LD v Voltime Pty Ltd (trading as Cronulla Hotel)

[2000] NSWADT 95

CITATION:	LD -v- Voltime Pty Ltd (trading as Cronulla Hotel) [2000] NSWADT 95 revised - 19/11/2003
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT LD RESPONDENT Voltime Pty Ltd (trading as Cronulla Hotel)
FILE NUMBER:	991037
HEARING DATES:	29/06/2000
SUBMISSIONS CLOSED:	06/29/2000
DATE OF DECISION:	06/29/2000
BEFORE:	Ireland G - Judicial Member; Strickland J - Member; Cox R - Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Application under s111(1)
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT A Moses, barrister
ORDERS:	1. Application under s111(1) of Anti-Discrimination Act 1977 is dismissed.; 2. No order as to costs.

1 The Tribunal has considered its decision. This is an application made by the respondent under s 111(1) of the Anti-Discrimination Act 1997 (the Act) seeking an order from the Tribunal that the complaint referred for inquiry to this Tribunal by the Anti Discrimination Board, be dismissed as it is misconceived, lacks substance, and is vexatious and frivolous.

2 The application is brought at a stage in the reference of the matter to this Tribunal where the Tribunal has not formally embarked on the inquiry and has before it only the material in the report by the President of Anti Discrimination Board which contains various material relating to the investigation of the complaint by the Anti Discrimination Board. The report of the President is before the Tribunal following its tender by the respondent with the consent of the Complainant.

3 The Tribunal notes that the Complainant, Mr LD, is unrepresented and he is a person without legal background. The Respondent is represented by Mr Moses of Counsel.

4 In considering the application the Tribunal has taken some time with the Complainant in endeavouring to determine the nature of the complaint and the basis of the complaint in terms of its application to the Act.

5 The Tribunal has jurisdiction to inquire into such complaint as has been referred to it by the Anti Discrimination Board. In this inquiry and after the pursuit with the Complainant of the complaint as formulated by the Complainant and the Anti Discrimination Board, the Tribunal has determined that the complaint is a complaint of direct discrimination under s 49ZG of the Act, that is a complaint of direct discrimination based on the presumed homosexuality of the Complainant, and that it is alleged that the discrimination, if established, is unlawful under s 49ZP of the Act, which relates to unlawful discrimination in the delivery of goods and services.

6 The Complainant has sought also to formulate his complaint in terms of s 24(1)(a) of the Act, that is as a claim of sexual discrimination and to relate that claim to alleged statements made concerning his presumed homosexuality by barmaids and other patrons of the North Cronulla Hotel.

7 The Tribunal has not been able to determine that a complaint of sexual discrimination has been considered by the Anti Discrimination Board and in particular that such a complaint has been the subject of the reference by that Board to this Tribunal.

8 It is the view of the Tribunal that the complaint that has been the subject of reference to it by the Anti Discrimination Board is confined to the claim of direct discrimination arising under s 49ZG of the Act.

9 When the history of the consideration of that complaint by the Anti Discrimination Board is examined, it appears from the President's report that the Complainant withdrew that complaint by letter to the Anti Discrimination Board in November 1997 and it is of some moment to read the relevant parts of that letter. The receipt of the letter by the Anti Discrimination Board is dated 13 November 1996 and reads:

'I am withdrawing the matter about North Cronulla Hotel ref', '96/9255. Would you please send a letter to Mr Terry Bryant, North Cronulla Hotel.'

10 The Board wrote to Mr Bryant, the licencee of the hotel, on 14 November 1996 advising him of the withdrawal of the complaint.

11 By a letter received by the Anti Discrimination Board on 22 April 1997, the Complainant sought to reinstate the complaint. In that letter he stated to the Anti Discrimination Board:

'You told me that you had asked Terry Bryant whether sexuality was a issue. He said no. At Sutherland Court 18/4/97 it was revealed that Terry Bryant barred me because a bar girl had told me that I said I am gay, I take it up the arse, I have been pack raped. I deny this and believe that it is all lies made up by trouble makers.'

