Jones v Burraga Sports and Recreation Club Ltd

[2001] NSWADT 184

CITATION:	Jones -v- Burraga Sports and Recreation Club Ltd [2001] NSWADT 184
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS Alan Jones Kathy Jones RESPONDENT Burraga Sports and Recreation Club Ltd
FILE NUMBER:	991017
HEARING DATES:	02/07/2001, 03/07/2001
SUBMISSIONS CLOSED:	07/03/2001
DATE OF DECISION:	11/09/2001
BEFORE:	Hennessy N (Deputy President); McDonald O - Member; McDaniel M - Member
APPLICATION:	Race Discrimination - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Registered Clubs Act 1976
CASES CITED:	United Bonded Fabrics Pty Ltd v Roseman [2000] NSW ADTAP 13 Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 Jones v Dunkel [1958-1959] 101 CLR 298 Branki v Mingot (1976) 12 ALR 551
REPRESENTATION:	APPLICANTS M Rollinson, barrister RESPONDENT A Moses, barrister
ORDERS:	1. The complaint of race discrimination made by Mr Alan Jones is dismissed. ; 2. The complaint of race discrimination made by Ms Kathy Jones is dismissed. ;

Introduction
1 On 10 February 1999 the President of the Anti-Discrimination Board (ADB) referred two complaints of race discrimination to the Tribunal under s 94(1) of the Anti-Discrimination Act 1977 (the AD Act). The applicants are Ms Kathy Jones and her husband Mr Alan Jones. Ms Jones, who is an Aborigine, claims that the Burraga Sports and Recreation Club Ltd (the Club) discriminated against her on the ground of her race by removing her from the Club on 20 January 1996. Mr Jones, who is not an Aborigine, claims that the Club discriminated against him on the ground of his wife’s race, by removing him from the Club on the same night.

2 The applicants alleged that the Club had breached s 20A of the AD Act (discrimination by a registered club) and s 19(a) of the AD Act (discrimination in the provision of goods and services).

Alleged breach of s 20A: registered clubs
3 The applicants relied on s 20A of the AD Act in claiming race discrimination by a registered club. The relevant provisions are as follows:

(2) It is unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of race:
(a) by denying the person access, or limiting the person's access, to any benefit provided by the registered club,
(b) by depriving the person of membership or varying the terms of the person's membership, or
(c) by subjecting the person to any other detriment.
4 The club is a registered under the Registered Clubs Act 1976, but there was some disagreement about whether Mr and Ms Jones were members of the Club on 20 January 1996. Unless they were members on that date, there could not have been a breach of s 20A(2)(a) or (c) of the AD Act as alleged by the applicants.

5 The Registered Clubs Act 1976 defines "member" in relation to a club, to mean:

a person who is a full member, a provisional member, an honorary member or a temporary member of that club.
6 The parties agreed that Mr and Ms Jones were not financial members of the Club on 20 January 1996. Their annual membership expired on 31 December 1995 and they had not renewed their membership. According to the Club’s Board of Directors, Renewal notices are sent out in December and members are given one months’ grace to pay membership. No rules of the Club relevant to membership were tendered. The respondent submitted that Mr and Ms Jones could rely on s 20A because the relevant provisions of the Registered Clubs Act 1976 could be read to infer that they were members.

7 Even though the respondents were willing to concede that Mr and Ms Jones were members of the Club they were not financial members at the relevant time. We are not satisfied that they were members of the Club within the meaning of the Registered Clubs Act or the AD Act on 20 January 1996. This means that there has been no breach of s 20A(2) of the AD Act.

Alleged breach of s 19: the provision of goods and services
8 The applicants also alleged a breach of s 19(a) of the AD Act. That section states that:

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which the other person is provided with those goods or services.
9 The applicants defined the service which they had been refused as “access to the club and access to food and drink available at the Club.

