Masters v Reserve Hotels Pty Ltd atf the NBF Trust

[2020] NSWCATAD 115

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Masters v Reserve Hotels Pty Ltd atf the NBF Trust [2020] NSWCATAD 115
Hearing dates:	26 and 27 February 2020
Date of orders:	30 April 2020
Decision date:	30 April 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr R Dubler SC, Senior Member Dr M Murray, General Member
Decision:	(1) The complaint of racial discrimination under s.19 of the Anti-Discrimination Act 1977 (NSW) against the Respondents is substantiated. (2)   The Respondents are jointly and severally ordered to pay the Applicants damages in the amount of $7,500 each. (3) The Applicants are to file within 14 days hereof submissions in respect of any ancillary orders the Tribunal should make under s.108(2) of the Anti-Discrimination Act 1977 (NSW) and in respect of costs. (4)   The Respondents are to file any submissions in response within 14 days of receipt of the Applicants’ submissions. (5)   The Applicants are to file any submissions in reply within 14 days of receipt of the Respondents’ submissions. (6)   Any such submissions are to include submissions as to whether or not the Tribunal should dispense with a hearing on the remaining issues pursuant to s.50(3) of the Civil and Administrative Tribunal Act 2003 (NSW).
Catchwords:	ANTI-DISCRIMINATION – direct discrimination on the grounds of race in contravention of s.19(a) of the Anti-Discrimination Act 1977 (NSW) – refusal to provide access into and hence service at the hotel premises on the basis that the Applicants were not “Asian” – refusal to provide access by security guard – whether the acts of the security guard were as agent for the Respondents, being the security company and the owners of the licensed premises – whether the Respondents have made out the defences under s.53(1) and (2) of the Anti-Discrimination Act 1977 (NSW)
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Chen v Premier Motor Service Pty Ltd t/as Premier Illawarra [2017] NSWCATAD 342 Commercial Union Insurance Company of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 Cook v Scruffy Murphy’s Pty Ltd [2007] NSWADT 129 Dadyal v AVS Australian Venue Security Services Pty Ltd [2008] NSWADT 110 Dell v Dalton (1991) 23 NSWLR 528 Hall v Sheiban (1985) ALR 503 IW v City of Perth (1997) 71 ALJR 943 Jones v Dunkel (1959) 101 CLR 298 Purvis v New South Wales (2003) 217 CLR 92 Shellharbour Golf Course v Wheeler (1999) 46 NSWLR 253; [1999] NSWSC 244 Tupou v Scruffy Murphy’s Pty Ltd [2007] NSWADT 192 University of New South Wales v Moorhouse (1974-75) 133 CLR 1
Texts Cited:	Cross on Evidence, 11th Ed (2017), JD Heydon
Category:	Principal judgment
Parties:	Luke Masters (First Applicant) Wayne Clothier (Second Applicant Reserve Hotels Pty Ltd atf NBF Trust (First Respondent) SSC Security Pty Ltd (Second Respondent)
Representation:	Counsel: M Seymour, (Applicants) J Klarica, (Respondents)   Solicitors: Solon Lawyers (Respondents)
File Number(s):	2018/00373341
Publication restriction:	Nil

REASONS FOR DECISION

Introduction

1. Mr B’s is a hotel at 396 Pitt Street, Sydney. It has a significant Thai clientele and serves modern Thai food. On Saturday night, 2 September 2017, Mr B’s was hosting what it calls “RCA Saturdays” at its dance and live music venue. RCA, or Royal City Avenue, is one of Bangkok’s largest entertainment and clubbing areas. It contains a multitude of bars, nightclubs and live music venues.

2. On that night, Mr Masters and Mr Clothier attempted to enter Mr B’s Hotel. There was a security guard at the entrance. According to Mr Masters, the security guard put his hand up to him and said words to the effect of:

“Sorry boys. I can’t let you in tonight. We’re not mixing crowds. It’s Asian night.”

Mr Masters said:

“That’s not right. You can’t do that. This isn’t right.”

The security guard said:

“Look there’s thousands of bars around, just go find somewhere else.”

3. Mr Clothier and Mr Masters then left the area. Mr Masters looked through the doors and windows into the Hotel from the street. He observed a large crowd of people that he described as being 99% of Asian appearance.

4. The Applicants allege this amounted to a denial of services on the ground of race in contravention of s.19(a) of the Anti-Discrimination Act. The Respondents, the owner of the premises and the security company which supplied the security guards, deny the alleged incident occurred at all, or, alternatively, if it did happen they did not authorise any such acts of the security guard being a defence under s.53 of the Anti-Discrimination Act 1977 (NSW) (the ADA).

The Complaint

5. On 20 September 2017, the Anti-Discrimination Board received a complaint of race discrimination in the provision of goods and services from Mr Masters lodged on behalf of himself and Mr Clothier. The complaint proceeded to a conciliation conference on 8 November 2018 pursuant to s.91A of the ADA. The complaint did not settle at the conference. The matter was then referred to the Civil and Administrative Tribunal.

6. The Applicants filed a Points of Claim as follows:

“On 2 September 2017 the Respondents jointly and severally breached s.19(a) of the Anti-Discrimination Act 1977 in that there was a refusal to provide access into and hence services at the hotel premises known as Mr B’s Hotel on the basis that the Applicants were not “Asian”.”

7. “Services” are broadly defined by s.4 of the ADA. They include services relating to “entertainment, recreation or refreshment” and those consisting of “access to, and the use of any facilities in any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not”.

8. The Applicants tendered a Google map depicting Mr B’s Hotel which was described as a venue for modern Thai food and live music.

The Witnesses

Mr Masters

9. Mr Masters is an IT Project Manager and on 12 July 2019, the date of his affidavit, he was 32 years old. On 2 December 2017 he and Mr Wayne Clothier decided to go out for dinner in the city.

10. Mr Masters said they drove into the city and parked somewhere around Campbell Street, near Pitt Street. They had not had a drink at this time. They waited out the front of Mr B’s Hotel. While Mr Masters was doing so, he saw security staff at the front of the Hotel turn away three or so people that Mr Masters observed to be well-dressed and not intoxicated. According to Mr Masters, these people appeared to be of Middle Eastern or Indian appearance.

11. He next saw a group of people let into the Hotel that appeared to him to be intoxicated. One person was stumbling as he walked up the street and several of them were talking loudly as they went to enter the Hotel.

12. Mr Masters and Mr Clothier then approached the door to Mr B’s Hotel. Mr Masters saw two security guards at the door. One he observed was dressed in black, had a walkie talkie and may have been wearing a vest with “Security” on it. The security guard put his hand up to Mr Masters and said words to the effect of:

“Sorry boys. I can’t let you in tonight. We’re not mixing crowds. It’s Asian night.”

Mr Masters said:

“That’s not right. You can’t do that. This isn’t right.”

The security guard said:

“Look there’s thousands of bars around, just go find somewhere else.”

13. Mr Masters at the time could see through the doors and windows into the Hotel from the street. He observed a large crowd of people which he described as 99% of Asian appearance.

14. Mr Masters and Mr Clothier then went straight to the closest police station. They complained about being denied entry to Mr B’s Hotel on the basis that they were not of Asian appearance.

15. Mr Masters stated that he felt hurt by being excluded from the Hotel on the basis of his race and appearance. He felt embarrassed and discriminated against. He felt such conduct was a “disgrace, no person in Australia regardless of race should experience this from a licensed establishment”.

16. The Applicants also tendered Mr Masters’ complaint to the Anti-Discrimination Board, which Mr Masters agreed was true and correct. His description of the incident in that complaint form was as follows:

“•   My friend and I attended the venue at around 10.45pm on 2 September.

•   We were appropriately dressed and were not intoxicated in any way, shape or form (we had just arrived into the city for a catch up).

