Kelly v Pensalfini
[2019] TASSC 2
•8 February 2019
[2019] TASSC 2
COURT: SUPREME COURT OF TASMANIA
CITATION: Kelly v Pensalfini [2019] TASSC 2
PARTIES: KELLY, John Leo
v
PENSALFINI, Sara
FILE NO: 177/2017
JUDGMENT
APPEALED FROM: Pensalfini v Newdegate Nominees t/as The State Cinema & Kelly [2016] TASADT 16
DELIVERED ON: 8 February 2019
DELIVERED AT: Hobart
HEARING DATES: 29 November 2018
JUDGMENT OF: Porter AJ
CATCHWORDS:
Human Rights – Discrimination – Direct discrimination – Grounds of discrimination – Other matters – Industrial activity – Industrial activity includes membership of an industrial organisation – Respondent requested discounted movie ticket on the basis of membership of a particular union – Refusal of any service – Factual dispute – Finding of discrimination – Appeal – Tribunal did not err in accepting respondent's version of events in preference to that of appellant – No error in finding of discrimination on the ground of industrial activity.
Anti Discrimination Act 1998 (Tas), ss 14(2) and 16(l).
Aust Dig Human Rights [26]
REPRESENTATION:
Counsel:
Appellant: In person
Respondent: In person
Solicitors:
Appellant: N/A
Respondent: N/A
Judgment Number: [2019] TASSC 2
Number of paragraphs: 77
Serial No 2/3029
File No 177/2017
JOHN LEO KELLY v SARA PENSALFINI
REASONS FOR JUDGMENT PORTER AJ
8 February 2019
Introduction
Under the provisions of the Licensing Act 1990, the appellant is the licensee of the State Cinema premises in North Hobart. He was, and is, involved in the day to day management of the Cinema which is operated by Newdegate Nominees Pty Ltd. On 20 December 2016, the Anti-Discrimination Tribunal constituted by members K Cuthbertson and R Winter (the Tribunal) found that the appellant had breached s 16(2) of the Anti Discrimination Act 1998 (the Act) by refusing to sell to the respondent a movie ticket. The relevant events took place on 3 May 2013.
The ground on which it was held the appellant discriminated against the respondent was the attribute of "industrial activity" as specified in s 16(1) of the Act. The Tribunal found that the respondent was a member of the Media Entertainment & Arts Alliance (the MEAA). (The Tribunal dismissed a complaint that a further ground of discrimination was the respondent's status of a sole parent.) The Tribunal ordered that the appellant pay to the respondent the sum of $1,000 by way of compensation within 30 days. The Tribunal also had before it a complaint against Newdegate Nominees made on the basis that the appellant was a member, officer, employee or agent of the company within the meaning of s 104 of the Act. That complaint was dismissed on the basis that the evidence fell short of establishing any such relationship.
On 25 January 2017 the appellant filed an appeal against the Tribunal's decision, pursuant to s 100 of the Act. Section 100(1) provides that a person may appeal against an order of the Tribunal within 28 days of it being made. Accordingly, the appellant's appeal was some eight days "out of time". He has applied for an extension of the time within which he may appeal. In an affidavit in support of the application, the appellant says that the decision was served by post sent to a rented post office box. He says that he did not actually get the decision until 30 December 2016. That fact is not in dispute. The appellant does not explain his state of mind as to the time allowed to him for an appeal, but it is reasonable to infer that he felt the 28 days ran from when he received notice of the decision. On those bases there is a satisfactory explanation for the delay. The respondent is not prejudiced by the delay. In the circumstances, I heard both the application and the appeal at the same time; the only issue in the application is whether the appeal has any merit.
Provisions of the Act
Section 14(2) of the Act provides that direct discrimination takes place if a person treats another on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute, less favourably than a person without that attribute or characteristic. Section 16 provides that a person must not discriminate against another person on the ground of any of a number of attributes specified in the section. Subsection (l) is the attribute of "industrial activity". In s 3 of the Act "industrial activity" includes:
"(a)being or not being a member of, or proposing or refusing to join, an industrial organisation."
Relevantly, "industrial organisation" means an organisation of employees or a trade union, or any other organisation established for the purpose of persons who carry on a particular industry, trade, profession or employment.
Background
To provide an overview, it is convenient to adopt the background set out by the Tribunal at [7]-[8] of its reasons, modified to the extent of referring to the appellant and the respondent as they are in these proceedings:
· On 3 May 2013, the respondent attended the State Cinema in North Hobart with the intention of purchasing a ticket and attending a movie being screened that day. Security footage from the cinema shows the respondent in the cinema foyer shortly before midday.
· The appellant, who is also the owner/manager of the State Cinema, was serving at the counter at the time.
· In the course of attempting to purchase her ticket, the respondent produced an MEAA card and asked whether she was entitled to a concession as a member of the organisation.
· The respondent later produced a Centrelink pension card and sought to purchase a concession ticket on that basis.
· The appellant refused to sell the respondent a ticket. The reasons for this are the subject of dispute.
· The respondent left the Cinema, returned a second time and again attempted to purchase a ticket. The appellant again refused her service. The respondent left, attended a third time and was again refused service.
· The respondent entered the Cinema again sometime after 1.10pm. A friend of hers had purchased a ticket and provided it to her. She sat in the theatre and started watching the film. The appellant later entered, requested that the respondent leave and told her police would be called if she did not do so.
· The respondent did not leave at the appellant's request so he contacted police. Police arrived and accompanied the appellant into the theatre. The appellant asked the respondent to leave in the presence of the police officers. The respondent told the appellant that she had a ticket and was going to stay and watch the film. The police then requested that the respondent leave and she left in the company of police.
· On 7 May 2013 the respondent received an email from the Cinema indicating that she was not permitted to enter the premises. That denial of access to did not specify a period, and the ban remains in place.
· In respect of the allegations of direct discrimination, the appellant says that he did not refuse service to the respondent on the basis of her production of the MEAA or Centrelink pension cards. He says the refusal of service was as a consequence of the respondent's behaviour which was said to be in breach of the cinema's Code of Conduct and provisions of the Licensing Act.
· Similarly, the appellant also says that the respondent was banned from attending the cinema due to her behaviour.
The parties represented themselves before the Tribunal, with the appellant appearing for the company. The respondent gave evidence and called evidence from a Ms Cindy Aulby, a person known to the respondent who was present during what seems to have been the third attempt to buy a ticket. The respondent also called evidence from Constable Seymour, one of the police officers who attended. The appellant gave evidence and called evidence from staff members, Ms Beatrice Rueckert and Ms Janet Dale, and also from the other police officer who attended; Constable Eaves. Ms Dale is the only witness called said to have witnessed the initial exchange. The appellant tendered CCTV footage from the cinema's foyer. The footage runs for nearly five minutes and shows that initial exchange. The Tribunal had to resolve a major factual dispute about what happened, particularly during the critical initial phase before the respondent left for the first time.