10 The definition of race discrimination appears in s 7 of the AD Act. The applicants relied on what is known as “direct” race discrimination. So far as it is relevant to this case, s 7 states that:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:
(a) 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 of a different race or who has such a relative or associate of a different race, or
. . .
(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.
11 The respondent relied on certain provisions of the Registered Clubs Act 1976, in particular s 67A which relates to the removal of persons from registered clubs, as justifying the removal of Mr and Ms Jones from the Club. That section states that:
(1) The secretary or an employee of a registered club may refuse to admit to the registered club and may turn out, or cause to be turned out, of the premises of the club any person:
(a) who is then intoxicated, violent, quarrelsome or disorderly, or
(b) who, for the purposes of prostitution, engages or uses any part of the premises, or
(c) whose presence on the premises renders the club or the secretary of the club liable to a penalty under this Act, or
(d) who hawks, peddles or sells any goods on the premises, or
(e) who uses, or has in his or her possession, while on the premises any substance that the secretary or employee suspects of being a prohibited plant or a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or
(f) whom the club, under the conditions of its certificate of registration, or a term (of the kind referred to in section 76A (1)) of a local liquor accord, is authorised or required to refuse access to the club.
(2) If, pursuant to subsection (1), a person has been refused admission to, or has been turned out of, the premises of a registered club, the secretary of the club or an employee of the club may, at any subsequent time or from time to time, refuse to admit that person into the premises of the club or may turn the person out, or cause the person to be turned out, of the premises.
(3) For the purposes of subsection (1) or (2), such reasonable force as may be necessary may be used to turn a person out of the premises of a registered club.
(4) If a person to whom a secretary or an employee of a registered club is, under subsection (1) or (2), entitled to refuse admission to the premises of the club is on the premises the person must, on being required to do so by the secretary of the club, an employee of the club or a police officer, quit the premises.
Maximum penalty: 50 penalty units.
(5) If a police officer is requested by the secretary of a registered club or an employee of the club to turn out, or assist in turning out, of the premises of the club a person whom the secretary or employee is entitled under subsection (1) or (2) to turn out of the premises, it is the duty of the police officer to comply with the request and the police officer may, for that purpose, enter the premises and use such reasonable degree of force as may be necessary.
(6) In this section: employee includes a person engaged under a contract for services.
Issues
12 The applicants did not submit that the Club had no legal power to remove patrons under the provisions of the Registered Clubs Act . It was agreed that Mr Jones was removed from the Club. The issues for determination in Mr Jones’ complaint are as follows:
• did the Club treat him less favourably than, in the same circumstances or in circumstances which are not materially different, the Club treats or would treat a person who did not have a relative who was an Aborigine and, if so:
• was the less favourable treatment “on the ground of” Ms Jones’ race?
13 The issues for determination in Ms Jones’ complaint are:
• did the Club remove her from the premises and, if so:
• did the Club treat her less favourably than, in the same circumstances or in circumstances which are not materially different, the Club treats or would treat a person who was not an Aborigine and, if so:
• was the less favourable treatment “on the ground of” her race?
Evidence

14 Mr Jones and Ms Jones went to live in Burraga in December 1994. They joined the Club in September 1995. The Club is run on a voluntary basis and all profits are used for the benefit of the community.

15 It is common ground that Mr and Ms Jones were drinking at the Club on the evening of 20 January 1996 with Mr Jones’ son Peter, and Peter’s partner, Renee Eves. A woman named Amanda Wriggles, who was a friend of Renee, was at the Club with them. There were about 40 people at the Club including about 15 Maori pruners who had come to the Club for their hangi function. A hangi is a traditional Maori feast. The Maori patrons had given money to the Club to shout free drinks for other patrons. Mr Jones says that he paid for his own drinks.

16 The oral evidence in the applicants’ case was given by Mr and Ms Jones. Peter Jones and his wife, Renee Eves, were also at the Club on 20 January 1996. The statements of Peter Jones and Renee Eves were admitted into evidence through the President’s report. Those statements supported the applicants’ case.