•   The security guards at the door refused us entry based on our race (“you can’t come in tonight guys, we are not mixing the crowds”, amongst other comments).

•   This is inappropriate and against the law under a number of legislative Acts, made us feel vilified and below society based on our ethnicity.

•   We wish to pursue this matter further with yourself and a number of other bodies to ensure this type of treatment ceases and is no longer carried out against people based on race and ethnicity.”

17. Mr Masters was asked if he saw anyone outside the Tribunal who was the security guard that denied him entry on the night in question. He stated that he did not see anyone who was that security guard. We assume, as discussed further below, that this covers Mr Paul Menner, the security guard who was called by the Respondents to give evidence.

18. Mr Masters was extensively cross-examined as to the details of the night in question. Counsel for the Respondents mounted an extensive attack on Mr Masters’ credit. It was suggested that his real motivation was a “cash grab”. Mr Masters denied this and stated that his concern was over the nature of the incident and to prevent it happening again and not to enrich himself personally. In our view, Mr Masters was a credible and impressive witness and dealt with the cross-examination in an effective manner.

Mr Clothier

19. Mr Clothier at the time of his affidavit, 28 July 2019, was 33 years old. He stated that on 2 September 2017 he and Mr Masters decided to go out to the city. They approached Mr B’s Hotel.

20. He states that he saw some people he thought were of Arabic or Indian appearance approach the Hotel and were refused entry by security. He then saw people of Asian appearance approach the Hotel and were admitted without being asked questions.

21. Mr Clothier says that he approached the door of the Hotel and a security staff member said to him words to the effect of:

“I can’t let you in tonight. We’re not mixing crowds.”

Mr Clothier said:

“I’m an expat. I can speak a fair amount of Thai. I lived there.”

22. Mr Clothier showed the security guard his Thai driver’s licence. Nevertheless, he and Mr Masters were prevented from entering the Hotel. Mr Clothier says that they then went to the nearest police station.

23. Mr Clothier says that he felt upset and hurt by being excluded from the Hotel on the basis of his race and appearance. He says he was particularly upset at the Hotel having an Asian night that was only about appearance and not about the understanding of culture or respect for it.

24. Mr Clothier was also subjected to extensive cross-examination as to his credit by counsel for the Respondents. Numerous details about what Mr Clothier could recall about precisely where they parked their car, how they walked to the Hotel, the entrance used and matters of that type were extensively canvassed with Mr Clothier. Having listened to the cross-examination, we are of the view that Mr Clothier was a honest and credible witness. He freely admitted, however, that he was at the time of giving evidence suffering from some serious health issues and his precise recollection of certain peripheral details of the night in question was not good. To the extent that there was any conflict, we prefer the evidence of Mr Masters.

Mr Andrew Freeman

25. Mr Freeman was the General Manager of the First Respondent (Sun Security). In September 2017 he received a phone call from Mr Balayannis, a director of the Second Respondent (Reserve Hotels) which owns and operates Mr B’s Hotel, a Sun Security client. Mr Balayannis said:

“A person has complained that one of your guards has at Mr B’s refused him and his friend entry because they weren’t Asian on 2 September 2017. I need you to speak to the guards who were rostered on to find out what happened. Also check the incident books.”

26. Mr Freeman stated that he then spoke with the following guards who were on duty at Mr B’s Hotel on 2 September 2017 at roughly 10.45pm:

1. Joseph Sadek;

2. Omar El Bacha;

3. Jordan Gamble;

4. Massoud Chopan; and

5. Paul Menner.

27. He said that he spoke with each of the five guards and asked them four questions, and all replied “No” to all of the questions as follows:

1. “On 2 September 2017 did Mr B’s have an Asian-only function?”

2. “Did you refuse entry to anybody because they weren’t Asian?”

3. “Were there any incidents that night that were not recorded in the incident book?”

4. “Did anyone accuse you of being racist that night?”

28. Mr Freeman said he checked the incident book for 2 September 2017 and noted the alleged racist incident was not recorded, nor anything recorded, to suggest that it had happened.

29. Mr Freeman said that prior to completing his response to the Anti-Discrimination Board on 1 February 2018, he again spoke to the guards that were on duty on the night and received the same responses.

30. Mr Freeman stated that Sun Security contracted with Reserve Hotels to provide them with security guards for their venues. He further stated that any security guard either employed directly by Sun Security or by a designated Sun Security subcontractor must undergo a face-to-face induction with Sun Security head office. During the induction process guards are guided through the company policy manuals that are the general induction manual, guarding and crowd control policy manual and work health and safety manual. The guard is required to acknowledge that they understand their obligations and they are given a number of forms to complete, one of which is an acknowledgment that they understand all the company’s policies and procedures.

31. At page 10 of the guarding and crowd control policy manual there is reference to the anti-discrimination laws and it is stated that the guard must not discriminate against a “member of the general public”.

32. According to Mr Freeman, neither he nor to the best of his knowledge has any other representative of Sun Security, authorised any person or security guard to refuse entry to Mr B’s Hotel or any other client premises on the basis of their race. Further, he stated that he was not aware of any Asian-only function being conducted at Mr B’s Hotel. Mr Freeman stated in his affidavit that “the alleged incident appears to have never taken place”.

33. On the night in question the guards were actually employed by Sun Security’s subcontractors, being either Security Operation Specialists Pty Ltd or Icivil Australia Pty Ltd.

34. Mr Freeman also mentioned the names of two guards, Mr Jamie Magann and Mr Ali Marouch, who were on duty from midnight or 12:30 AM on the night in question.

35. When it came to having statements from the guards for the current proceedings, Mr Freeman stated that he was able to receive statements only from Paul Menner, Jamie Magann and Ali Marouch. He stated that whilst multiple attempts had been made over the period of June to August 2019, due to the time involved since the allegation, the other guards had “moved on from the industry and are uncontactable”.

36. He was asked why he had not got statements from the five guards earlier and at the time of the original complaint. He stated that “Because when I asked them originally and it was a flat out no, and they laughed in my face.  I didn't feel the need to get statements.” He agreed that the company kept contact details, such as telephone number or email address, for its security guards in its records.

37. Mr Freeman was asked what was the guard positioning in the evening. He said “it depends on the manager.  There's a lot of factors that come into play.  Depending on who is on duty as the manager.  They prefer ‑ sometimes they prefer one guard at the door, sometimes it's two.  There are guards positioned roving inside.  There's a ‑ it's not really a side entrance, but there's another entrance just up from there where there'd be another guard positioned there as well.  Sometimes that's used as an in or out door.  So, it just depends on the night.”

38. He agreed that the manager on duty from the Hotel would be immediately supervising the five security guards in question. He also said that the managers on duty could tell the security guards how to do their job. They could suggest how they wanted things done on the night.

39. Mr Freeman was asked to describe the layout of Mr B’s Hotel. He said there were three levels. There was the main bar, the mezzanine level and a nightclub downstairs. There was also a Thai restaurant on the main street level. He stated “it's got a lot of Thai clientele.  It's got a Thai restaurant and it's quite popular in their community, so they do have a lot of Thai patrons going there.” He agreed that it was frequented by a lot of Thai people.

40. Mr Freeman tendered correspondence received from the Anti-Discrimination Board, including Mr Masters’ email of 19 December 2017, which included the following information:

“The security guard outlined specifically that:

(i)   He could not let us in today as he wasn’t mixing races.

(ii)   When we stated we were dressed appropriately and not intoxicated.

(iii)   He stated that it is mostly Asians this evening and he did not want any trouble with other races entering.

(iv)   He stated we are not letting other nationalities in this evening and we [were] not allowed in tonight.

(v)   Mr Clothier showed his Thailand licence (he resides in Thailand) and was still refused, with said security guard outlining he is not mixing the crowd and races this evening and we are not allowed in.”