A short summary of what the respondent said happened, taken from the Tribunal's reasons, is as follows. When she went to the State Cinema on 3 May 2013, she noticed that Mr Kelly was serving at the counter so took the opportunity to ask if concessions were available to members of the MEAA. She asked him whether he offered MEAA concessions yet. Mr Kelly's response took her by surprise. He immediately responded in what she thought was a very aggressive manner. He spoke loudly and quickly. His manner was forceful. She described his behaviour as defensive. He used words such as "your type", "your organisation" and "your people", and referred to having been hassled for over seven years by people about this issue. He said words to the effect of being sick of "your type and your people" [sic].
The respondent took back her MEAA card and then offered her Centrelink Parenting Payments Single pension card in order to obtain a concession. She told Mr Kelly that she did not know what he was talking about, asked that he stop talking to her about the issue and to sell her a concession ticket based on her pension card. The appellant refused and said words to the effect of "you'll listen to me". The respondent described him as continuing with a "barrage" with his story and opinions about the MEAA. She requested that he stop the attack, told him that she did not have to listen to him and asked him to just sell her a ticket. She sought assistance from another staff member standing nearby, but the appellant told that staff member not to serve the respondent, that she was not welcome and would not be served that day. The respondent was shocked, sat down in the foyer, collected her thoughts and then left the building.
After about 5 or 10 minutes, she decided to make a further attempt to purchase a ticket. The appellant told her several times that she would not be served. She approached the appellant in a calm manner and kept asking for a ticket. She was in the foyer for about 10 to 15 minutes on this occasion. As she was walking away she said, "I don't understand why you are being such a fuckwit." The appellant then spoke loudly in front of a number of people, saying that she was disrupting customers and insulting him, and that she should leave.
The respondent returned a third time and attempted to behave in a conciliatory fashion. She said that all of this was very silly, they should sweep it under the carpet, and she would not mention it again if he would let her buy a ticket to see the movie. The appellant again refused her service. It was at this point that Ms Aulby was standing in the line behind her. The respondent left and sat in her car. At 12.29pm the respondent posted a comment on Facebook about the incident. At 12.45pm she made a further post requesting someone buy her a ticket. Someone agreed, purchased a ticket for the 1.30pm session, and the respondent entered the theatre a few minutes before the movie was due to be shown. Shortly after, the appellant entered and told her he was giving her a chance to leave but if she did not, the police would be contacted. She ignored him and continued to watch the movie. The police arrived shortly after.
The appellant's evidence was that the respondent approached him at the counter, produced her MEAA card and asked for an admission price discount. He told her that the Cinema did not accept the card. He said she immediately attacked him, saying that he was discriminatory. He explained that the Cinema supported many unions and other organisations, but there was a process that needed to be followed to become eligible for discounted tickets. The respondent continued to accuse him of being discriminatory. He asked her to stop using an aggressive and loud voice, which he said was getting louder. He explained it was necessary for the organisation to approach the State Cinema for a discount.
The respondent's aggressive behaviour, loud voice and accusations of him being discriminatory continued, so he told her that there was a code of conduct to which patrons must adhere. He said that if she did not comply, he could refuse her service and ask her to leave the premises. She continued with her behaviour so he said, "That's it, I'm formally telling you that I'm not serving you and that you are to leave. If you don't leave I'll be forced to call the police." Before giving a final warning, the respondent called him a fuckwit. She then produced a second card to obtain discounted entry. As he had already told her that she would not be served, he asked her to leave. He then walked away from the box office area. He came back a short time later, and was again approached by the respondent. He went through what he had previously explained and walked away. She spent more time in the box office area requesting service from other staff before leaving. He said that his employee, Janet Dale, was present throughout all of the interaction.
Some time later the respondent returned, left and came back again, but he could not recall what then happened; he "tried to avoid the situation as the matter had been dealt with and it was finalised." He did not recall having any further conversation with her during either the second or third visit, but if he had spoken with her it would have been to repeat what he had said earlier. At about 1.00pm he was told that the respondent was in one of the theatres watching a movie. He then took action.
The Tribunal's determination
In its reasons, the Tribunal made a detailed examination of the evidence. That evidence was then analysed and findings of fact made. At [78], the Tribunal said it was clear that the appellant refused the respondent service at a point in time after she had requested she be sold a concession ticket on the basis of her membership of the MEAA, but that there was no evidence that the appellant expressly told the respondent that she was being refused service on the basis of her MEAA status. The Tribunal then identified "the critical focus" in respect of this aspect was the parties' behaviour, "particularly the point at which the complainant referred to the respondent as a 'fuckwit', and whether that occurred before or after he had refused her service".
Noting that the "complainant" is the respondent in these proceedings, and that I have omitted the word "second" before references to the respondent (the appellant), the Tribunal continued:
"[79] As is evident from the above summary of the evidence, the complainant and respondent's version of the events that occurred within the first few minutes of their interaction is entirely at odds. The Tribunal has considered their evidence carefully in light of the CCTV footage and Ms Dale's evidence. The Tribunal is mindful of the fact that a finding that the respondent has breached the Act is one that may impact on his reputation and that of his business and as a result must be comfortably satisfied that the complainant's version ought to be accepted before making a finding adverse to him.
[80] The Tribunal is satisfied that the complainant's version of events leading up to the refusal of service is correct. The Tribunal has had the benefit of seeing the witnesses during the course of the inquiry. All other witnesses, with the exception of Ms Dale, were not able to give evidence in respect of what occurred in the lead up to the refusal of service. The complainant's version of events leading up to the refusal of service has been consistent and unshaken in cross-examination. Her contemporaneous Facebook posts concerning the initial stages of her interaction with the respondent are also consistent with the evidence she gave.
[81] Critically, the Tribunal is satisfied that the CCTV footage is consistent with the complainant's version of events. It shows the complainant and respondent engage in conversation from about 16 seconds after the commencement of the footage. The respondent begins gesticulating at about 38 seconds. He walks away from her about one minute later. In the intervening period the pair are both talking, though it is the respondent who is most animated. His physical movements and behaviour as evident in the footage are consistent with the evidence of the complainant. The complainant, on the other hand, appears to be listening to the respondent at the beginning of the footage and not gesturing. Her physical movements relate to getting something from her bag. Her demeanour and body language do change, however, after the respondent walks away from her. It is clear that she has already been refused service at this stage as she approaches another staff member who appears willing to serve her but is then prevented from doing so by the respondent. It is during this second phase of discussion between the parties that the complainant starts gesticulating and appears upset. It is at this point that Janet Dale can be seen.
[82] The footage does not show behaviour on the part of the complainant consistent with the respondent's version of what occurred prior to refusing service. There is nothing apparent from the footage to show that the complainant was addressing him in an attacking or aggressive manner, quite the contrary. … [The Tribunal noted that the footage was not consistent with Ms Dale's evidence, and continued.]
[83] … [The Tribunal made further comments about Ms Dale's evidence, concluding that she was mistaken about having observed the initial exchange, and continued.] The Tribunal is satisfied that the complainant referred to the respondent [as a fuckwit] at a point in time after she had been refused service.
[84] The other evidence … to the effect that the complainant had engaged in heightened behaviour must be considered in light of the fact that the complainant had been refused service by this stage. The Tribunal does not accept that the complainant was initially refused service as a consequence of her use of 'profane' language. There is no question that the complainant used the term 'fuckwit' by reference to the respondent, but the Tribunal is satisfied that the complainant referred to him in those terms as a consequence of having been refused service. The respondent's evidence that it was this comment that lead to the refusal is not accepted."
