Malinda v Australia LEISURE and Hospitality Group Pty Ltd

[2015] FCCA 1339

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALINDA v AUSTRALIA LEISURE & HOSPITALITY GROUP PTY LTD & ANOR [2015] FCCA 1339

Catchwords:
HUMAN RIGHTS – Racial discrimination – whether conduct constituted racial discrimination.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  

Australian Human Rights Commission Act 1986, s.49B

Casino Control Act 1997 (SA)
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, s.476
Racial Discrimination Act 1975

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: DAVID MALINDA

First Respondent: AUSTRALIA LEISURE & HOSPITALITY GROUP PTY LTD

Second Respondent: JANINE HAESE

File Number: ADG 120 of 2015

Judgment of: Judge Street

Hearing date: 18 May 2015

Date of Last Submission: 18 May 2015

Delivered at: Adelaide

Delivered on: 18 May 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondent:

Mr B. Andary

DMAW Lawyers Pty Ltd

ORDERS

1. The proceedings be summarily dismissed.

2. There be no order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ADELAIDE

ADG 120 of 2015

DAVID MALINDA

Applicant

And

AUSTRALIA LEISURE & HOSPITALITY GROUP PTY LTD

First Respondent

JANINE HAESE

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.49B of the Australian Human Rights Commission Act 1986.  The applicant has filed an application in relation to which he has alleged racial discrimination in respect of conduct that is identified as follows:

   The following are the facts of what happened at around 9.40am on 21st September 2014 at Gepps Cross Hotel.

   ·   I went to Gepps Cross open market to buy some vegetables for my wife as I do every Sunday.

   ·   At around 9.40 am, on my way home, I decided to pop in the hotel. My intention was very clear, to play poky machine with a $20 I had.

   ·   I cashed the $20 from a machine in the poky room. I was playing when I noticed nothing was happening, then collected my remaining $15.

   ·   I took it to the cashier. I put the money in the bowl and then, the woman whose name is Jenine Haese, I believe, did not want to give me my $15, and said and I quote "I need prove of identity"

   ·   I asked her 'What for do you need my ID I am not underage?" She said and I quote "I have the right to demand it" and she repeated this 6 times as I kept on asking her why she wants my ID for as I had a right to know.

   ·   Not only I was shocked, but I was trembling with anger. Customers were looking at me as if I have committed a crime.

   ·   I asked her to call the police immediately. As she did not, I called the police myself on 131444 using my mobile phone.

   ·   I spoke to the police woman who informed me that it was not a police matter, and therefore I can take whatever action I see fit.

   ·   The police woman asked me to speak to the staff member. I handed my mobile phone to this woman (Jenine Haese who I came to confirm that was her name from Mr David Curry, Head of Regulatory and Corporate Affairs ALH Group. I said to her to remember that she is using my credits.

   ·   She tried to move and talk to the police officer so that I can't hears, but I managed to hear her say that “.. he is a heavy gambler ..”.Something which is new to me, as I don't go to that hotel as I used to go 10 years ago. Does she know me?

   ·   The following are the facts about me:

   I have been going to Gepps Cross Hotel for the last 32 years

   ·   It is the hotel we used to take the family for family functions including birthdays.

   ·   Since the hotel was burned, we rarely go there.

   ·   The damage the hotel has done is irreparable. The reasons are as follows:

   ·   I am an Australian citizen

   ·   I have lived here for the last 35 year

   ·   I have never been subjected to such demeaning act without any reason.

   ·   I am a government employee.

   ·   I am a community leader for South Australia, and a retired prominent scientist.

   ·   I hold a few prominent portfolios in public in Australia.

   My intentions:

   ·   Lay defamation charges for the unprecedented pain I suffered on the day, which made me break down when telling my wife what I encountered.

   ·   Request the Commissioner for Racial Discrimination to initiate an investigation.

   ·   Involve the media until the issues addressed properly.

   ·   Get a report of the conversation between Jenine Haese and the police person she was talking to.

2. The conduct on pg.5 to pg.6 fails to identify any reasonably arguable case of racial discrimination in contravention of the Racial Discrimination Act 1975.  As a responsible gaming person being a sensitive position employee of licensed premises under the Casino Control Act 1997 (SA) asking someone for their identity on licensed premises does not manifest conduct that constitutes a breach of the Racial Discrimination Act 1975. There is no suggestion that the staff member did not have the appropriate identification and the licensee through its staff is under a duty to ensure responsible gambling. The sensitive position employee did not have a duty to provide reasons for the demand and there is no basis to infer any conduct in contravention of the Racial Discrimination Act. The belief admitted in the statement to the police that the sensitive employee was concerned that the applicant may be a problem gambler does not convey any basis for an allegation of contravention of the Racial Discrimination Act 1975. It is clear that the sensitive position employee was seeking to act within the scope of her duty in the demand for identification.

3. Mr Malinda said that he took offence at the request and the consequential circumstances in which he was treated.  The taking of offence by Mr Malinda does not establish that there is an arguable case of contravention of the Act. I take into account that the principal relief sought in the case was an apology and that the respondent whilst maintaining that there was no contravention did make in open court an unreserved apology to the applicant for the events that occurred and for any hurt or distress that he suffered.

4. I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I am clearly satisfied that these proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 May 2015