41. In this form Mr Masters also stated:

“We witnessed intoxicated people of Asian descent being allowed in whilst we were standing out the front as well as three gentlemen of Indian and/or Middle Eastern descent be not allowed in, although they were not intoxicated, dressed appropriately and had identification.”

42. Mr Freeman annexed to his statement employee declarations signed by the five security guards in question that they had read and completely agree and understand the three policy documents referred to by Mr Freeman. He said he was rarely involved in the induction process in 2017.

43. Mr Freeman said that it was company policy and enforced to the best of his knowledge and practice, that all refusals of entry into the Hotel be written up in the incident book.

44. In his oral testimony Mr Freeman agreed that if the premises are at their licensed capacity and persons are refused entry for this reason, this would not be reported in the incident book.

Mr Arthur Balayannis

45. Mr Balayannis was the general manager of Reserve Hotels, the owner and operator of Mr B’s Hotel. On or about 16 September 2017 the company’s accountant telephoned him and told him that the licensee/manager of Mr B’s called to say he had received a complaint from a person saying that he and his friend had been refused entry on 2 September 2017 because they were not Asian.

46. Mr Balayannis referred to the request for information sent on 18 January 2018 by the Anti-Discrimination Board to Mr B’s duty manager Ms Thananporn Bunwatcharapansakul.

47. He tendered the Mr B’s Hotel security incident book relating to 2 September 2017. This covered four incidents, none of which appear to relate to the complaint the subject of these proceedings. He stated, “I did not think the applicants were genuine in their complaint, so I decided to take no further action”. He further stated that “I concluded that the allegations must be false”.

48. He denied that Mr B’s Hotel operated any “Asian-only” nights. He stated that at no time has the Board of Directors, any directors, officers, employee or agent been instructed to set a policy which limits or restricts entry to its hotels based on race. He also stated that to the best of his knowledge and belief Reserve Hotels, its directors and employees and agents never authorised Sun Security or its agents to refuse entry to any of its hotels based on race.

45. Mr Balayannis denied that the company practised any racial discrimination towards patrons at Mr B’s Hotel or any of the other licensed premises operated by Reserve Hotels. He indicated that this policy was largely an oral policy and “It's lived with, daily”.

46. He tendered some photographs of patrons at Mr B’s Hotel on 2 September 2017 who were of non-Asian appearance. The photographs showed in the background a number of people of Asian appearance. One photograph also showed a nightclub or dance venue with a male of Asian appearance acting as DJ alongside a person of non-Asian appearance.

47. There was no evidence as to whether the photographs tendered were all of the photographs taken that night or a were only a selection. We infer from the fact that in each photograph where persons are depicted in the foreground, they are of non-Asian appearance, that what has been tendered is a selection of the photographs taken that night to demonstrate the presence of some persons of non-Asian appearance.

48. Mr Balayannis tendered the staff roster for Mr B’s Hotel for 2 September 2017. This revealed a number of staff with Asian or Thai names. It also revealed there to be three duty managers on duty as follows: Polo Mu Tha from 10 PM, Rami Karaki from 8 PM and a casual duty manager being Khongsaeng Yaowalak from 9 PM. Mr Balayannis stated that in the absence of the actual licensee being present on the night of 2 September 2017, any one of these three people could have been acting as the licensee on that night.

49. He also confirmed that Reserve Hotel would have the personal information of such persons such as their phone contact numbers. He stated that “there would have been” a conversation with these duty managers at the time of the complaint. His affidavit does not contain any evidence of such conversations. He stated that he did not make or attempt to make contact with these duty managers at the time of preparing his affidavit.

50. Mr Balayannis gave this evidence:

“Q.  Any security guard that would be posted at the front door of Mr B's Hotel would have come from Sun Security?

A.   One hundred percent.

Q.  And would be used by the Reserve Hotel Pty Ltd for the purposes of providing security services?

A.  A.   Yes”

55. Mr Balayannis tendered the company’s employee handbook which has a one page section dealing with equal opportunity and anti-discrimination. It contained the statement of policy that the company recognises that discrimination is unacceptable. The policy, however, dealt with discrimination against job applicants and employees, rather than any specific reference to employees or agents of the company discriminating against members of the public.

56. He tendered the agreement between Reserve Hotels and Sun Security. It requires Sun Security to abide by any relevant laws. According to Mr Balayannis, at the time he entered into this agreement he said to Mr Freeman words to the following effect: “you must ensure that any guards you provide are aware of their obligations under the anti-discrimination laws and confirm that they will abide by them”. The agreement was executed in October 2015, but he says he sighted the “policy” over the years. He did not state what document he was referring to.

57. He asserted that Reserve Hotels had taken all reasonable steps to prevent security guards from discriminating against a person on the basis of race by reason of:

1. the terms of this agreement with Sun Security;

2. ensuring Sun Security guards understand and are required to abide by Reserve Hotel’s and Sun Security’s anti-racial discrimination policies;

3. management being aware that all such complaints would need to be sent immediately to him as a director of the company;

4. “our company policy of intolerance to racial discrimination”.

Mr Thapanon Wachiranon

58. Mr Wachiranon was the licensee and venue manager of Mr B’s Hotel at the relevant time. We were informed that English was not his first language. Accordingly, a Thai interpreter was arranged to be present by telephone and interpret when Mr Wachiranon gave evidence before the Tribunal. It was arranged that the interpreter would only intervene when the witness felt the need but not otherwise. We note his affidavit was not sworn with the assistance of an interpreter.

59. On about 16 September 2017 Mr Wachiranon received a phone call advising that the individual and his friend were refused entry into Mr B’s Hotel on 2 September 2016. The complaint was against one of the security guards. According to Mr Wachiranon, the complainant said to him that a security guard had told him “Sorry guys we can’t let you in because we are not mixing the crowd” “it’s an Asian-only night”.

60. Mr Wachiranon asked for the approximate time and what he was wearing so he could check the CCTV footage. He was told 10.45pm. He said he checked the CCTV footage and did not see anyone with the appearance of either of the group that looked like “him or his friends”. He said he checked until 00:12am on 3 September 2017 and during that time he found there was a group of males refused entry but the footage was not clear enough to tell him if it was the males. The group he saw seemed to leave quickly and without any hesitation.

61. Under cross-examination, Mr Wachiranon agreed that looking at the footage could be difficult because as he put it, “if it a little bit dark, it hard, because of the like back then, it’s not a digital”. “You can see what people look like, but not 100 percent, but I would say about 90% you would understand what’s going on”.

62. According to Mr Wachiranon, he did not see anything suspicious and did not see anyone of the description of the male given to him on the phone. The CCTV footage was subpoenaed by the applicants but was not produced. Mr Wachiranon said the footage was not kept because it is usually only preserved for a limited time which had passed by the time the Anti-discrimination Board had contacted the company.

63. He was asked about the company’s policy of preserving the CCTV footage when there has been an incident. He stated, “To tell you the truth, if anything that required by police, or anything, any incident, I never fail on it.  We ‑ we always have it ‑ you can find a record from the police. . . . So, never fail”.

64. The cross-examination continued as follows

Q.  Let me put it this way:  You know, as part of your job, that if there's an incident at the hotel, it's important to keep records of that, don't you?

A.  WITNESS:  Yep

Q.  And a primary record will be the CCTV footage, won't it?

A.  WITNESS:  Understand.  Yep.

Q.  Yes.  But it didn't occur to you at the time that you looked at the footage‑‑

A.  WITNESS:  Yep.

Q.  ‑‑that you should preserve that?

A.  WITNESS:  Yep.

Q.  It didn't occur to you?

A.  WITNESS:  Yeah, because of the phone call it ‑ it didn't say anything much, just only saying, "Want to make a complaint", and I don't ‑ I don't even ‑ I'm not a lawyer or whatever, because they not referring to the security or Mr B Hotel, so I don't know what's going on, so that's why I only receive the phone call and then have to check.  I check the camera, as there's nothing there, I look at the book again, and then there's nothing there.  Looking at the photo and then it didn't make sense to me, because we still see a lot of that ‑ like a lot of nationality inside the venue, that's why I probably think this is another ‑ a lie call, so—

Q.  You think it was a lie?

A.  WITNESS:  I'm not ‑ I'm not trying to say there's someone lying, but just saying like maybe just someone try to play.  I don't know.