12 As a result of the receipt of that letter the Anti Discrimination Board reinstated the complaint and ultimately by letter dated 12 April 1999 referred the matter to this Tribunal for its inquiry.

13 In his submission to this Tribunal in this application, the Complainant has sought to specify that the complaint of direct discrimination under s 49ZG of the Act arises out of an incident occurring at the Cronulla North hotel on 23 February 1996. On that occasion, as a result of incidents at the hotel involving the complainant, he was barred from the hotel by the licencee Mr Bryant and this action was subsequently confirmed on 15 March 1996, when it was made clear to the complainant that he was barred permanently from the hotel.

14 The incidents on 23 February 1996 involved another person who the Complainant states is not homosexual and who, although involved in the same incident as the Complainant, did not suffer the consequence of being barred, and certainly not being barred permanently from the hotel.

15 The Complainant points to this comparison of the treatment he and the other person received as demonstrating that he has been treated unfairly and that such treatment constitutes discrimination in terms of s 49ZG.

16 It should be observed that in order for such conduct to establish discrimination, the Tribunal in addition would need to be satisfied that the unfair treatment as alleged occurred 'on the ground of' the complainant's presumed homosexuality.

17 In considering that latter issue, it is relevant to have regard to the evidence of Mr Bryant in the transcript of the proceedings in the Sutherland Court on 18 April 1997, being proceedings brought by the police against the Complainant on charges of assault. On that occasion in his evidence Mr Bryant stated that he barred the Complainant from the hotel following complaints to him from some bar patrons and from some bar maids about the conduct of the Complainant, and that that conduct had homosexual connotations.

18 The nature of this application, if granted, requires the tribunal to make a decision of finality which would have the result that the complaint would be dismissed. It therefore requires the Tribunal to be satisfied that the nature of the evidence, to the extent that that evidence is now available or potentially may be available to the Tribunal, has no capacity for the establishment of the complaint as alleged by the Complainant.

19 It is always a difficult process at such an early stage of an inquiry for the Tribunal to come to such a finite conclusion. The nature and the extent of the material available to the Tribunal should, if an application of this nature was to be granted, be emphatic in that there would be no reasonable likelihood that the complainant could establish the allegations which make up the complaint.

20 Indeed, it has been held by the Tribunal in a matter of Figueira v St Vincent Hospital, an unreported decision as far as I am aware delivered on 7 April 1997, that the Tribunal does not have jurisdiction to entertain an application of this nature until the Tribunal has in fact embarked on an inquiry and that the submission of the President's report is not a sufficient base for the commencement of an inquiry and that the Tribunal can not take an application of this nature any further at this stage.

21 This Tribunal would not wish necessarily to take such a strong view of an application made at this point of an inquiry but it would wish to emphasise that there are considerable dangers in acceding to an application when the nature of the evidence before it is incomplete and has allusions to the expansion of that material, which could support the allegations in the complaint.

22 This is such a situation. The Tribunal emphasises that it is not taking any conclusive view of the material, but it is sufficient for its present purposes that the Tribunal considers that the material is capable, if it can be substantiated to the satisfaction of the Tribunal, of establishing the basis for the complaint. The Tribunal would prefer to err on the side of caution and to allow the complainant the opportunity to expand that material, if it is capable of being expanded, in order to substantiate his claim.

23 In coming to this conclusion the Tribunal has had regard to the matters that had been submitted to it by the Respondent in its outline of submissions. But notwithstanding the matters that are referred to in that document, the Tribunal's preferred view is not to accede to the application and to allow the inquiry to proceed, limited as we have stated to consideration of the complaint formulated under s 49ZG of the Act.

24 It will be necessary for the parties to refer to the Registrar in order to establish dates for the continuation of the inquiry and we will leave that to the parties.

25 There will be no order as to costs in relation to this application.

Revised 19/11/03 to anonymise applicant's name