The Tribunal then declared itself satisfied that the refusal of service by the appellant amounted to less favourable treatment for the purposes of s 14(1) of the Act, and the refusal occurred in the context of the appellant's engagement in a relevant activity; namely the provision of facilities, goods and services as specified in s 22(1)(c) of the Act. The Tribunal said it was satisfied that the respondent had the prescribed attributes of industrial activity, namely a membership of MEAA, and directed itself that in order to find the complaint of direct discrimination proved, it was required to find the appellant had refused service on the basis of the prescribed attribute.
The Tribunal went on:
"[87] ... The Tribunal is satisfied that when the complainant requested a discount based on her membership of the MEAA, the respondent engaged in a heightened conversation with her about the organisation and why no discount was offered. When the complainant told him she was not interested in what he had to say but wanted to buy a ticket, he continued to provide his explanation and then refused to sell her a ticket even after she offered an alternative concession card. The inference clearly open in the circumstances is that he was upset with the complainant's request and association with MEAA and that it was this that guided his subsequent behaviour towards her and the refusal of service."
[88] The evidence, however, fell short of establishing that the respondent was aware of the complainant's parental status. ... The refusal of service is better described as a continued refusal based, at least initially, on the complainant's membership of the MEAA which had been brought to the respondent's attention.
...
[90] For these reasons, the Tribunal is satisfied that the respondent engaged in direct discrimination of the complainant on the basis of her membership of the MEAA following her request for a discounted cinema ticket based on that membership. The Tribunal is not, however, satisfied that the less favourable treatment of the complainant was based on her parental status.
...
[95] The Tribunal finds the complaint against the respondent is substantiated in respect of the allegation that the complainant was refused service on the basis of her membership of the MEAA."
The appeal
This is an appeal is by way of rehearing: Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48 at [6]. As such, the appellant needs to persuade the court of identified error: Allesch v Maunz [2000] HCA 40, 203 CLR 172 at [23]; Bahonko v Sterjov[2008] FCAFC 30 at [3]. As amended, the notice of appeal contains nine grounds. There is no ground of appeal that explicitly complains of an error in fact-finding on the part of the Tribunal in being satisfied that the respondent's version of events was correct. However, that point, along with the appellant's general approach, needs to be assessed in light of a part of his written submissions described as "overview", and some of the things he said in oral argument. As will emerge, there are underlying difficulties. During the hearing, the appellant described the "substantive issue [which] goes to the heart of the error made by the Tribunal" as that relating to its determination that he discriminated against the respondent on the ground of industrial activity, "when in fact, that attribute was not a causally operative factor at all".
In the "overview", the appellant essentially submits that the Tribunal erred in finding that "industrial activity" was the basis of the denial of entry, "because [the respondent's] conduct leading to the refusal of service was effectively unrelated to her membership of an industrial organisation". He says the "causally operative factor was not membership of [the MEAA], but was the [MEAA's] failure to seek approval for discounted tickets for its members". He says his conduct did not in practical terms mean the respondent was treated less favourably; rather by his conduct he declined to treat her more favourably than other patrons who, like the respondent, were not entitled to receive corporate discounts. Even if the Tribunal was correct in finding that there had been less favourable treatment, he was justified in his actions because of the "reasonable business practice in determining eligibility for granting corporate discount cinema tickets".
Further, the appellant says that "other findings by the Tribunal arising from subsequent discussions between him and the respondent following the initial advice that she was not entitled to a discounted cinema ticket are irrelevant to the primary issue of whether the defined discriminatory conduct had occurred". In this context, he says that the first refusal of service was on the ground of ineligibility for discounted tickets, while the second refusal of service "was on the basis of the respondent's offensive and unruly behaviour on the premises of his business in front of himself, his staff and other patrons following the initial refusal of service ...".
These arguments were repeated in oral submissions as to the "substantive" issue. In summary, the appellant says:
· There was insufficient basis for a finding of causal connection between the attribute of industrial activity and his conduct.
· The evidence did not support a refusal to sell a discounted ticket because the respondent was a member of the MEAA, but it disclosed the causally operative factor as being that she was a member of a union that had not been approved for member discounts; the central basis of the causally operative factor was that the respondent's eligibility for a discount did not exist.
· The incident was comprised of eight stages, the first two being the respondent's initial request for a discounted ticket, the second being the refusal on the ground of lack of eligibility.
· The third was the "unseemly and offensive response to that refusal by the respondent", with the fourth being her subsequent barring from the premises.
The appellant argues that it was the first two stages that were relevant to the issue of whether discrimination had taken place, and discrimination in relation to stages one and two could not have been made out on a balanced consideration of the evidence: "It may be that the Tribunal became distracted by the evidence relating to stages three to eight ...".
The effect of all of this seems to be that the appellant believes the refusal to sell the respondent a discounted ticket formed at least part of the discriminatory conduct found against him. But that is not correct. It was held that the discriminatory conduct was the refusal of service as such: the Tribunal at [95]. The refusal to sell a discounted ticket formed part of the narrative; it was the subject matter of the "discussion" that led to the refusal of service. But it was not relied on as an aspect of the suggested discrimination, nor as giving rise to it in any relevant way. More particularly, the appellant proceeds on the assumption that his version of events offered to the Tribunal, and not accepted by it, is the version on which the appeal should proceed. Quite obviously, that cannot be so.
However, the assertion that the Tribunal wrongly rejected his version may be implicit in a number of grounds which allege error by giving particular pieces of evidence "undue weight", and also from grounds which allege errors in conclusions drawn from the CCTV footage and Ms Dale's evidence. For those reasons, and for the sake of completeness, I will deal with the question of whether the Tribunal erred in accepting the complainant's version of events as correct, after I address the grounds of appeal individually.
Ground 1A
The Tribunal erred in concluding that the appellant had discriminated against the respondent on the grounds of industrial activity ... and membership of an industrial organisation when there was no evidence ... that the respondent was actually a member of an industrial organisation.
This ground is completely without merit and must fail. The respondent gave direct evidence in response to a question from a Tribunal member that the MEAA used to be known as "Actors' Equity", that it was a workers' union and that she (the respondent) had been a member since she was 6 years old: see transcript pages 50-51. That evidence was not challenged in cross-examination.
In any event, s 14(2) of the Act refers to a prescribed attribute or "imputed prescribed attribute". "Imputed" means "ascribed or attributed": Thomson v Orica Australia Pty Ltd [2002] FCA 939, 116 IR 186 at [168]. The Tribunal correctly noted that the respondent had to establish that the true reason the appellant refused her service was "due to her membership or assumed membership of the MEAA" [16]. And so at the very least, the Tribunal could properly have held discrimination to have occurred on the basis of a finding that the appellant ascribed to the respondent the relevant attribute, or in simpler terms, that he assumed she was a member of the MEAA.