65. Mr Wachiranon stated that he did not conduct or authorise “Asian-only” nights at Mr B’s. He agreed Mr Rami Karaki was one of his duty managers and while he had left Mr B’s he could still contact him or find him if required.

66. He said Mr B’s Hotel was over three levels with a mezzanine level with a cocktail bar which has capacity for around 100 to 250 people. There is then the main level with a Thai restaurant (which also served some western food), a main bar and downstairs a nightclub/dance venue. He said the nightclub could hold up to around 300 people.

67. Mr Wachiranon was shown the photographs produced by Mr Balayannis and the symbol at the bottom of the photograph which stated “RCA Saturdays”. He said the photographs were taken and shown on the Hotel’s Facebook page. He explained the reference to RCA Saturdays was a reference to Royal City Avenue the well-known entertainment, nightclub and dance venue location or street in Bangkok, Thailand: “It’s a party street”.

68. He agreed this description was promoted on the Hotel’s Facebook social media page and was promoted in association with the Hotel. He denied under questioning several times, however, that Mr B’s promoted the Hotel or RCA Saturdays as having a Thai atmosphere, insisting that “No”, “it public to everyone”.

69. Mr Wachiranon said that he was not on duty at the time of the alleged incident. He did not give evidence of ever being on duty on Saturday nights.

70. Whilst understanding that English was not Mr Wachiranon’s first language, we did not find Mr Wachiranon to be an impressive or reliable witness. His insistence that the Hotel was not promoted to the Thai community was not credible in light of the use of the name “RCA Saturdays” on its Facebook site. Mr Wachiranon appeared to us to be acting as an advocate for his cause rather than a credible witness.

71. We also found his explanation for not preserving the CCTV footage unconvincing. Mr Wachiranon received a specific complaint of a serious nature. Based upon what he alleges he saw on the footage, he did not seek to have Mr Masters clarify or withdraw his complaint. As far as Mr Wachiranon was aware, Mr Masters was intent on pursuing his concerns further, yet he took no steps to preserve the evidence which could have exonerated the company. This also seemed at odds with his evidence of his general practice to preserve the footage if there has been an incident – “if anything that required by police, or anything, any incident, I never fail on it.  We ‑ we always have it “.

72. We also note he referred to not seeing anyone with the appearance given “of a group that looked like him or his friends”. This suggests he was looking for a group of more than two people. In conclusion, having heard his evidence, including that the CCTV footage may not always be clear, we do not find his statement that he did not see anything suspicious on the CCTV footage, in the absence of that footage being produced, as very credible or reliable evidence.

Mr Paul Menner

73. Mr Menner was a security guard at Mr B’s Hotel contracted by Icivil Australia Pty Ltd under contract through Sun Security. He was working as a security guard at Mr B’s Hotel on 2 September 2017. He started his shift at 10.30pm and finished at 4.00am on 3 September 2017. He was wearing his uniform.

74. He stated that when he worked at Mr B’s Hotel he would work the front door from the start of his shift until lockout. In his oral evidence, however, he said that this was the case if you were rostered on the front door for that night. He stated the general position was, or generally, that whoever stands on the front door, stays on the door until the last, but he did not have any distinct memory of being at the front door on that particular night. He also said “there may be a two minute toilet break or a ten minute break to eat some food”.

75. He stated that on the night of 2 September 2017 he never refused entry to two males claiming it was an Asian-only night “as such a night doesn’t exist”. He further stated that at no point on the night of 2 September 2017 or any other night that he worked did he refuse anyone entry based on not being of Asian appearance.

76. Mr Menner also indicated that there usually was a supervising guard on duty on that night who could issue instructions to the guards on duty at the time, such as where to go. He was never the supervising guard. He said it was not so common for instructions to be issued directly from the duty manager of the Hotel. Instructions usually came from the supervising guard and they may be told instructions by the duty manager, but he was not sure.

77. In respect of the patronage at Mr B’s, Mr Menner stated, “There is a vast majority of Asian people there.”

Messrs Ali Marouch and Jamie Magann

78. These two persons were security guards who were rostered to work and worked at Mr B’s Hotel from midnight on 2 September 2017 until they finished their shift some hours thereafter. Both gave affidavit evidence that they did not indicate to any entrants that there was an “Asian-only” night and did not refuse entry to the Hotel to any person on the basis of them not being “Asian”.

79. In light of the fact that these guards did not appear to be on duty at the time of the alleged incident, they were not required for cross-examination.

Issues

80. The issues that arise in these proceedings are as follows:

1. Did the conduct as alleged by the Applicants occur?

2. Was there discrimination / less favourable treatment on the ground of race?

3. Was the alleged perpetrator an agent of the Respondents?

4. Have the Respondents made out the defences under s.53 of the ADA?

Did the conduct as alleged by the Applicants occur?

81. Counsel for the Respondents made a number of submissions in support of the contention that the Tribunal should not be satisfied that the event as portrayed by the Applicants occurred. As previously mentioned, there was a detailed attack on the credit of both of the Applicants by counsel, including the suggestion that they were motivated by financial reward.

82. Having listened to the Applicants give evidence under cross-examination, and considering all of the evidence, we find the Applicants were honest witnesses who were not seeking to pursue a claim for financial reward. They gave evidence to the effect that their motive in pursuing the claim was to right what they saw as a significant wrong and to prevent such conduct occurring in the future. We accept this evidence.

83. Further, we find it inherently improbable that the Applicants would seek to pursue this claim over such a lengthy period of time and with significant inconvenience to themselves, including by giving evidence before the Tribunal, for financial reward. Awards of this Tribunal for such discrimination, in the absence of any economic loss, are generally modest.

84. Next, counsel for the Respondents submitted that the Applicants gave different versions of the events in question which made their accounts inherently unreliable. A number of differences were pointed to. Mr Clothier, it was submitted, gave a slightly different version of how he walked from the car to the Hotel and other similar matters. Mr Clothier freely admitted that his recollection of the minute details of the night was not good. In our view, nothing turns on these minor discrepancies and they tend to only highlight that the witnesses were giving honest accounts of their recollection without collaborating so as to ensure their versions were precisely the same.

85. Next, it was submitted that Mr Clothier’s version was that they were refused entry at the secondary or side entrance to Mr B’s. This was said to be inconsistent with the evidence from the Respondents’ witnesses that the side door was closed by 10.00pm on a Saturday night.

86. In our view, it is not clear on Mr Clothier’s evidence whether he was admitting that he was refused entry at the side entrance or secondary entrance or was merely giving, on his recollection, a slightly different location of the entrance in question. This may simply suggest Mr Clothier’s recollection was wrong as to the location of the entrance. This was not adequately explored in cross-examination as to whether Mr Clothier was agreeing that there were two entrances available to be used at the time and he was accessing the smaller entrance.

87. In our view, Mr Masters’ recollection was more accurate and precise and he had far more confidence in his recollection of the events in question. In our assessment of the witnesses, in the case of any differences in evidence between Mr Clothier and Mr Masters, we prefer the evidence of Mr Masters. Accordingly, we find the Applicants approached the main entrance to Mr B’s at which point they were denied entry.

88. Counsel for the Respondents then referred to Mr Clothier’s evidence which did not include a comment by the security guard to the effect of “It’s Asian night”. It was submitted that Mr Masters’ evidence of this being said should be regarded as a recent reconstruction in light of the fact that in the initial complaint to the Anti-Discrimination Board there was no reference to the security guard saying “It’s Asian night”.