17 At the conclusion of the hearing, Mr Moses for the Club, submitted that the statements of Peter Jones and Renee Eves should be excluded on the basis that the respondent did not have an opportunity to test their evidence. Mr Moses’ relied on the Appeal Panel’s decision in United Bonded Fabrics Pty Ltd v Roseman [2000] NSW ADTAP 13 quoting Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 at 4. The relevant passage relating to Tribunals, such as the ADT, which are not bound by the rules of evidence, is as follows:

It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.
18 By the admission of the President’s Report, the Tribunal made a decision at the outset of the case to admit the relevant statements. Given the fact that the witnesses did not appear at the Tribunal to give oral evidence and have that evidence tested, we give those statements little weight. Generally, a party should be given an opportunity to test prejudicial evidence through cross examination. The non-attendance of Peter Jones and Renee Eves meant that the respondent was denied that opportunity.

19 Mr Moses, for the respondent, asked the Tribunal to apply the rule in Jones v Dunkel [1958-1959] 101 CLR 298 in relation to the failure of Peter Jones and Renee Eves to give oral evidence. So far as is relevant to the present circumstances, that rule is that the unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party’s case. It cannot be inferred that the evidence would have been unfavourable to the party’s case. (Branki v Mingot (1976) 12 ALR 551 at 559-560.) While the failure to call Peter Jones and Renee Eves was unexplained, their statements have been admitted. Those statements support the applicants’ case. In those circumstances the rule in Jones v Dunkel does not apply.

20 Incident on 19 January 1996. Mr Klower is, and was at the time, honorary secretary and manager of the Club. He said that on 19 January 1996, the night before Mr Jones was removed from the Club, Mr Jones was drinking at the Club bar. According to Mr Klower he appeared to be under the influence of alcohol. Mr Klower heard him say, on a number of occasions, words to the effect of “Those bastards stole beer from my car a couple of weeks ago.” Mr Klower also heard him say words to the effect of “I am going to come to the Club tomorrow to drink their beer and eat their food. I will get them back.” Mr Klower also overheard an argument between Mr Jones and another patron of the Club, Mr Garry McGrath. They were abusing one another and Mr Klower said “If you don’t stop arguing you’re going to have to leave.” Mr Klower said that they stopped arguing at that stage but that when Mr McGrath left, Mr Klower said to Mr Jones, “Alan, I heard what you said about the hangi tomorrow. We don’t want any trouble.”

21 Rodney Shiels, a member of the Club for 10 years, gave evidence that on 19 January 1996, Mr Jones said to him, “I’m going up to the Club to eat all their food and drink all their beer to pay them back for last week.” Cheryl Booth, a member of the Club for over 10 years, gave evidence that on 19 January 1996 Mr Jones said to her “We’re going (to the hangi) they pinched all our grog and we’re going to go and drink all theirs.”

22 Mr Jones said that he had mentioned to Mr Klower that he had lost some property, but there was no bad feeling between him and the Maori pruners. He denies saying “Those bastards stole my beer from the car” or “I’m going to come to the Club and drink their beer.” He agreed that Mr Klower did tell him that if he didn’t stop arguing he would have to leave and that he didn’t want any trouble the following evening. Mr Jones said that he said to Mr Klower “There’s no reason to worry.”

23 Ms Jones said that Mr Jones was upset about the beer being stolen and that he suspected that one of the Maoris had stolen it.

24 Findings in relation to 19 January 1996 incident. On the basis of this evidence we are satisfied that Mr Jones said to three people (Mr Klower, Mr Shields, and Ms Booth) that he suspected the Maoris of stealing beer from his car and that he was going to drink their beer and eat their food the following night. Although Mr Jones denies that he said words to that effect, we prefer the evidence of three people all of whom heard him say similar words on the same night. We also find that Mr Klower was concerned that in view of Mr Jones’ attitude, there may be trouble at the Club the following night.