Ground 1
The Tribunal erred in law by concluding that the appellant discriminated against the respondent on the ground of industrial activity ... when the alleged "less favourable treatment" was based not on industrial activity itself, but on the appellant's reasonable and established business practice of only offering discounted cinema tickets to members of organisations that have made formal application for discounts for its members.
This ground is also without merit. It suffers from the difficulties previously mentioned. In its drafting and in the argument in support, the appellant focuses on his act of refusing to sell to the respondent a discounted ticket. He argues that the Tribunal erred "in concluding that membership of an industrial organisation alone is sufficient basis for a finding of discrimination … where there was insufficient nexus between that membership and the alleged proscribed conduct." This is explained in further submissions as follows. The MEAA had "repeatedly" failed to apply for discounts for its members. The respondent's request for a discounted ticket was not an activity of an industrial organisation, and "the possible discretionary bonus of a discounted cinema ticket cannot be said to be a relevant attribute of an industrial organisation".
Significantly, at this point the appellant argues that complete denial of a ticket to an MEAA member at any price "would clearly amount to discrimination" but that is not so in relation to a discretionary discounted ticket; the "entitlement" to a discount as a union member was "a minor discretionary incidental attribute of membership" and one which may or may not be available. Additionally, the appellant says the Cinema was not the respondent's place of employment.
What I said earlier about the difficulties in the appellant's approach, and what I have said about ground 1A is sufficient to dispose of much of what is raised under this ground of appeal. What remains can be dealt with by reference to the definition of "industrial activity". As noted above, the term includes the status of membership of an industrial organisation; it is not confined to "activity" in the ordinary sense. However, the ground does raise the issue of causal connection. For the sake of completeness, I am prepared to deal with it – unaided by submissions – on the basis of an asserted error on the part of the Tribunal in drawing the inference from the facts as found to exist, that the refusal of service was on the ground of the respondent's membership of the MEAA. To the extent that the ground impliedly raises an assertion that the Tribunal ought to have accepted the appellant's version in preference to that of the respondent, I will deal with that under later grounds.
The Tribunal noted that the complainant (respondent) bore the onus of proof, and that although the standard of proof was that of the balance of probabilities, the approach to be followed was that set out in Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 362. That is to say, the seriousness of an allegation made, the inherent unlikelihood of a particular occurrence, the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved. The quality of evidence which will satisfy the standard in a particular case may vary according to the gravity of the issue. At [79] the Tribunal rightly said it was mindful of the fact that a finding that the appellant had breached the Act was one that may impact on his reputation and that of his business, and accordingly the Tribunal needs to be "comfortably satisfied that the complainant's version ought to be accepted".
The finding that the appellant's act of discrimination was based on industrial activity involved the drawing of an inference. The evidence must have induced in the mind of the Tribunal an actual persuasion of the fact. Where circumstantial evidence is relied on, it is not necessary that all reasonable hypotheses consistent with the non-existence of the fact, or inconsistent with its existence, be excluded before the fact can be found; a rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue: Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 at [55].
Although all that is required is that the circumstances raise a more probable inference in favour of whatever is alleged, there is no authority to "choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others": Jones v Dunkel (1959) 101 CLR 298 at 304 per Dixon CJ, ACCC v Metcash Trading Ltd [2011] FCAFC 151, 198 FCR 297 at [31]. A court is entitled to draw an inference from "even slim circumstantial facts that exist so long as that goes beyond speculation": Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268 at [7] per Young CJ in Eq; Condos v Clycut Pty Ltd [2009] NSWCA 200 at [68].
Section 14(2) of the Act refers to "discrimination ... on the basis of any prescribed attribute [etc]". The phrases "on the basis of" and "based on" are synonymous with the phrase "by reason of": Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; Thomson v Orica (above) at [158]-[161]. The phrase "because of" in the same context in s 5 of the Disability Discrimination Act 1992 (NSW) has been held to indicate that it is the reason the discriminator acted that is relevant. The inquiry relates to the "true reason", "real reason" or "true basis" for the less favourable treatment: Waters (above) at 359; Purvis v New South Wales [2003] HCA 62, 217 CLR 92 at [13] per Gleeson CJ, [188]-[189] per McHugh and Kirby JJ, [236] per Gummow, Hayne and Heydon JJ.
This case is not a straightforward one in the sense that it does not involve a refusal of service simply resulting from the appellant's discovery that the respondent was a member of a union, or in particular, a member of the MEAA. The facts are a little more complex. Two points need to be made. The first is that s 14(2) of the Act operates literally. Discrimination has taken place if it is established that a person was treated in a particular less favourable way because of the identified ground of discrimination. There must be a decision or action adverse to a complainant, made on the basis of a proscribed ground. It is a little unsettled, but the law seems to be that it is not necessary for the discriminator to knowingly or actively commit an act of discrimination, as distinct from doing something giving rise to an unconscious or unintended result. Questions of motive and intention may assist in the resolution of the question as to whether something was done on the ground of an attribute, but the question is – why was the aggrieved person treated as he or she was?: Purvis (above) at [236].
Second, s 14(3) of the Act provides that it is not necessary the prescribed attribute be the sole or dominant ground for the unfavourable treatment. This means it may be a reason or factor among others: Purvis (above) at [13]; Jones v Scully [2002] FCA 1080, 120 FCR 243 at [114]. A trivial or insignificant reason is insufficient; it needs to have "truly played a causative part": IW v City of Perth (1997) 191 CLR 1 at 63.
In the present case, it is implicit in the acceptance of the respondent's version of events, that the appellant's refusal to serve her came almost immediately after she asked him to stop his "attack" on her, and said she did not have to listen to him, asking him to "just sell her a ticket". It is possible that the appellant acted solely out of a personal dislike for the respondent which he had developed in the minutes of their exchange, quite unconnected with her membership of the MEAA. It is possible that a personal dislike played a part in his decision. But in my view, the Tribunal was quite entitled to make the findings that it did at [87], [90] and [95] of its reasons.
On the facts as found, it is more likely than not that, given the context of the whole of the discussion to that point, the respondent's membership or assumed membership of the MEAA was an operative factor – and more than a trivial or insubstantial one – in the refusal of service. In that discussion, the appellant showed antipathy to the MEAA and its members over a saga of ongoing requests by members for discounts, and the union's failure to follow the required procedure to obtain the concession.
Ground 2
The Tribunal ... erred in fact or in law by holding that the appellant unlawfully discriminated against the respondent on the grounds of ... industrial activity ... when in fact there was no evidence adduced that established that the respondent was in fact engaging in industrial activity as a member of any trade union on the day on which the alleged discrimination is said to have occurred.
The point of this ground is, in part, a repetition of a point made in the argument as to ground 1. As to this ground, the appellant says:
· The respondent's conduct was not related to any form of commonly known industrial action, such as that relating to wages or conditions of service.
· The activity of seeking a discounted cinema ticket had no connection with the respondent's employment or her membership of an industrial organisation.
· The only connection was that the organisation was in the class that could apply for group purchasing discounts for its members "and which indulgence may or may not be granted by the appellant in the exercise of the discretion".
· There was no entitlement to discounted cinema tickets – the MEAA had failed to make formal application for discounted tickets for its members "despite repeated invitations from the appellant."