89. We note that in the initial complaint to the Anti-Discrimination Board by Mr Masters, after reference to what the security guard had said, which was in quotation marks, there was the statement “amongst other comments made”. Hence, it is clear that Mr Masters was not intending to be exhaustive at that point in time. Further, in subsequent correspondence with the Anti-Discrimination Board in December 2017, Mr Masters does refer to the statement being made by the security guard “it is mostly Asians this evening and he did not want any trouble with other races entering”.

90. Finally, we note that according to Mr Wachiranon when Mr Masters contacted him and described the complaint some two weeks after the incident, Mr Masters complained that the security guard said, “it’s an Asian-only night”.

91. Having head Mr Masters’ evidence under cross-examination, and considering the above matters, we are satisfied that Mr Masters’ evidence in this regard should not be considered to be a recent reconstruction but was an honestly held, reliable account and we so find.

92. In support of the contention that the Tribunal should find that the alleged incident never occurred and there was no reference to an “Asian-only night” by any security guard at the time, the Respondents submitted that there was in fact no Asian-only night on 2 September 2017. The Respondents referred to the evidence of Mr Balayannis and Mr Wachiranon. Further, it was submitted that there was no advertising on the internet, no pamphlet or any other corroboration in support of the existence of an Asian-only night.

93. The Respondents accepted that Mr B’s Hotel “because of its proximity and location” had a predominantly Asian customer base. It would be superfluous commercially for the Respondents to conduct an Asian-only night in a predominantly Asian area of Sydney.

94. This submission does not fairly present the evidence as a whole. Also, we had difficulty with Mr Wachiranon’s evidence. We cannot accept his suggestion that Mr B’s was not promoted as a Thai venue or to a Thai clientele in particular, given the reference to “RCA Saturdays” on its Facebook site which is consistent with promoting the venue as a Thai-style nightclub. Further, it was not Mr Masters evidence that the security guard said, “it’s an Asian only night”, but rather, “it’s Asian night”.

95. The Respondents also referred to the photographic records produced by Mr Balayannis which show a number of non-Asian persons present on 2 September 2017 at Mr B’s. The difficulty with this evidence is that there is no evidence as to how representative the photographs were of the patrons at the Hotel generally on the night. The number of non-Asians present in the photographs is relatively small. The evidence from Mr Wachiranon was that the Hotel had a capacity of over 500 persons. Accordingly, the photographs do not allow the Tribunal to know the extent of the non-Asian persons present compared to those of Asian appearance.

96. Consistent with Mr Masters evidence, we find that the vast majority of patrons at the time were of Asian appearance.

97. We note that none of the duty managers on duty at the time or generally on Saturday nights have given evidence before us. We have no adequate explanation for why these witnesses were not called to deny knowledge of any “Asian only night” or of the conduct of the security guard in question. In such circumstances, we find it appropriate to infer that their evidence would not assist the Respondents: see Jones v Dunkel (1959) 101 CLR 298.

81. In addition, we have no evidence from the supervising security guard on duty at the time

82. We note that it is highly unlikely that there would ever be advertising as to the existence of an Asian-only night. In any event, it is not necessary for us to find whether there was an Asian-only night at the time or not. The issue is whether or not we are satisfied that the security guard in question stated that it was an Asian night. In our view, Mr Masters was a highly credible witness and based on his evidence, which has not been directly contradicted by the security guard in question, we are satisfied a statement to that effect was made.

83. The Respondents also contended that the Hotel’s security incident book “clearly shows no incident evidencing the alleged refusal”. This does not cause us to doubt that the incident occurred as alleged. It is unlikely that if the security guard in question decided to screen patrons on the grounds of race, possibly when the venue was at, or close, to capacity, that this would be recorded in the incident book.

84. The Respondents refer to the evidence of Mr Freeman that he interviewed all the guards on shift at Mr B’s at the time and each indicated to him that they had not refused entry to anybody because they were not Asian, and that nobody accused them of being racist that night. We have difficulty placing much weight on this evidence. This is because, apart from Mr Menner, none of the other guards have given evidence. We find, for the reasons which follow, that the guard who refused the Applicant’s entry was not Mr Mennerbut was one of the other four security guards identified by Mr Freeman on duty at the time on that night.

85. We accept Mr Masters’ evidence that the guard that refused him entry was not outside the Tribunal or in the foyer on the morning that he gave evidence. We note Mr Masters was not sought to be cross-examined on this proposition. Further, when Mr Menner subsequently gave evidence, no evidence was led from him that he was not outside the Tribunal or in the foyer at the time that Mr Masters was giving evidence. We are therefore more inclined to draw the inference from the existing evidence that Mr Masters saw Mr Menner on the morning that he gave evidence: Commercial Union Insurance Company of Australia Limited v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E (Handley JA with whom Kirby P agreed).

86. It was not submitted by the Respondents that Mr Masters’ evidence may have been referring to people other than Mr Menner. Accordingly, we find on the balance of probabilities that Mr Masters saw Mr Menner outside the Tribunal when, or before, he was giving evidence but he did not identify or recognise him as the guard that refused him entry. We accept this evidence.

87. Further, and in any event, Mr Masters was not sought to be re-called after Mr Menner had given evidence in the presence of Mr Masters to put to him that Mr Menner was the guard that he had seen on the night. We note Mr Menner’s evidence that he could not actually remember being on the door on that night and that he was not on the door every night he was at Mr B’s. Accordingly, it remains more likely than not, in our view, that the guard which Mr Masters saw on that night was one of the four other guards identified by Mr Freeman.

88. Mr Freeman gave evidence that the four other guards in question were no longer contactable. They were obviously contactable at the time. Statements or affidavits could have been obtained from them, but we have no written statements from the guards in question.

89. Further, the evidence of Mr Freeman does not go so far as to establish that all reasonable attempts were made to try and bring those security guards in question forward as witnesses before us. Whilst the explanation for not calling the four other guards may be sufficient to mean no Jones v Dunkel inference should be made (Cross on Evidence, 11th Ed (2017), JD Heydon at [1215]), ultimately, it leaves the version of events by the Applicants as essentially uncontradicted.

90. Next, the Respondents sought to discredit the Applicants by reference to the fact that both claimed to have reported the matter to the Police immediately after the incident, but neither had produced any police report or incident number. It is not clear to us why the Applicants would regard it as of importance to produce the police report which, as far as they were concerned, would simply set out their version of events, to the same effect as their report to the Hotel and the Anti-Discrimination Board. If the Respondents sought to question the credibility of the Applicants by reference to what was said to the Police, it would been for them to produce the report.

91. The suggestion from the Respondents was that the reporting to the Police in fact never happened. There was said by the Respondents, based upon the cross examination, to be a different version given by the Applicants of precisely what happened at the police station. Their versions of events at the police station do not cause us to doubt that they went to the police as they said and that they reported the incident as they have alleged to us in their evidence to the Tribunal.

92. Lastly, the Respondents referred to the evidence of Mr Wachiranon to the effect that he checked the CCTV footage and there was no footage of the alleged incident. The difficulty with this submission, of course, is that the CCTV footage has not been produced. The Tribunal is not able to find that there was no footage of the alleged incident. Having heard the evidence of Mr Wachiranon, in our view he was an unsatisfactory witness seeking to give evidence to assist the case for Mr B’s. We find his evidence as to why he did not keep the footage quite unsatisfactory. His evidence was that he did not keep the footage in question because he did not see anyone of the appearance of a group that looked like Mr Masters or “his friends”, and he did not see anything suspicious. Having heard Mr Wachiranon giving evidence under cross-examination, we find it difficult to place any reliance on this evidence.