25 Events on the night of 20 January 1996. Mr and Ms Jones’ version of events is that they were sitting at a table in the Club with Mr Jones, his son Peter, his son’s girlfriend Renee, and Renee’s friend Amanda. At one stage during the evening the Jones’ were joined at their table by two New Zealand patrons, one of whom was Jamie Rangikawata. According to Mr and Ms Jones, these people were becoming very annoying and causing some anger in their group. Mr Jones denied arguing with Jamie Rangikawata. He said he asked Jamie to “stop the vulgarity and leave the table.” Mr Klower came over and said “Stop the language.” Mr Jones said he thanked Mr Klower for speaking to Jamie. Ms Jones corroborated that evidence. Mr Jones said that he doesn’t swear. Ms Jones agreed that Mr Jones doesn’t like bad language being used but he does swear sometimes.

26 Shortly afterwards, Renee and Amanda went to play pool at the pool table. Mr Jones heard an “incident” at the pool table involving Renee and Jamie. Peter Jones got up from the table to defend his girlfriend. Mr Jones said he started to stand up and said “I’ll fix this.” He says he was going to ask the Manager to intervene at the pool table.

27 Mr Jones’ version of events was not entirely consistent with the complaint he wrote to the Anti-Discrimination Board on 14 June 1996. In that complaint he said that he got up from his seat, said “What’s going on?” and started to walk towards the pool table.

28 Ms Jones gave similar evidence except that she said that when Peter got up to stop the harassment of his girlfriend, Mr Jones then got up and said “What’s going on?” and walked towards the pool table. Ms Jones repeated this version in her oral evidence, although on cross examination she said he was “looking towards” not “heading towards” the pool table. On cross-examination Mr Jones denied that he was walking towards the pool table.

29 After Mr Jones got up, Mr and Ms Jones both say that they saw Mr Klower walk over to Mr Jones and say “You can leave and take your black bitch with you.” Mr Jones said he was dumbfounded. He said to Mr Klower “Yes, I’ll go.” He then heard Ms Jones say something like, “That’s racial discrimination.” Ms Jones said that she then turned to Mr Klower and said “That’s racial discrimination. I could charge you.” Mr Klower said, “I don’t care what you do, just get out.” Mr Klower then said, “You do what you like, just get out.” Ms Jones then said, “It’s illegal.”

30 Both Mr and Ms Jones denied that Peter picked up a chair and threatened Mr Klower. Mr Jones says he saw his son Peter being ushered out the door by Rod Shiels. Mr Klower then moved Mr Jones towards the door and said “I didn’t want your kind here anyway.”

31 Mr Jones left after Peter had been ushered out. Ms Jones says that she left with Mr Jones and that Peter and Renee left as well. Mr Jones said Mr Klower came outside with him. He says he also saw Mr Klower tip their drinks into the gutter outside. Ms Jones said that Mr Klower came out after her and tipped their beer down the drain.

32 Mr Jones got into his car and drove home. Mr Jones denied that he said “I’ll burn this Club down” when he was outside the Club. Mr Jones also denied that he was drunk when the incident occurred. He said he had 4 or 5 drinks during the afternoon. Ms Jones said that Mr Jones had had “a fair bit” to drink and that he was tipsy. She agreed that she was “a bit tipsy.” She also said that Mr Klower had had quite a bit to drink.

33 Ms Jones said she left Burraga about four or five months later and has never been back to the Club.

34 Mr Klower’s evidence was that on the night of 20 January 1996, he was present at the Club all evening but he was not drinking alcohol. He was expecting trouble. At one stage during the evening he heard swearing coming from the table where Mr and Ms Jones were sitting. One or two Maoris were sitting at the table with them. He went over to the table and said “Stop the language.” After going back to the bar, he heard an argument and swearing coming from the same table. He went back over and said “Look, I have told you that I do not want any trouble. This is a family club. Cut the language.” He said that it was mainly Kathy and Alan Jones who were swearing. Mr Klower denies that Mr Jones thanked him for intervening.