The short answer to this ground of appeal is the definition of "industrial activity" which I have set out above. It includes being or not being a member of an industrial organisation. What I said earlier by way of comment in relation to the appeal in general, also responds to this ground. The ground must fail.
Ground 3
The Tribunal erred in law by attaching undue weight to the evidence of the respondent relating to posts on her Facebook page alleging discrimination when such posts were self-serving and unreliable statements, and not probative of the occurrence of unlawful discriminatory conduct.
In spite of the wording of the ground, the appellant limited his argument to the point that, as the Facebook posts were not an independent record, they should have been given no weight. The appellant did not advance any further argument. By s 87(4) of the Act, the Tribunal is not bound by the rules of evidence but is bound to observe the rules of natural justice, and is able to inform itself on any matter as it thinks fit. The short answer to the appellant's complaint is that the Tribunal was entitled to give the evidence such weight as it sought fit. The posts were made within a few minutes of the events the respondent purported to record. The Tribunal noted that the posts about the initial interaction were contemporaneous, and were consistent with the respondent's evidence. Although not contemporaneous in strict terms, the posts were made within a few minutes of the events.
Having examined them, I would agree they are quite consistent with the respondent's version. The first post at 12.29pm refers to the appellant's "long aggressive rant about 'your type' and 'your organisation' [and a] barrage. '7 years of people hassling me' etc etc." It goes on to document the request made of the appellant to stop attacking her, and the immediate refusal of service. Later, at 12.45, the respondent commented that she was not doing anything wrong: "The only possible thing he has is that I muttered 'I don't know why you are acting like such a fuckwit' as I left the second time."
I would observe that in relation to disciplinary proceedings at least, it has been said – no doubt because of the possible ultimate consequences – that a tribunal would be wise, where ordinary questions of fact are concerned, to hesitate before departing too drastically from the rules of evidence: In re Medical Act 1959 [1973] Tas SR 43 at 67. If the rules of evidence were applied, the Facebook posts would have been admissible as previous representations by way of an exception to the hearsay rule under s 64 of the Evidence Act 2001. On that basis, the representations in the posts were capable of being treated as evidence of the truth of the representations, and as evidence relevant to the respondent's credibility. The extent to which the evidence was so taken would have been a matter for the Tribunal.
The Tribunal was entitled to have regard to the Facebook posts in assessing the credibility and reliability of the respondent's evidence. No doubt it bore in mind the nature of, and inherent difficulties with, this type of hearsay evidence. In its specific terms, the ground must fail.
Ground 4
The Tribunal erred in law by attaching undue weight to the evidence of the respondent alleging an aggressive attitude on the part of the appellant in support of alleged discriminatory conduct when an inference to be reasonably drawn from the evidence was that the respondent herself was acting aggressively during the relevant incident.
The appellant did not address this ground in his written submissions, nor was it referred to in the hearing. I can deal with it relatively briefly. At the outset I note that a complaint of error in giving something undue weight carries with it the vice that, without reference to the ultimate outcome, it involves something immeasurable. It is akin to a ground of appeal against sentence that undue weight was given to a particular fact or consideration. The only way the sufficiency of weight can be measured is by considering the inadequacy or excessiveness of the sentence: TAP v Tasmania [2014] TASCCA 5 at [30]; JWM v Tasmania [2017] TASCCA 22 at [68].
The difficulty I have is that there are many references in the transcript to aggression and aggressive behaviour, but they are all to do with the suggestion by the appellant that the respondent was acting aggressively. In the respondent's closing submissions to the Tribunal, she spoke of what could be made of the CCTV footage. She said she could not see any aggressive body language on her part, but submitted that "there was slightly more animated body language" from the appellant. The evidence of the respondent might give rise to an inference that the appellant was acting aggressively, but that was not one that the Tribunal specifically drew. It did not make any reference to aggression, or aggressive attitudes or behaviour on the part of the appellant. In reality, the ground perhaps goes to the question of whether the respondent's version should have been preferred over that of the appellant. For the reasons given, in its specific terms, the ground must fail.
Ground 5
The Tribunal erred in law by attaching undue weight to certain CCTV footage taken in the foyer of the cinema at the time of the relevant incident, and drew unwarranted adverse inferences from that footage concerning the conduct of the appellant as compared with the respondent.
The appellant did not deal with this ground in his written submissions. In oral argument, it became clear that it has two distinct aspects. First, the appellant submitted that undue weight was given to the CCTV footage because it did not show all of the entrance foyer. This argument is related to ground 6 which, as explained by the appellant, is a complaint that the Tribunal did not allow him to explain that fact. I will deal with that ground in due course. As to the present ground, the appellant asserted that the CCTV footage did not show all of the patrons who were in the box office at the time, nor "did it show Ms Janet Dale who was a key witness ... and [the Tribunal] made judgments further upon that to state she was unreliable". In turn, this point relates to ground 8 which, in essence, alleges error in the findings made about the weight to be given to Ms Dale's evidence. Here again, I will deal with that in due course.
The area shown in the footage is that of the box office area. The camera is facing generally north. The counter is on the right of the vision, and faces Elizabeth Street on the left. That counter consists of a refreshment service area closest to the camera, with the ticket section beyond. That is where the events took place. Almost directly opposite the ticket area and on the left of the footage, there is an entrance door. Beyond that, there are two sitting areas in the top left corner, the view of parts of which is obscured. There seems to be one to the main door side of a stairway, and one on the other side. They contain lounge chairs or couches. Moving back towards the camera from the doorway, on the left there are two tables each with six seats, and then another entrance door. This is to the very bottom left of the view. It is common ground that the camera is mounted more or less above the doorway into an adjacent bookshop, generally to the south of the box office area. Ms Dale's evidence was that at the time of the initial exchange she was polishing tables along the wall with the bookstore. These must be below and to the right of the camera, but not shown in the footage.
The Tribunal described the footage in the following terms:
"[32] The footage is 4 minutes and 45 seconds long. It commences at a point where the complainant is already in the foyer waiting at the counter. The respondent approaches to serve her. There is another female standing in the foyer and the complainant appears to be offering to let her be served first. The complainant places her handbag on the counter, removes something from her bag and there appears to be some discussion between the parties. The respondent commences gesturing and appears quite animated in conversation with the complainant. The complainant remains still, scratches her nose and fiddles with her hair briefly. The respondent continues to talk. The complainant responds and then appears to remove something else from her bag. The respondent continues talking and gesticulating. The respondent walks away from her and the complainant looks confused and approaches the other staff member. The respondent quickly approaches, gesticulating at the complainant. The complainant at this point begins gesticulating herself and briefly points at the respondent. At this stage (approximately 2 minutes and 20 seconds into the footage), another person can be seen passing the counter area and moving towards the entry to the bookstore. The evidence is that this is Janet Dale who is a member of the cinema's staff. Ms Dale can be briefly seen towards the beginning of the footage behind the counter at the furthest point away from the complainant and the respondent. The complainant and respondent continue to have a discussion with the respondent gesturing and the complainant appearing to get upset. It appears that she is trying to get the other staff member to assist her but the staff member is again spoken to by the respondent.