93. Given our assessment of Mr Wachiranon as a witness, we cannot accept that the CCTV footage was inconsistent with the version of the events given by the Applicants in the absence of that footage being preserved and tendered. One would have expected that if Mr Wachiranon was keen to establish that, as he has asserted in his evidence, Mr B’s did not conduct or authorise “Asian-only” nights, that he would have kept the footage to prove this position.

94. In conclusion, we find that the events as stated by Messrs Masters and Clothier occurred as they have stated in their evidence to us. In particular, we find as follows:

1. At approximately 10.45pm, Messrs Masters and Clothier went to the front of Mr B’s Hotel.

2. At that time, the security staff at the front of the Hotel turned away some people who were well-dressed, not intoxicated and who were of Middle Eastern or Indian appearance.

3. Shortly thereafter, a group of people who were of Asian appearance, some of whom showed signs of being intoxicated, were allowed entry into Mr B’s.

4. Mr Clothier and Mr Masters then approached the entrance to Mr B’s where there were two security guards at the door and one said words to the effect of:

“Sorry boys. I can’t let you in tonight. We’re not mixing crowds. It’s Asian night.”

5. That security guard was not Mr Menner. The security guard was one of the four security guards, other than Mr Menner, identified by Mr Freeman on duty at the time on that night.

6. Messrs Clothier and Masters then left and Mr Masters observed from the street that at the ground level of the Hotel there was a large crowd of people, the vast majority of whom was of Asian appearance.

Was there discrimination / less favourable treatment on the ground of race?

112. Section 19 of the ADA is as follows:

“19 Provision of goods and services

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.”

113. It is not disputed by the Respondents that refusing to permit the Applicants entry into Mr B’s amounts to refusal to provide them with services within the meaning of s.19 of the ADA. The Respondents, however, disputed that there was any less favourable treatment on the ground of race. Principally, this was on the basis that the Tribunal should not be satisfied that there was any reference to “it’s Asian night” or that they had been discriminated against on the ground of race or that there had been any less favourable treatment of them.

114. The Respondents submitted that there was no evidence that there was treatment of the Applicants less favourably than in the same circumstances, or in circumstances which are not materially different, the alleged perpetrators treated or would treat a person of a different race: see s.7 of the ADA.

115. In order to substantiate a complaint of race discrimination pursuant to s.19(a) and s.7(1)(a) of the ADA against the Respondents, the Applicants must prove that:

1. they are of a particular race as defined in the ADA;

2. the alleged perpetrator (“the security guard”) has denied them services;

3. that treatment was less favourable than the treatment that was or would have been afforded to an actual or hypothetical person of a different race in the same or similar circumstances (“differential treatment”);

4. at least one of the reasons for the less favourable treatment was the race of the Applicants; and

5. the Respondents are vicariously liable for the conduct of the security guard.

116. Mr Masters gave evidence that he was a “Wiradjuri man” and proud to be part of Australian society. We find he is an indigenous Australian and an Aboriginal. We find that the Applicant, Mr Clothier, was a member of the Caucasian race. Both Applicants, by reason of their “race” or their “colour, nationality, descent and ethnic[ity]” (see s4 of the ADA), were not of Asian appearance. 

117. As noted above, it is not disputed by the Respondents that refusing to permit the Applicants entry into Mr B’s amounts to refusal to provide them with services within the meaning of s.19 of the ADA.

118. Direct discrimination has two elements, differential treatment and causation. For differential treatment on the grounds of race to occur the treatment of the complainant must be less favourable than the treatment which was or would have been afforded to a person of a different race and that treatment must have occurred in circumstances which are the same or not materially different. The treatment which was afforded to the complainant must be objectively less favourable than the treatment which was actually afforded to a person of a different race, or which would have been afforded to a person of a different race, in the same circumstances as the complainant or in circumstances which were not materially different. In Purvis v New South Wales [2003] HCA 62; 217 CLR 92; the majority (Gummow, Hayne and Heydon JJ) found at [224] that the relevant circumstances "are all of the objective features which surround the actual or intended treatment of the … person by the person referred to in the provision as the "discriminator"’.

119. We are satisfied that the Applicants were treated less favourably than in the same circumstances, or in circumstances which are not materially different, the security guard in question treats or would treat a person of a different race, being a race which exhibits an Asian appearance. We have found that at the time the Applicants were turned away those of Asian appearance were admitted to Mr B’s. We have also found that the security guard said to the Applicants words to the following effect: “Sorry boys. I can’t let you in tonight. We’re not mixing crowds. It’s Asian night.”

120. When considering causation, the focus is on the "real reason" for the alleged discriminator's act: see Purvis v New South Wales (2003) 217 CLR 92 at [166]. It is the grounds or the reasons for a respondent’s action, as opposed to his or her intentions or motives for so acting, which are relevant: see Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [47]; Purvis v New South Wales (2003) 217 CLR 92 at [160] and IW v City of Perth (1997) 71 ALJR 943 at 975 per Kirby J. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination, then the act is taken to be done for that reason. That is the case whether or not the lawful reason is the dominant or a substantial reason for doing the act: see s4A of the ADA.

121. We are satisfied that one of the real reasons for turning away the Applicants was because of the Applicants’ race, in particular, because the Applicants were not Asian in appearance. We note that s 7(2) of the ADA provides that, “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 . . . a characteristic that appertains generally to persons of that race”.

122. The statements made by the security guard at the time, as found above, supports this conclusion. It is also supported by the fact that immediately prior to refusing the Applicants entry to Mr B’s, the security guard in question permitted entry to a group of people, some of whom appeared to be intoxicated, who were of Asian appearance and turned away some people who were well-dressed, not intoxicated and who were of Middle Eastern or Indian appearance.

Was the alleged perpetrator an agent of the Respondents?

123. So far we have found that the security guard contravened s.19 of the ADA; however the Applicants seek a finding that the Respondents are liable for such conduct.

124. The thrust of the Respondents’ submission in this regard is that in the absence of the Applicants being able to identify who the alleged perpetrator was, they are unable to establish who the perpetrator was employed by, contracted to or the agent of. In other words, absent identification of the perpetrator, the Tribunal should not be satisfied that such unidentified person had any legal relationship, such as agency, with either of the Respondents.

125. In support of the above proposition, the Respondents relied upon two decisions. First, Dadyal v AVS Australian Venue Security Services Pty Ltd [2008] NSWADT 110. In particular, the Respondents relied upon paragraph 10 of the decision where the Tribunal stated:

“The Applicant bears the onus of proving the claim on the civil standard of proof, that is the balance of probabilities. Unfortunately, the Applicant was unable to provide the Tribunal with necessary relevant evidence. There is no evidence before the Tribunal in respect of the identity of the “security guard”, either his name or who he was employed by. There is also no evidence of the relationship between the Greenacre Hotel and the Respondent. The Applicant could have obtained this evidence either in the form of a written statement from an employee of the hotel or some other documentary evidence from the hotel, however, failed to do so.”

126. The allegation in the above case was that the applicant went into the Greenacre Hotel and he was wearing a turban, being a Sikh. A person who identified himself as Kevin, the hotel manager, told him that it was a hotel rule that he would not be served unless he removed his headwear. The applicant declined to do so and was then refused service. The manager then called a security guard and asked the applicant to leave. The applicant resolved the dispute with the Greenacre Hotel but the complaint remained against the alleged security provider at the hotel.

127. The facts before us are quite different to the above case. The evidence is that the Hotel was operated by the Second Respondent and it engaged the First Respondent, Sun Security, to provide security services on the night in question. Further, the evidence is that at the time of the alleged incident the Hotel had engaged Sun Security to provide five security guards, which they did, and the names of those five security guards have been given in the evidence.

128. We have accepted the Applicants’ evidence. This includes the fact that a person apparently acting as the Hotel’s security guard at the front entrance declined them entry into the Hotel. We find it highly unlikely that such person was not one of the five security guards contracted to provide security services on that night. We also find, in light of hearing the evidence of Mr Menner, that it was unlikely to have been him who refused the Applicants entry to the Hotel.