35 Mr Klower says that an argument broke out between Renee and Jamie Rangikawata at the pool table, but he was not all that concerned about it. Mr Klower said he heard Mr Jones say “I’ll fix this” and jump up from his chair. Mr Jones started moving towards the pool table shouting out to the Maoris. Mr Jones got half way to the pool table when Mr Klower says he took him by the arm and said “Come on Alan, you’re going home. I don’t want any trouble.” Mr Jones refused to go and said “No fucking way.” Mr Klower then walked across to Peter and said “Take your dad home. I don’t want any trouble.” Mr Klower says that Peter jumped to his feet and picked up a chair and said “Put us out. Go on, try it.” Mr Klower then said “Just put the chair down Peter.” Eventually Peter put the chair down and two people ushered Peter out of the door without a struggle.

36 Mr Klower says that he then walked around to where Mr Jones was sitting and guided him to the door without a struggle. While this was happening, Kathy Jones was saying words such as “You bastards. You can’t put us out because we’re Aborigines.” Mr Klower said “I’m not doing that but if you don’t like it, you can go too.” Mr Klower said that he gave her the option of leaving.

37 As Mr Jones was being ushered from the club, he yelled the words “I will burn this bloody Club down.” Mr Klower says that he was concerned that there would be a confrontation between Mr Jones and Jamie and he wanted to ensure that the other patrons were safe. He said that Mr Jones was the aggressor and he thought that as long as he removed him there would be no more trouble. Mr Jones had already had two warnings earlier in the night involving the same person. In Mr Klower’s view the Maoris did not do anything wrong.

38 Mr Klower denied saying “you can leave and take your black bitch with you.” He also denied tipping their drinks in the gutter outside. He says he put the drinks on the bar when he came back inside.

39 Mr Klower has asked two people to leave the Club on previous occasions.

40 Alexandra Lamburn has been a member of the Club since 1996 and is currently a Director. She came into the Club about 15 minutes before Mr Jones was asked to leave. She sat with Mr and Ms Jones for five minutes or so when she arrived. During that time they did not use any foul language. However after she got up from the table she heard the Jones’ using very coarse language which included the repeated use of the word “fuck”. Ms Lamburn was close to the bar when she heard two Maori men say something to Renee. Mr Jones stood up and went to pool table.

41 Ms Lamburn saw Mr Jones walk to the middle of the room and then saw Mr Klower approach Mr Jones and say “Calm down. If you don’t calm down then you’d better leave.” Ms Lamburn then saw Mr Klower walk back to the table where Peter Jones was sitting. She saw Peter Jones pick up a chair. After he put the chair down, Ms Jones said “You can’t do this we’re black Australians. I’ll sue the club for this.” She then saw Mr Jones being escorted to the door by Bill Klower. Ms Lamburn did not hear Mr Klower tell Mr Jones to take his black bitch with him.

42 Ms Lamburn recalls one other man who was asked to leave the Club for using coarse language.

43 Mr Shiels gave evidence that he was sitting at the bar on 20 January 1996 and heard Bill Klower speak to Mr Jones about his behaviour. He heard Mr Klower say something like “settle down or I’ll put you out.” He had heard a lot of swearing coming from the Jones’ table prior to this warning being given. Mr Shiels says that later in the evening he heard Mr Klower say to Peter Jones “You’d better take your father home before there’s too much trouble.” He saw Peter Jones pick up a chair. He saw Mr Klower escort Alan Jones to the door and stay inside. Mr Shiels went out to the car park and heard Mr Jones say “I am going to come back and burn the bloody place down.” At no time did Mr Shiels see Mr Klower tip beer in the gutter outside the Club.