[33] Throughout this period a person can be seen sitting on a couch some metres away from the counter. The complainant sits down at one of the tables and appears to be looking at her phone. Close to 4 minutes into the footage, an older lady enters the cinema and sits down at a table near the bookstore. No other people can be seen sitting at tables in the foyer area. There is no interaction between the complainant and the respondent at this time. The complainant then picks up her bag and leaves the cinema and can be seen walking south down Elizabeth Street."
Subject to noting that the appellant first walks away from the respondent at the one minute 40 second mark, and that at the two minute 20 second mark Ms Dale is moving from right to left at the bottom of the footage, and so at a right angle to the counter, I agree with the Tribunal's description. One aspect needs explanation. When the appellant "walks away from" the respondent, he in fact goes out of sight at the bottom right of the view. The respondent then approaches the nearby staff member, clearly asking for help in getting a ticket. The appellant then re-appears about eight seconds after he disappears, and interrupts, gesticulating. It is this event which the appellant described in his evidence as "walking away and coming back a short time later." Dealing with the first aspect of the ground as drafted, I repeat what I said in relation to ground 4 about complaints of "undue weight" being given to certain aspects of the evidence. The Tribunal was entitled to give such weight to what may be seen on the CCTV footage as it saw fit.
As to the second aspect of the ground, the "adverse inferences" seem to be the conclusions drawn from the footage concerning the physical movements and behaviour of the respective parties; in particular, the finding that those of the respondent were consistent with her evidence and not consistent with the appellant's version. Having viewed it several times, I am not satisfied that the Tribunal erred in its assessment of the footage or the conclusions it drew from the CCTV footage.
Ground 6
The Tribunal erred in law by denying the appellant procedural fairness in relation to giving evidence about certain CCTV footage taken in the foyer of the cinema (paragraph 31 of the decision).
Paragraph [31] is part of a section of the Tribunal's reasons that deals with the CCTV footage. It reads:
"[31] The second respondent sought to make comments in respect of the events depicted in the footage, but it was pointed out to him that it was for the Tribunal to assess the footage and make any factual findings accordingly."
The actual exchange the subject of the complaint, as shown in the transcript, comes after discussion about the electronic format, and is as follows:
"MR KELLY: It does come in an mpeg–4 format, which is like standard these days, but as the court's requested to put it in the DVD, which is what has happened. It clearly shows the cinema.
MS CUTHBERTSON: Okay, well it's a matter for us, we'll –
MR KELLY: Sure
MS CUTHBERTSON: The footage will speak for itself.
MR KELLY: Of course."
That exchange needs to be put in context. Beforehand, and at the very commencement of his evidence, the appellant said he had security video "to prove that Janet Dale was present at the first instant to witness that [sic] event". After the exchange, the appellant went on to explain that the DVD contains the footage of the initial five minutes of the entire incident. He said there was other footage which was not downloaded by the day manager, as it was not considered relevant. He said they kept the first five minutes of the initial incident, that being considered more than adequate for the event, and the balance of the footage would have been overwritten within three weeks. At the start of the footage being played, the appellant noted to the Tribunal that it showed him initially serving the respondent. He asked whether the Tribunal wanted him to provide commentary during the course of the playing. He was told that it could just be watched for the moment, but at some point the appellant started explaining some of the things that could be seen.
Some of the things he explained include:
· The point in the footage where Ms Dale was seen going to the bookstore entrance – "so that's the proof I wish to provide of Ms Dale being in attendance at the initial interaction".
· That there were "people sitting in the corner – you can just see their hand – and the far corner as well."
· That there were "very few people in the box office at the time apart from patrons sitting down at the two locations mentioned."
· That half way through the footage, an elderly lady is shown coming into the foyer and sitting at the bookstore side of the table close to the camera's location at the bottom left corner.
· That there was a large area "obscured" where Ms Dale was standing for the encounter; she comes into view at about two minutes and 20 seconds into the footage but she moves left and goes slightly out of camera.
Both parties made closing submissions to the Tribunal. In his submissions, the appellant referred to the CCTV footage, saying his production of that video evidence "clearly showed Ms Dale's presence". There followed an exchange between Ms Cuthbertson and him about what the footage showed in this respect and what might be made of it.
In my view it necessarily follows that the appellant was given ample opportunity to explain what he thought the footage showed and what it did not show, and what inferences might be drawn. It is correct that at the very first point at which he introduced the footage, he was told it was a matter for the Tribunal what it showed, but it was a statement with which he readily agreed, and in any event, he availed himself of two opportunities to explain what he saw to be the footage's significance. He was given the opportunity to be heard, and was heard. The ground has no merit.
Ground 7
The Tribunal erred in law by concluding from the CCTV footage evidence that there were no independent witnesses to the incident in the foyer in the cinema, when in fact CCTV footage covered only part of the foyer.
This ground was not addressed in the written submissions, nor in oral argument. Nowhere in the Tribunal's reasons is there any stated conclusion "that there were no independent witnesses to the incident in the foyer". The appellant may be referring to the issue of the existence of what Ms Dale described as "six elderly patrons nearby". I will later deal with Ms Dale's evidence in greater detail, but as to this matter, the effect of her evidence is that this group was sitting nearby when the respondent called the appellant a fuckwit. On the versions of both the appellant and Ms Dale, that was said in the first part of the whole incident – agreed to have been caught by the CCTV footage – and before the respondent produced her Centrelink card. The Tribunal referred to this factual issue of the group nearby, in assessing the weight to be given to Ms Dale's evidence.
If I am correct about the subject matter of this ground, it might be inferred from the terms of the ground, that the appellant is asserting that this group was in an area of the foyer not covered by the CCTV footage. As to that, that was not the appellant's evidence before the Tribunal. As noted above, the appellant pointed to some patrons shown in the footage, but did not specifically assert there were other patrons not shown. In fact, he suggested there were "very few people" apart from the ones he indicated. Ms Dale used the word "nearby" several times when referring to the presence of the group, but did not provide any greater particularity than that. She did not say they were in particular area in which she was working. Most likely, but is not clear, she meant nearby to where the appellant and the respondent were standing.
For those reasons, the ground has no merit. I will deal with Ms Dale's evidence and the broader issue of the Tribunal's preference for the respondent's version, when dealing with the next and last ground.
Ground 8
The Tribunal erred in law by concluding that the witness, Jan Dale, gave "an exaggerated account" of events such as estimating the number of witnesses present in the foyer of the cinema at the time ..., or "was confused" as to the timing of relevant events.
The appellant tendered a written statement from Ms Dale dated 5 May 2015, and called her to give evidence. In her statement, Ms Dale says that on 3 May 2013 she was working in the vicinity of the box office and heard a woman demanding a discount on the purchase of a cinema ticket. This woman became defiant and angry when her demand was rejected, raising her voice and refusing to accept Mr Kelly's decision. "At the time, approximately 6 elderly patrons were seated at a nearby table and a number of other patrons and staff members were moving through the box office. I clearly heard Ms Pensalfini called Mr Kelly a 'fuckwit' from a distance of 5 metres." Ms Dale goes on to say that Ms Pensalfini was asked to leave but she refused to do so, and paced the box office for quite some time, harassing staff members, pleading and unsuccessfully demanding for them to sell her a ticket. Ms Dale says that during the exchange Mr Kelly did not raise his voice or become verbally aggressive, but Ms Pensalfini appeared agitated, aggressive and angry "and seemed intent on creating an unpleasant scene."