129. Accordingly, we find on the balance of probabilities that such security guard was one of the four guards, other than Mr Menner, supplied by Sun Security to act as the security guard working on behalf of the Second Respondent, the licensed operator of Mr B’s Hotel.

130. The Respondents, nextly, relied upon the case of Chen v Premier Motor Service Pty Ltd t/as Premier Illawarra [2017] NSWCATAD 342 at [42]-[43] where the Tribunal stated:

“On 24 October 2016 Mr Chen complained to Premier Illawarra by email saying, “There are now many drivers who refuse to stop for me at the stops by purposely overshooting and undershooting. They then remove their ID cards as I board the bus to prevent me from recording their ID number. They also insult and intimidate me as I board the bus.”

Mr Chen did not identify the drivers by name. Without that information, the allegations cannot be put to the individual drivers and we cannot make a finding as to whether Premier Illawarra is vicariously liable for anything one of their employees did: Anti-Discrimination Act, s.52. This part of the complaint is not substantiated and is dismissed.”

131. In our view, there is no statement of principle in this case which prevents the finding we have made above as to the security guard in question being an agent of Sun Security and Mr B’s Hotel. In our view, the essence of the Tribunal’s reasons for decision at [42] and [43] is that, given the vagueness and breadth of the allegation – that many drivers purposely overshoot or undershoot the stop when he is at the bus stop, and they also insult and intimidate him as he boards the bus – absent some greater specificity, such as the identity of the drivers by name which could be put to the individual drivers, the Tribunal was not satisfied on the balance of probabilities as to the complaint of racial discrimination against the employer. If the name(s) of the driver(s) were supplied, a Jones v Dunkel inference could have been relied upon in the absence of those drivers being called. However, absent any identification of who the drivers may be, the vagueness of the allegation remained a difficulty for the complainant.

132. In contrast, here the allegation is quite specific. A security guard controlling the entrance to Mr B’s Hotel at a specific time on a specific night refused the Applicants entry into the Hotel. We have evidence as to who the security guards were on duty at that time on that night. We also have evidence that such persons were engaged by Sun Security to provide security services on behalf of Mr B’s Hotel.

133. The Respondents submitted that absent evidence of the identity of the security guard, it would be procedurally unfair and a denial of natural justice to find the Respondents vicariously liable as the allegations cannot be put to the perpetrator and the Respondents cannot prepare a defence as to what their relationship was to the perpetrator.

134. We doubt that a failure to identify the security guard in question gives rise to a denial of natural justice. We note that the five security guards were identified and the allegations were put to them at the time of the complaint. There was also CCTV footage which would have allowed, at least potentially, the Respondents to defend the allegation. The failure of the Respondents to have signed statements from the five security guards or call them to give evidence or produce the CCTV footage cannot be laid at the feet of the Applicants, or of this Tribunal

131. Accordingly, we reject this submission.

132. In conclusion, we find that the security guard which, according to our previous finding, unlawfully discriminated against the Applicants on the grounds of their race, was an agent of both of the Respondents. Hence, the Respondents, subject to s.53 of the ADA, are vicariously liable for the agent’s conduct: see Shellharbour Golf Club v Wheeler [1999] NSWSC 224

133. We now turn to s.53 of the ADA.

Have the Respondents made out the defences under s.53 of the ADA?

138. Section 53 of the ADA relevantly provides:

“53 Liability of principals and employers

(1)   An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

…

(3)   Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

…”

139. The Respondents contend that they had neither jointly nor severally authorised, embraced, sanctioned, approved, countenanced or permitted the alleged conduct of their agent, the security guard. The Respondents, however, accepted that it is for them to establish that they did not authorise the offending conduct and/or took all reasonable steps to prevent it.

140. In this regard, the leading authority on the operation of s.53(1) is Shellharbour Golf Course v Wheeler where Studdert J stated at [33]:

“…As I construe s.53(1) once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of the responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication.”

141. His Honour considered the meaning of the word “authorise” as appears in the context of s.53(1). His Honour cited the judgment of Gibbs J (at 12-13) in University of New South Wales v Moorhouse (1974-75) 133 CLR 1 where the meaning of “authorise” in the setting of s.36 of the Copyright Act 1968 was considered:

“The word ‘authorise’, in legislation of similar intendment to s.36 of the Act, has held judicially to have its dictionary meaning of ‘sanction, approve, countenance’: Falcon v Famous Players Film Co [1926] 2 KB 474 at 491; Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 at 489, 497 … It can also mean ‘permit’, and in Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 ‘authorise’ and ‘permit’ appear to have been treated as synonymous. A person cannot be said to authorise an infringement of copyright unless he has some power to prevent it: Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR at 497-498, 503 express or formal permission or sanction, or active conduct indicating approval, is not essential to constitute an authorisation; inactivity or indifference, exhibited by acts of commission or ownership may reach a degree from which an authorisation or permission may be inferred: Adelaide Corporation v Australasian Performing Right Association at 504. However, the word ‘authorise’ denotes a mental element and it could not be inferred that a person had, by mere inactivity, authorised something to be done if he neither knew nor had reason to suspect that the act might be done. Knox CJ and Isaac J referred to this mental element in their dissenting judgments in Adelaide Corporation v Australasian Performing Right Association Ltd. Knox CJ at 487 held that indifference or omission is ‘permission’ where the party charged (amongst other things) ‘knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done’. Isaacs J apparently considered that it is enough if the person sought to be made liable knows or has reason to know or believe that the particular act of infringement ‘will or may’ be done.”

142. As the Respondents conceded, and as the Supreme Court made clear in Shellharbour Golf Course v Wheeler, the onus lies on the Respondents to establish that they did not authorise the offending conduct.

143. We are not satisfied that the Respondents have discharged their onus in this regard. First, we note that Mr B’s Hotel has not called the three “duty managers” on duty on the night in question. We accept the evidence, and we find, that the duty managers had a role in directing the security guards. They would have been the obvious persons who could have authorised the security guards to give some form of preference to those of Asian appearance in being admitted into the Hotel.

144. We note in this regard that mere inactivity or indifference may be enough if the duty managers knew or had reason to know that such conduct will or may be done. This is of particular importance here, as an inference could be drawn from the evidence that the duty managers have been aware of the conduct of the security guards on the night that the Applicants were refused entry. This makes the evidence of the duty managers of critical importance.

145. In the absence of calling such duty managers we cannot be satisfied that Reserve Hotels has discharged the onus on it of demonstrating that it did not authorise the conduct of the security guard in question. Next, we did not find Mr Wachiranon a credible witness. He was not on duty at the time. Further, apart from very broad evidence as to there not being any “Asian-only” night and the Hotel being open to all, he did not give direct evidence of any instructions he gave to security guards or his duty managers who were on duty on the night in question.

146. Next, we note that neither the security guard in question nor the “supervising security guard” on duty on the night in question have given evidence. We accept the evidence of Mr Menner that the supervising security guard would have played a role in directing the other security guards in their duties. The supervising security guard could have given evidence that he did not authorise the guard in question to behave as alleged by the Applicants. Absent evidence from either of these witnesses, we cannot be satisfied that Sun Security has discharged the onus on it of demonstrating that it did not authorise the conduct of the security guard in question.

147. The principal contention of the Respondents was that they had taken all reasonable steps to prevent the security guard from contravening the ADA within the meaning of s.53(3) of the ADA. Reliance was placed upon the evidence of Mr Balayannis and the employee handbook. The difficulty with reliance on the employee handbook is that it does not apply to and was not provided to security staff.