44 Cheryl Booth, who has been a member of the Club for 10 years, gave evidence that she was sitting at the bar during the incident about 3 or 4 meters from the Jones’ table. The Jones’ were consistently using highly inappropriate language with most of this language being directed at some Maori patrons who were seated at the same table. She heard Alan Jones say to one of the New Zealanders, “I haven’t’ finished with you bastards yet. You cunts drank all our beer and we’re going to drink all yours.” Later, she heard him say, “If that’s the way you feel, you can fuck off away from our table.” Alan swung his arm at the time indicating that the New Zealanders should leave his table. He knocked over a bottle of beer in the process. The New Zealand patron then got up and bought another bottle of beer and put it in front of Mr Jones. Mr Jones said “I told you to fuck off.” Later she saw Mr Klower escorting Mr Jones to the door with Kathy Jones following saying “I’m going to sue the Club and everyone in it.” Mr Klower said “That’s up to you but if you don’t like it then you can go too.”

45 Ms Marilyn Clayton has been a member of the Club for 10 years. She was working in the kitchen on the night of 20 January 1996. She says she heard swearing coming from the table where Mr and Ms Jones were sitting. According to Ms Clayton all the people sitting at the Jones’ table were repeatedly using words such as “fuck” and “cunt”. She heard Mr Klower go up to the table and say “This is a family club. Foul language won’t be tolerated.” Later Ms Clayton heard a heated argument near the pool table between two Maoris and Renee and her friend. She saw Mr Jones get up from the table and walk towards the pool table. She saw Mr Klower go up to Mr Jones and then return to where Peter Jones was sitting. She heard Mr Klower say to Peter Jones, “Take your father home before there’s any trouble.” Ms Clayton saw Peter Jones pick up a chair and eventually put it down again after Mr Klower had asked him to do so. Ms Clayton saw Mr Klower escort Mr Jones to the door and heard Ms Jones say something like “You can’t do this, I’m Aboriginal. You’re only doing this because we’re black. This is discrimination. I’ll sue you for this.” Mr Klower then said, “You can do what you like, Alan’s going.” Ms Clayton heard Mr Jones say “I’m going to burn the bloody Club down.” Ms Clayton did not hear Mr Klower say words to the effect of “take your black bitch with you.” Mr Klower has warned a number of people and removed one patron, Doug Nicholson, who was intoxicated.

46 Leon Booth is presently serving his third term as President of the Club although he was not the President in January 1996. Mr Booth says he heard Alan Jones saying to the Maoris at his table “You fuckin’ bastards” and “you black cuts from New Zealand.” He saw Mr Klower approach the table but did not hear what was said. Following the incident at the pool table, Mr Jones stood up and walked towards the pool table when Mr Klower approached him. Mr Klower then walked back to where Peter Jones was sitting at the Jones’ table. Mr Booth saw Mr Jones being escorted to the door by Mr Klower. Mr Booth went to hold Jamie Rangikawata back because he thought he would follow the Jones’ out the door and cause more trouble. Mr Booth had not heard Jamie raise his voice but told him to calm down. He said he thought Jamie would have raced outside if he and another man weren’t holding him. Jamie said “Let me go.” Eventually Jamie broke free and Mr Booth followed him out the door. Mr Booth heard Mr Jones say “I’ll burn this bloody Club down.”

47 Iritana Timu gave evidence that she has been a member of the Club since 1996 and is of Maori descent. She recalls two previous occasions when people have been escorted from the Club for using foul language. She once asked Vince Klower (Bill Klower’s cousin) to leave for swearing. On another occasion two Kiwi groups were asked to leave for bad language and drunkenness. Ms Timu’s husband escorted them off the premises.

48 Findings in relation to events on the night of 20 January 1996. Evidence was given by seven witnesses on behalf of the respondent which contradicted several key parts of Mr and Ms Jones’ evidence. That evidence was, on the whole, consistent. While some of these patrons had been drinking, we find that Mr Klower had not been drinking.

49 Ms Jones gave honest and credible evidence about most of the events of 20 January 1996. She was straightforward and consistent in her responses to questions. She also gave some evidence that was against her interests, such as that Mr Jones had had “a fair bit” to drink and that he sometimes swore.