In short, Ms Dale's evidence was as follows. At the time of the incident described in her statement, she was standing near the wall with the bookshop on the right hand side of the counter as viewed from the customers' perspective. In terms of the footage, that puts her in the bottom right hand corner, but out of sight, at least initially. She was polishing tables. Her attention was drawn because she could hear a loud and quite aggressive female voice. The respondent was angry about being denied a discount on the basis of a union card. The appellant was trying to explain that the Cinema did not accept that particular union's card. The respondent became quite angry, objecting that it was discriminatory and unfair. The appellant warned her that her behaviour was inappropriate and that if she persisted, she might have to be asked to leave. At that point she remained angry and agitated.
Ms Dale said she clearly recalls the respondent calling the appellant a fuckwit. At this point Ms Dale was some five metres away. After being called a fuckwit, the appellant told the respondent that her behaviour was inappropriate, and asked her to leave the premises. After that, the respondent attempted to purchase a ticket with another card, whereupon the appellant reminded the respondent that he had asked her to go, and repeated his request for her to do so. He then walked away. The respondent went to another staff member seeking a ticket. The appellant "re-emerged", directed the member not to sell her a ticket, explaining that he had asked her to leave. The respondent did not leave at that point, but stayed for a little while longer and then walked out. The appellant was speaking loudly, as he normally does, but was not shouting or acting aggressively. Ms Dale later said that behind the counter throughout all of this, there was a female employee named Laura, that she is from the Netherlands, and had returned. (The footage shows that it was Laura to whom the respondent turned for assistance after being refused service.)
Shortly after, the respondent came back inside, and tried again to buy a ticket. At that point Ms Dale was cleaning in the bookshop near the Cinema doorway. The respondent attempted to buy a ticket from other staff and was "agitated, she was pacing up and down, talking loudly, quite aggressively, definitely causing a disturbance and creating a scene". There were elderly customers seated at a table nearby and they could overhear the respondent harassing staff and trying to get them to serve her. The appellant was not there at this time and had no dealings with the respondent. The respondent returned for a third time, again in a highly agitated state, and again paced up and down the box office, basically repeating her behaviour of the second visit.
The Tribunal dealt with Ms Dale's evidence as follows:
"[64] Although Ms Dale's evidence was unshaken under cross-examination, her statement made at the time clearly conflicts with what can be ascertained from the footage. In her statement she said as follows:
'I was working ... in the vicinity of the box office on the 3rd of May 2013 and heard a woman, later identified as Ms Sara Pensalfini demanding a discount on the purchase of a cinema ticket from ... Mr John Kelly. She became defiant and angry when her demand was rejected, raising her voice and refusing to accept Mr Kelly's decision. At the time, approximately 6 elderly patrons were seated at a nearby table and a number of other patrons and staff members were moving through the box office. I clearly heard Ms Pensalfini call Mr Kelly a "fuckwit" from the distance of 5 metres. Mr Kelly asked Ms Pensalfini to leave the cinema but she refused to leave and paced the box office for quite some time, harassing staff members, pleading and demanding unsuccessfully for them to sell her a cinema ticket.' [Emphasis added.]
[65] There are two aspects of her evidence that are in conflict with the security footage. First, it is not at all apparent that there were approximately 6 elderly patrons seated at a nearby table during the initial exchange between the complainant and second respondent. There is one patron visible sitting at a couch, not a table. Secondly, her characterisation of the complainant's behaviour as harassing staff members, pacing the box office for some time is not consistent with the footage, which shows one attempt to purchase a ticket from another staff member. This suggests either an exaggerated account of what occurred, or that Ms Dale in fact was confusing the timing of when the comment was made, and that it was made at a time when more people were present in the box office area on either the second or third occasion when the complainant re-attended the cinema. [My bold emphasis.]
[66] Also of note is that the evidence of the second respondent and Ms Dale conflict in respect of what occurred when the complainant first sought to buy a ticket. The second respondent's evidence was that the MEAA card was produced and a discount requested. Once refused, the second respondent says he was attacked for being discriminatory. Ms Dale on the other hand refers to the complainant 'demanding a discount' from the outset, both in her written statement and oral evidence.
...
[82] ... The footage is not consistent with Ms Dale's evidence suggesting that the complainant was demanding and became defiant and angry shortly after being told she would not receive a discount. As has already been observed, the footage does not show a table of about six elderly patrons being disturbed by the complainant.
[83] Although Ms Dale's evidence was to the effect that she observed or heard the whole of the initial interaction between the complainant and the respondent, the Tribunal is satisfied that she is mistaken about that. Her evidence in her statement and during the inquiry is not consistent with what is apparent on the footage. Ms Dale may well have observed the complainant in a heightened state, but the Tribunal is satisfied this was at a point after she was refused service. Her evidence that the complainant referred to the second respondent as a 'fuckwit' at a time when there were other people moving through the foyer and a table of approximately six elderly patrons nearby is, in fact, consistent with the complainant's account that the comment was uttered at a later point in time."
Of course the ground of appeal relates to the passage I have emphasised. The issue about the six elderly people at a table not being apparent from the footage– dealt with in par [65] of the Tribunal's reasons – is significant. Ms Dale's evidence was that the six elderly patrons were sitting "nearby" but did not give any evidence as to precisely whereabouts. She did not say they were very close to where she was, polishing tables. In his evidence, the appellant pointed out to the Tribunal that the footage showed patrons in corners at the top left of the vision. He described the "corner" and the "far corner". Although a little unclear, the footage appears to show three sided corner areas with the seats opposite one another. The footage shows at least two people, possible three in total, but they are sitting on couches. They cannot reasonably be described as sitting at a table.
The appellant told the Tribunal that the footage showed "very few people in the box office at the time" apart from those patrons. In particular, he did not give any evidence about patrons seated in an area not shown in the footage. Apart from late in the footage when a woman comes in and sits at one of tables with six chairs, no-one is sitting at the visible tables at any more relevant time.
Next, as to the second issue referred to in par [65], it is clear that in Ms Dale's written statement the description of the respondent pacing up and down and harassing other staff relates to the initial exchange, and before the respondent left for the first time. Accordingly her evidence conflicts with the footage. However, in her evidence, Ms Dale made no reference to that conduct on the first occasion; it is equally clear that she confined this conduct to the second and third occasions on which the respondent was in the Cinema attempting to buy a ticket. This impacts adversely on Ms Dale's credibility or reliability. It may suggest that after making her statement, and before giving evidence, Ms Dale saw the footage and, saying the least, it changed her recollection.
Apart from these two aspects of Ms Dale's evidence that the Tribunal said were in conflict with the footage, there is also the issue referred to in par [66], that of the difference in accounts between the appellant and Ms Dale as to what occurred when the respondent first tried to buy a ticket. All of these matters are sufficient to properly found the conclusions reached by the Tribunal about Ms Dale's evidence.