148. Next, the Respondents relied upon Mr Balayannis’ evidence that he has many verbal communications with staff about appropriate conduct and that, as he put it, “It's lived with, daily” the company’s policy of non-racial discrimination. Again, the difficulty with this evidence is that it was not a set of verbal communications that would extend to security staff engaged through Sun Security. Further, there was no specific evidence of any instructions to the duty managers who were on duty when the Applicants were refused entry.

149. The Respondents submitted that it should be found that Mr B’s Hotel took all reasonable steps to prevent the conduct in question by virtue of its engaging Sun Security, which in turn had appropriate anti-discrimination policies in place which the security guards understood and acknowledged.

150. In this regard, the Respondents relied upon the evidence of Mr Freeman which annexed Sun Security’s anti-discrimination policy. Particular reference was made to the fact that all subcontracted security guards were required to read and adopt the company’s policy documents by signing an induction document. One such document included specific reference to the illegality of discriminating against the general public on a prohibited basis, including race. As the Respondents put it:

“The Second Respondent contracted with the First Respondent specifically ensuring that there be no breach of the AD Act. The Second Respondent contracted with its subcontractors specifically ensuring that there be no breach of the AD Act.”

151. The Respondents referred to the evidence of Mr Menner that at induction he was specifically informed of the company’s anti-discrimination policy and to the four guards’ signatures on a document acknowledging they had received and understood all of the relevant company policies and manuals, which included the anti-discrimination policy.

152. We note that the Respondents bear the onus of making out the defence under s.53(3) of the ADA. We are not satisfied that they have done so for the following reasons.

153. First, the four guards, one of whom we have found on the balance of probabilities was the security guard in question, have not given evidence. Accordingly, there is no evidence as to the extent to which any anti-discrimination policy was sufficiently communicated to any of these guards. Whilst the Tribunal has the guards’ signatures on a document acknowledging they read and understood the company’s policies and manuals, given the enormous size of these documents, in the absence of direct evidence from the guards or the person who conducted the induction, we are not satisfied the Respondents have discharged the onus on them of demonstrating that the four guards in question in fact had read and understood the anti-discrimination policy.

154. We note there is evidence of the practice to bring home the anti-discrimination policy to the guards during induction, but in our view this evidence is, at best, one of general practice and likely to break down at any point for any individual, again given the large size of the documents in question.

155. Second, the Respondents have not identified and given evidence from the “supervising” security guard on the night in question. Such person could have taken reasonable steps to ensure that the guards understood that there was to be no racial-based policy for admitting people into the licensed premises.

156. Third, there has been no evidence given by the duty managers engaged by the Hotel on the night in question. They too could have given evidence not only of their lack of permission or approval of any racial-based admittance of patrons, but also of steps they could have taken, reasonably, to prevent such conduct occurring.

157. The evidence led by the Applicants suggests that the conduct of the security guard was based upon a policy of “not mixing the crowds” which may have applied to people generally over the course of the evening. We note that the Applicants’ evidence, which we accept, was that persons before them were refused entry and those persons were not of Asian appearance. We find that the security guards in question did not permit them entry into the premises on the grounds of their race.

158. A reasonable step that the supervising security guard and the duty managers could have taken, either singularly or jointly, if they became aware of such conduct is to have stopped such conduct at an earlier point in the evening so as to have prevented the discrimination or less favourable treatment on the ground of race that the Applicants themselves suffered. In addition, as explained above, in the absence of such persons giving any evidence we are unable to be satisfied that such persons had not authorised the racially discriminatory conduct.

159. Accordingly, we reject the Respondents’ defences under s.53. We find the Respondents have not discharged the onus on them to demonstrate that they have not authorised, either expressly or by implication, the conduct in question. Further, we find the Respondents have not discharged the onus upon them to satisfy us that they have taken all reasonable steps to prevent the conduct complained of.

Conclusion

160. For the foregoing reasons, we find that the Respondents have contravened s.19 of the ADA on the basis that they are vicariously liable for the conduct of the security guard on 2 September 2017.

Damages

161. The task of assessing damages for non-economic loss in a case of unlawful discrimination is, as the Respondents conceded, notoriously difficult. The ‘injury’ is often intangible and difficult to measure. As Wilcox J in Hall v Sheiban (1985) ALR 503 (at 543) stated, merely because damages for matters such as injury to feelings, distress and humiliation “are not susceptible to mathematical calculation”, this is not a good basis to ignore these items.

162. In Dell v Dalton (1991) 23 NSWLR 528, Handley JA (with whom Kirby P and Priestley JA agreed) stated (at 533) that the assessment of non-economic loss involves:

“…questions of fact and degree, and matters of opinion, impression, speculation and estimation, calling for the exercise of common sense and judgment.”

163. Some award of damages for racial discrimination for general damages include Tupou v Scruffy Murphy’s Pty Ltd [2007] NSWADT 192 where the award was $6,000 and Cook v Scruffy Murphy’s Pty Ltd [2007] NSWADT 129, where the award was $2,500. Mr Masters’ evidence was that he:

“…felt hurt by being excluded from the hotel on the basis of my race and appearance. I am Wiradjuri man and proud to be part of Australian society. I felt embarrassed and discriminated against by the hotel staff on the evening of 2 September 2017. For this to occur in this day and age is a disgrace, no person in Australia regardless of race should experience this from a licensed establishment.”

164. Mr Clothier’s evidence was that he:

“…felt upset and hurt by being excluded from the hotel on the basis of my race and appearance. I live in Asia and have a large amount of respect for Thai culture. I was particularly upset at a hotel having an “Asian” night that was only about appearance and not about this understanding of cultural respect for it.”

165. In our view, this cannot be regarded as a trivial or insignificant case of race discrimination. In our view, an appropriate award would be $7,500 to each Applicant for which the Respondents shall be jointly and severally liable.

Ancillary Orders

166. The Applicants sought an apology and also orders ensuring proper direction and procedures are put in place in respect of the conduct of security guards at Mr B’s Hotel to ensure that such conduct does not occur again.

167. At the hearing, the parties agreed that if the Tribunal found the complaint substantiated, the parties would be given an opportunity to comment on any proposed ancillary orders which may be made by the Tribunal.

168. Relevantly, s.108(2) of the ADA provides that if the Tribunal finds the complaint substantiated, it may do any one or more of the following:

“(c)   except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d)   order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both)…”

169. We are currently inclined to suggest a form of apology which should be published by Mr B’s Hotel on its Facebook and web page for a period of time. We will invite the parties to make submissions on the form of this apology.

170. We note that s.108(2) enables the Tribunal to make an order “enjoining the Respondent from continuing or repeating any conduct rendered unlawful by this Act or the Regulations”. We are currently inclined not to make any order under s.108(2)(b) as we are not convinced there is a likelihood of the conduct being repeated. We will hear submissions on this, however.

171. We note that under s.108(2)(c) an order may be made that the respondent perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant. As currently advised, we have difficulty seeing how any conduct directed to improving the practices at Mr B’s Hotel could be said to redress any loss or damage suffered by the Applicants, but again, we will hear submissions in this regard.

Orders

1. The complaint of racial discrimination under s.19 of the Anti-Discrimination Act 1977 (NSW) against the Respondents is substantiated.

2. The Respondents are jointly and severally ordered to pay the Applicants damages in the amount of $7,500 each.

3. The Applicants are to file within 14 days hereof submissions in respect of any ancillary orders the Tribunal should make under s.108(2) of the Anti-Discrimination Act 1977 (NSW) and in respect of costs.

4. The Respondents are to file any submissions in response within 14 days of receipt of the Applicants’ submissions.

5. The Applicants are to file any submissions in reply within 14 days of receipt of the Respondents’ submissions.

6. Any such submissions are to include submissions as to whether or not the Tribunal should dispense with a hearing on the remaining issues pursuant to s.50(3) of the Civil and Administrative Tribunal Act 2003 (NSW).

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 30 April 2020