Ivanovic v The Trustee for Chelsea Chatswood Unit Trust trading as the Chelsea Hotel
[2018] NSWCATAD 151
•17 July 2018
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Ivanovic v The Trustee for Chelsea Chatswood Unit Trust trading as The Chelsea Hotel [2018] NSWCATAD 151 Hearing dates: 10 July 2018 Date of orders: 17 July 2018 Decision date: 17 July 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: (1) Leave is refused for Mr Ivanovic’s complaint to be the subject of proceedings before the Tribunal.
Catchwords: ANTI-DISCRIMINATION – Leave for complaint to proceed – Whether fair and just for complaint of age discrimination to proceed Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Bacirongo v ACL Pty Ltd [2011] NSWADT 12
Jones v Ekermawi [2009] NSWCA 388
Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94Category: Principal judgment Parties: David Ivanovic (Applicant)
The Trustee for Chelsea Chatswood Unit Trust t/as The Chelsea Hotel (Respondent)Representation: Solicitors:
In person (Applicant)
Andrew Hoff, licensee (Respondent)
File Number(s): 2018/00121958
REASONS FOR DECISION
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Mr Ivanovic alleges that he was discriminated against on the ground of age in breach of the Anti-Discrimination Act 1977 (NSW) (“AD Act”) by the respondent (“the Hotel Owner”). The Hotel Owner banned him from entering the Chelsea Hotel for twelve months after he punched another hotel patron. He claims that the Hotel Owner would not have done this if he were younger or that one of the reasons for this decision was his age.
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The President of the Anti-Discrimination Board declined Mr Ivanovic's complaint as lacking in substance. Mr Ivanovic needs the Tribunal's permission before his complaint can proceed: AD Act, s 96.
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The Tribunal may give Mr Ivanovic permission for his complaints to go ahead if it is fair and just to do so: Jones v Ekermawi [2009] NSWCA 388; AD Act, s 96(1). The onus is on Mr Ivanovic to satisfy the Tribunal that leave should be granted: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 at [2]; Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 at [3].
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I have decided not to give Mr Ivanovic permission for his complaint to go ahead because it is very unlikely that he would be able to substantiate it.
background
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On 9 January 2017, Mr Ivanovic was a patron at the Chelsea Hotel (“the Hotel”). Mr Ivanovic described himself during the hearing as being middle aged.
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A younger man, whose age Mr Ivanovic estimated to be around 19 or 20, was at the Hotel at the same time. According to Mr Ivanovic, the younger man engaged in anti-social behaviour which included trying to purchase drugs, refusing to leave when asked to do so by bar staff and abusing and threatening Mr Ivanovic. At one point he threatened to stab Mr Ivanovic.
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After the threats had been continuing for some time, Mr Ivanovic approached the younger man. At this time, the younger man was accompanied by a friend. In Mr Ivanovic’s words, Mr Ivanovic then “thumped him one.” Mr Ivanovic said that this punch was in self-defence, given the continual verbal threats being made to him by the younger man.
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The incident report, made by the Assistant Manager at the Hotel, states that “P2” (being Mr Ivanovic) “intervened with violence and aggression.”
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Immediately following this incident, the licensee of the Chelsea Hotel at the time, Mr Christian Gray, decided to ban Mr Ivanovic from entering the Hotel for twelve months.
COMPLAINT
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Mr Ivanovic’s complaint of age discrimination rests on the following facts and circumstances.
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Mr Ivanovic says he was told by another Hotel patron, shortly after the incident described above, that he had been banned from the Hotel for six months. He initially accepted this and did not return to the Hotel during this period. After the six month period, he returned to the Hotel and had a conversation with the Assistant Manager who wrote the incident report (although he was not aware that this had occurred). He says that she told him that the ban was indefinite.
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According to Mr Ivanovic, the Assistant Manager said to him words to the effect, “They were just kids. You should have ignored them.” Mr Ivanovic claims that this is evidence that the Hotel Owner, through its staff, would not have treated a younger person in the same way that it treated him.