There are additional matters which tend to support the Tribunal's conclusions. First, as noted above, when describing that part of the incident in which the appellant walked away and the respondent sought help from a nearby employee, Ms Dale used the word "re-emerged" when describing the appellant coming back to explain that the respondent was not to be served. As I have also noted, the appellant is out of view for no more than about eight seconds. He could not have walked very far in four seconds, and he obviously was still within view, or at least earshot, of what was going on at the counter. He re-appears in the footage just starting to point at the respondent. With Ms Dale where she said she was, it is a fair inference that she would have been able to see the appellant at all times. Accordingly, the use of the word "re-emerged" is odd. It again suggests that she has watched the footage, and in turn suggests reconstruction in her evidence.
Further, the footage shows that for a short time at the very start of the episode, the staff member, Laura, is preparing what appears to be coffee for a female patron who is standing close by, waiting. Of course, Laura was the employee to whom the respondent first turned for assistance. The customer is there for about one minute and 30 seconds of the footage, before getting her drink and leaving. The point is that the footage shows the respondent apparently producing the second card, said to be the Centrelink card, to the appellant. The appellant and Ms Dale say that it was immediately before this that the appellant was called a fuckwit. At that stage, both Laura and the female customer are very close by. Although both appeared interested in what was going on at an earlier time, in the brief period before the second card is produced, each is looking away, and neither looks towards the appellant and the respondent. It might be thought that if the respondent loudly called the appellant a fuckwit, either or both would have reacted in some way but they did not.
I am not persuaded that the Tribunal erred in concluding that Ms Dale's evidence was unreliable in relation to what happened at the critical time. There are good reasons for the Tribunal taking the view it did. In the main, those reasons arise from a comparison of her evidence with the objective evidence of the footage. Additionally, of course, the Tribunal had the advantage of seeing and hearing her, as well as the appellant and the respondent. As will be seen, that is something to which I should have regard. This ground fails.
The Tribunal's acceptance of the respondent's account
As is apparent from the passages from the Tribunal's reasons set out above, the Tribunal regarded the CCTV footage as "critical" in finding that the respondent's version should be accepted. Additionally, the Tribunal referred to the corroborative effect of the respondent's Facebook posts. At the same time, the Tribunal acknowledged that it had the benefit of seeing the witnesses during the course of the inquiry.
As to what guides an appeal court in disturbing credibility findings and credibility-based findings, I venture to repeat what I said in Marlow v Walsh [2008] TASSC 58, 18 Tas R 153, with which Blow J (as he then was) and Evans J agreed:
"[89] ... The role of an appellate court conducting such an appeal has been most recently explained by the High Court in Fox v Percy (2003) 214 CLR 118 at 125 - 129, Pledge v Roads & Traffic Authority (2004) 78 ALJR 572 at 581 – 582 and CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at 466.
[90] What is to be derived from these authorities is as follows:
·whilst the appellate court is obliged to give a judgment which, in its opinion, ought to have been given in the first instance, at the same time it must observe the natural limitations that exist in the case proceeding wholly or substantially on the record.
·those limitations include the disadvantage the appellate court has, when compared with the trial judge, in respect of the evaluation of witnesses' credibility and the feeling of the case which an appellate court reading the transcript cannot always readily appreciate.
·a real review of the trial is to be conducted, and appellate courts are not excused from the task of weighing conflicting evidence and drawing their own inferences and conclusions, though they should always bear in mind that they have neither seen nor heard the witnesses and should make due allowance in this respect.
·the mere fact however, that the trial judge reached a conclusion favouring the witnesses of one party over those of another does not prevent the performance by an appeal court of its proper functions.
·even in the case of expressed credibility findings, an appeal court may substitute its own conclusion where incontrovertible inferences, facts or uncontested testimony demonstrate the findings to be erroneous, or where they are glaringly improbable and contrary to compelling inferences, or where the trial judge has failed to use, or has palpably misused, the advantage in seeing and hearing the witnesses.
[91] The general proposition that an appellate court is required to make due allowance for the advantage of the trial judge in seeing and hearing the witnesses was thus restated. However, there seems to be some remaining uncertainty as to what allowance may properly be due, where there is an express or implied reliance by the trial judge on the demeanour of a witness. In CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at 456 par[19] – 466 par[23] Kirby J made the following points:
·'in Fox v Percy there was an important change in the statement by this Court of the jurisdiction and powers of intermediate appellate courts.'
·that change 'involved a shift to some degree from the more extreme judicial statements commanding deference to the findings of primary judges said to be based on credibility assessments'.
·it would be a misfortune if 'so soon after Fox v Percy corrected the non-statutory excesses of earlier appellate deference to erroneous fact-finding by primary judges, the old approach was restored, as, for example, by reversion to the previous formulae about the 'subtle influence of demeanour' that could have affected the primary judge's conclusion, even though no express reference was made to such consideration.'
[92] The uncertainty, or as Ipp JA said in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at 189, the lack of clarity as to 'the degree to which the shift in emphasis has occurred' emerges from the joint judgment of Callinan and Heydon JJ in the Della Maddalena case. At 492 par[180], their Honours, whilst acknowledging that there were cases in which the advantages enjoyed by trial judges over appellate courts were exaggerated, recognised that there were cases in which the 'subtle influence of demeanour' could not be overlooked.
...
[95] As noted by Ipp JA in the Goodrich Aerospace case, the effect of their Honours' comments was described by Tobias JA in Walden v Black [2006] NSWCA 170 at par[83], as being that 'reliance upon the "subtle influence of demeanour" requires careful consideration in each case before it is permitted to trump appellate intervention'."
In this case, I am in just as good a position as the Tribunal in relation to what can be drawn from the CCTV footage and the impact of that footage on the evidence of relevant witnesses, along with what may be made of the respondent's Facebook posts. I note that a court may more readily reverse findings of fact where the assessment of credit depends on matters such as the logical consistency of the evidence, and comparisons with incontrovertible evidence, rather than the demeanour of the witness. However, I should bear in mind that I have not had the advantage of seeing or hearing the parties and the other witnesses who gave evidence.
As to whether the Tribunal erred in being satisfied that the respondent's version of events was correct, I firstly refer back to the discussion, in relation to ground 8, of Ms Dale's evidence. Additionally, there is an area of conflict between the appellant's evidence, and the CCTV footage and that of Ms Dale, which should not be overlooked. Oddly enough given the footage, the appellant said that after he asked the respondent to leave, he walked away, returned a short time later, "and was again approached" by the respondent. However, that is not what the footage shows. As noted by the Tribunal in its description of the footage, after the appellant walks away, the respondent turns to another staff member, (Laura), for assistance, at which point the appellant quickly approaches and intervenes. As is apparent from my earlier remarks, Ms Dale's evidence was consistent with the footage.
Generally, I refer to what I have said in relation to grounds 3, 4, 5, 7 and 8. Looking at the whole of the evidence, I am not satisfied that the Tribunal erred in preferring the respondent's version. I am not persuaded that the Tribunal's findings of fact should be set aside.
Outcome
Because I have reached the view that the appeal is without merit, the application to extend time is refused. To the extent that the appeal may have validity, it is dismissed.
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