Casino, or at least unable to attend as often as in the past, there was some evidence, in documentary form from the Casino to show that this was untrue.

30 The Tribunal's general conclusion as to his credibility was clearly available to it on the evidence.

Leave to extend to the merits

31 There is no justification for re-opening Mr Hurst's complaint. The findings on the evidence were open to the Tribunal. Mr Hurst's account of how he was dealt with was rejected, with the exception of it being accepted, on balance, that the guard used the words 'You are known here as a man'. The Tribunal was satisfied that Mr Hurst was not refused a service or provided with a service on unfavourable terms.

32 The discretion to grant leave is, we accept, a broad one. Nonetheless, the Appeal Panel's role is essentially supervisory. It should not lightly accede to a request to conduct a second trial. In Hinton v Commissioner for Fair Trading, Office of Fair Trading [2007] NSWADTAP 17 the Appeal Panel cited with approval at [85] the observations made by McHugh J in CDJ v VAJ[1998] HCA 76; (1998) 197 CLR 172 at [111] there dealing with an appeal court's power to permit an appeal on a question of fact. His Honour noted that such a facility is "not intended to have the practical effect of obliterating the distinction between original and appellate jurisdiction".

33 The application is refused.

Order

Appeal dismissed.