50 Mr Jones gave answers which were in some respects inconsistent with his initial statement and with the evidence of Ms Jones and the other patrons. We find that most of the time he was trying to recall events to the best of his ability, but he was affected by alcohol and was also reluctant to give any evidence which was against his interests. We prefer the evidence of Ms Jones and the other patrons where it is inconsistent with Mr Jones’ evidence. There are some specific instances where the evidence of Mr and Mrs Jones is directly inconsistent with that of the Club patrons. We deal with these conflicts below.

51 On the basis of the evidence before us, we find that Mr and Ms Jones were sitting with their family and friends, having a drink at the Club. Mr Jones felt antagonistic towards certain Maori patrons because of his suspicion that they had stolen beer from his car. He intended to come to the Club that night and drink their beer. When two of those patrons, including Jamie, sat at the table with him they started arguing. We accept Ms Booth’s evidence that Mr Jones swore at them and said “I haven’t finished with you bastards yet. You cunts drank all our beer and we’re going to drink all yours.” Mr Jones swung his harm indicating that the Maoris should leave the table and knocked over a bottle of beer in the process. The Maori patrons were also swearing and arguing with Mr and Ms Jones.

52 Mr Klower came over to the table on two occasions and told everyone to stop the arguing and bad language. He was expecting trouble from Mr Jones because of his comments the previous evening.

53 Renee and Amanda went to play pool and the Maori men started harassing them and speaking in a raised voice. After a short time, Peter Jones got up from the table and went towards the pool table. Mr Jones then got up from the table and walked towards the pool table shouting at the Maoris. Mr Klower walked over to Mr Jones and said something to him. Mr and Ms Jones’ version is that he said, “You can leave and take your black bitch with you.” None of the other witnesses heard Mr Klower say those words. Mr Klower’s version is that he said “Come on Alan you’re going home. I don’t want any trouble.” Ms Lamburn and Mr Shiels say they heard Mr Klower say words to the effect of “Calm down. If you don’t calm down then you’d better leave.”

54 We find that Mr Klower did not say to Mr Jones “You can leave and take your black bitch with you.” Both Ms Lamburn and Mr Shiels heard the conversation and gave a version similar to that of Mr Klower. During the course of the evening, there was no evidence from any of the witnesses that Mr Klower was swearing or that there was any antagonism towards Mr or Ms Jones. He had told them twice to stop swearing and had warned Mr Jones the night before that he didn’t want any trouble. We accept his evidence that he was not drinking that night. For him to swear at Mr Jones and insult him would have been inconsistent with his language and demeanour during the rest of the evening and on the previous evening.

55 Mr Klower then walked across to Peter and said “Take your Dad home. I don’t want any trouble.” Peter picked up a chair and threatened Mr Klower with it. After threatening Mr Klower with words to the effect of “put us out, go on, try it” Peter put the chair down and was ushered out without a struggle.

56 Mr Klower then moved Mr Peter Jones towards the door and allegedly said “I don’t want your kind here anyway.” While Ms Jones did not mention this comment in her oral evidence, it appears in her complaint to the ADB. We find that Mr Klower did not say words to that effect to Peter Jones. Mr Klower denied making such a comment and none of the other witnesses gave evidence of hearing such a comment. We find that such comments would have been inconsistent with Mr Klower’s language and demeanour throughout the rest of the evening.

57 After Mr Klower asked Mr Jones to leave, Ms Jones said words to the effect of “That’s racial discrimination. I could charge you.” Ms Jones had interpreted the removal of her husband as racial discrimination because she is an Aborigine. While Mr Klower did not specifically ask Ms Jones to leave, he made it clear that she could leave if she wanted to. Even so, because Mr and Ms Jones were together that evening, we are satisfied that the effect of asking Mr Jones to leave was that Ms Jones had no real option but to leave as well. It does not make any difference whether or not she was permanently barred from the Club. The act of removal comes within the meaning of refusing to provide the person with services in s 19(a) of the AD Act. Consequently we find that Mr Klower, as agent for the Club, did remove her from the premises. (See s 53 AD Act)

58 Mr Booth then went to hold Jamie back because he thought he would follow Mr Jones out the door and cause more trouble. He and another man restrained Jamie for some time, but he eventually broke free.