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Mr Andrew Hoff, who appeared at the hearing on behalf of the Hotel Owner, gave evidence that the ban was always a 12-month ban. This is confirmed by the incident report dated 9 January 2017.
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Mr Ivanovic’s belief that his original ban was for six months was based upon a verbal report from another patron. The Hotel Owner, not knowing Mr Ivanovic’s name or contact details, did not inform him of it at the time.
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Mr Hoff was not the Hotel’s licensee at the time the incident occurred. He became its licensee five or six months later. Whilst he was not an employee at the Hotel when the incident occurred, his evidence was that it was the licensee’s decision, not the Assistant Manager’s decision, as to the period for which a person was banned. He also said that both he and Christian Gray had worked in other venues where there was a policy that one punch resulted in a ban of twelve months.
RElevant LEGISLATIVE provisions
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It is unlawful for a provider of goods or services to discriminate against a person on the grounds of age by refusing to provide the person with those goods or services (AD Act, s 49ZYN(1)(a)). There is no dispute that the Hotel Owner provides goods and services.
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Mr Ivanovic relies upon the Hotel Owner’s liability for the acts of its employees, pursuant to s 53(1) of the AD Act, which provides:
“53 Liability of principals and employers
(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.”
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The meaning of discrimination on the ground of age is set out in s 49ZYA. Mr Ivanovic is alleging “direct discrimination” as provided for by s 49ZYA(1)(a). Section 49ZYA provides, relevantly:
“49ZYA What constitutes discrimination on the ground of age
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if the perpetrator:
(a) on the ground of the aggrieved person’s age …, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group …
…
(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.”
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To prove direct discrimination on the ground of age, Mr Ivanovic would have to establish that:
The Hotel (or its staff) has refused to provide him with goods or services (which is not disputed);
that treatment is treatment that is less favourable than the treatment that was or would have been given to a person who was of a younger age (differential treatment);
at least one of the reasons for that treatment was Mr Ivanovic’s age (or a characteristic that is generally imputed to persons who are of his age or age group) (causation).
CONSIDERATION
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I consider that it is unlikely that Mr Ivanovic could establish that he was treated less favourably than a younger person would have been in similar circumstances. There is very little evidence which suggests that, if he were younger, he would not have been banned for twelve months for punching another hotel patron. The evidence is the other way. Mr Hoff’s evidence that there is a policy in a number of venues of a punch resulting in a 12-month ban is plausible and likely to be accepted if the proceedings were to be heard in the Tribunal.
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It is also unlikely that Mr Ivanovic would be able to prove that one of the reasons for the ban was his age. Mr Gray, the licensee who made the decision to ban Mr Ivanovic, did not give evidence. However, it appears from the incident report, which was signed by both the Assistant Manager and Mr Gray, that the decision was most likely based upon what was contained in that report. That report referred to the conduct of “P2” but not to his age.
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Mr Ivanovic’s claim of age discrimination is based upon words he says were spoken by the Assistant Manager. The Assistant Manager was not the person who made the decision about banning Mr Ivanovic from the Hotel. Thus, Mr Ivanovic has not established that her views about how he should have responded to the younger man had any bearing upon the decision to refuse to provide him with goods and services.
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If Mr Ivanovic is claiming that a reason for the decision to “extend” the ban past six months was his age, I consider that it is unlikely he will be able to prove that the ban was extended to 12 months. The evidence strongly suggests that the ban was always for 12 months.
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Mr Ivanovic has not discharged his onus of persuading the Tribunal that the complaint has sufficient merit to make it fair and just for it to proceed. The complaint of direct age discrimination is highly likely to fail because there is no direct evidence, or evidence from which an inference can be drawn, that Mr Ivanovic’s age was a reason for the respondent’s refusal to provide him with goods or services. The evidence supports the conclusion that Mr Ivanovic was banned from the Hotel solely because he punched another patron.
Order
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The Tribunal makes the following order:
Leave is refused for Mr Ivanovic’s complaint to be the subject of proceedings before the Tribunal.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 17 July 2018
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