59 Mr Klower’s motivation in removing Mr Jones from the Club was that he was concerned that there would be a confrontation between Mr Jones and Jamie and he wanted to make sure the other patrons were safe. Ms Jones’ race was not a reason for removing either Mr or Ms Jones from the Club’s premises.

60 Mr and Ms Jones' contact with the Club since 20 January 1996. Mr Klower and Mr Jones said that some weeks after the incident, Mr Jones came back to collect his photocopier which he had lent to the Club. Mr Jones spoke to Mr Klower. At that stage Mr Klower said Mr Jones owed $70.10 on his bar tab. Mr Jones denied that he owed Mr Klower any money, but he paid it anyway. When Mr Jones came back about a fortnight later and paid the tab, Mr Klower said he gave him the photocopier.

Applicants' submissions
61 The applicant’s submission was that the only concrete evidence that race was a motivating factor in removing Mr or Ms Jones from the Club were the alleged comments “I just want you to leave and take your black bitch with you’ and “We don’t want your kind around here anyway.”

62 Although Mr Klower had some apprehension that there might be some trouble that evening, all that had occurred prior to removing Mr and Ms Jones, was the use of foul language at the table. Until the problem at the pool table developed, there was no sign of any confrontation. Mr Jones reacted to the discussion at the pool table and stood up. He was intercepted before he had done anything. Mr Klower made a snap decision to remove Mr Jones because he feared a confrontation. The motivation in removing Mr Jones was not to ensure order at the Club. In the applicants' submission, it was unlikely that there was a serious concern that there would be a fight.

Respondent’s submissions
63 The respondent submitted that the removal of Mr Jones (and Ms Jones if she was removed) was done under the Registered Clubs Act and not because of Ms Jones’ race. Any person behaving in that way would have been asked to leave.

64 The respondent expressed regret that Mr and Ms Jones feel that they were treated badly. The removal was not directed towards them in anger or discrimination.

65 The remainder of the respondent’s submissions were made on the basis of a finding that the “black bitch” and other comments were made. Since we have found that these comments were not made, we will not set out those submissions.

Reasons and decision
66 The applicants accepted that if the “black bitch” comment and the comment that “I didn’t want your kind around here anyway” were not made then there was no evidence of racial discrimination. We agree. Mr Klower removed Mr and Ms Jones because he was concerned that a fight would start between Mr Jones and Jamie. That was a reasonable assumption. Mr Jones had told Mr Klower the night before that he suspected the Maoris of stealing his beer and he was going to drink their beer and eat their food the following night. On the evening of 20th January Mr and Ms Jones had been arguing with Jamie and another Maori man. They had been swearing at one another to the extent that Mr Klower intervened on two occasions. Mr Jones knocked over a bottle of beer when asking them to leave the table. There were raised voices at the pool table and Peter Jones got up to investigate. When Mr Jones got up and started moving towards the pool table yelling out at the Maoris, it was entirely appropriate for Mr Klower to intervene and ask Mr Jones to leave. His quick action probably avoided an altercation. Two other patrons had to restrain Jamie from going after Mr Jones.

67 The onus is on the applicants to prove, firstly, that their removal from the Club constituted less favourable treatment than, in the same circumstances or in circumstances which are not materially different, the Club treated or would have treated a person who was not an Aborigine (or who does not have a relative who was an Aborigine). There is no evidence from which an inference can be drawn that a non Aborigine (or a person who had a relative who was not an Aborigine) would have been treated any differently than the applicants were treated. Although it is not necessary to do so, we also find that any less favourable treatment was not on the ground of Ms Jones’ race.

Orders
68 The complaint of race discrimination made by Mr Alan Jones is dismissed. The complaint of race discrimination made by Ms Kathy Jones is dismissed