McElroy v Sutton (No 2)

[2013] NSWADT 9

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	McElroy v Sutton (No 2) [2013] NSWADT 9
Hearing dates:	22 and 23 November 2012
Decision date:	16 January 2013
Jurisdiction:	Equal Opportunity Division
Before:	A Scahill, Judicial Member N Hiffernan, Non Judicial Member D Kelleghan, Judicial Member
Decision:	Complaint dismissed
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
Cases Cited:	Dutt v Central Coast Area Health Service [2002] NSWADT 133 Jones and Anor v Ekermawi [2009] NSWCA 388 Purvis v NSW (2003) 217 CLR 92, 142-143 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26;
Category:	Principal judgment
Parties:	Ian McElroy (Applicant) Damien Sutton (First Respondent) Craig Waters (Second Respondent)
File Number(s):	111138

REasons for decision

Introduction

1. The Applicant, Ian McElroy lodged a complaint with the Anti-Discrimination Board on 30 June 2011 that he had been discriminated against on the grounds of his presumed homosexuality in the provision of goods and services by the licensee of the Royal Hotel Guyra, Mr Damien Sutton. Mr McElroy's complaint outlined that on 4 June 2011 he had been abused by the licensee, Mr Sutton and told directly that "homosexual poofters" was (sic) not welcome in his hotel. When he had returned to the hotel the following day the barman, Mr Walls had told him that the licensee had told the barman that he had been refused service and told to leave. Further the complaint stated that "I have not been allowed back in and he has made salacious statements around town concerning sexuality."

1. The President of the Anti-Discrimination Board investigated the complaint. The licensee, Mr Sutton, told the President that the ban was imposed because of suspicions that McElroy was selling drugs and spiking drinks. The President declined the complaint as lacking in substance in October 2011. Mr McElroy then sought leave of the Administrative Decisions Tribunal for his complaint to proceed to the Tribunal. In February 2012 leave was granted by Deputy President Hennessy for the complaint of discrimination in the refusal of provision of goods and services on the grounds of presumed homosexuality to proceed in the ADT. During the leave hearing the parties agreed that the Respondent had been providing goods and services and that these had been refused. The precise terms of the refusal however were not clear. At the hearing of the matter in November 2012 the Respondent said that the Applicant was barred for 3 years from the fourth of June 2011 when he had had a discussion with Mr McElroy. Despite not having spoken again to Mr Sutton, Mr McElroy had understood from "talk around town" that he had been barred for life.

1. The matter was heard over two days in Armidale. For the Applicant, statements had been filed by the Applicant, Ms Maria Bull, Mr Wayne Leslie and other witnesses who were not called upon. At the hearing evidence was given in the Applicant's case by Mr McElroy, Ms Bull and Mr Leslie. For the Respondent, statements had been filed by Mr Sutton and Mr Walls, the barman. At hearing, Mr Sutton the licensee of the hotel and his business partner Mr Waters gave evidence, as did Senior Constable Robinson of Guyra police and Geoffrey Walls, barman at the hotel.

Legal principles

1. It is unlawful for a person who provides goods or services to "discriminate" against another person on the ground of that person's homosexuality or presumed homosexuality by refusing to provide those services: AD Act, s 49ZP. In this case, there is no dispute that Mr Sutton provides goods and services and that he has refused to provide those goods and services to Mr McElroy. At hearing, the issue in this matter was whether Mr Sutton had discriminated against Mr McElroy.

1. The onus of proof is on the Applicant to prove the case on the balance of probabilities. There is no need to prove that the Respondent intended to discriminate for the Applicant to prove liability. Purvis v NSW (2003) 217 CLR 92, 142-143.

1. The first component of the test for direct discrimination is the "differential treatment " test. The treatment afforded to the Applicant must be compared with the treatment that would have been afforded to a person who was not thought to be a homosexual.

1. The second component of the test for direct discrimination is "causation". To substantiate his complaint, at least one of the reasons for the Applicant being banned from the hotel must be his homosexuality or presumed homosexuality: AD Act, s 4A.

1. The Applicant did not nominate a person whose treatment could be compared with the treatment he was given. In these circumstances where there is no comparator for the Tribunal to consider, the Tribunal proceeds to look at the reason for the treatment complained of. When there is no actual comparator, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that Mr Sutton treated Mr McElroy less favourably than a hypothetical person who was not homosexual by determining that homosexuality was a reason for that different treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133.

Summary of the Applicant's case

1. The Tribunal understood that the applicant's case was essentially that he had been treated less favourably on the grounds of his presumed homosexuality in the provision of goods and services in that he had been barred from attending the Royal Hotel on the grounds of his presumed homosexuality. The Applicant's assertion was based on 5 main points. They were that:

• other patrons of the hotel had told him that Mr Sutton would use such terms as "backs to the wall" when he would approach the hotel.
• the Respondent did not take action on complaints from the Applicant that he had been abused by other patrons in regard to his presumed homosexuality.
• the Respondent, Mr Sutton, had questioned him about allegations that the Applicant had made an unwanted sexual advance to another male patron in the toilets.
• on the evening of 4 June 2011 the Respondent had said to him that he did not want homosexual poofters in his pub; and
• Miss Bull's evidence was that the Respondent had said to her "I didn't what that poofter cunt in my pub anyway."

The Respondent's Case

1. The Tribunal understood that it was the respondents' case that

• the Second Respondent had no involvement in the management of the Hotel
• the First Respondent had long been aware of the Applicant's presumed homosexuality - but that he had not refused service to him on this basis. He had even asked the Applicant to run the hotel's pool competition;
• the First respondent had never abused the Applicant on the grounds of his homosexuality to other people;
• the only time he had discussed the Applicant's presumed homosexuality with the Applicant was when a complaint had been made by a patron of an unwanted sexual advance by the Applicant - and no action had been taken against the Applicant about this;
• the First Respondent had barred both the Applicant and another patron for fighting for an equal period when the Applicant had complained to him of abuse on the grounds of presumed homosexuality by the other patron; and
• the First Respondent had eventually barred the Applicant as a result of advice he received from police concerning the First Respondent's fears that the Applicant was dealing drugs and spiking drinks in the Hotel.

Evidence

Agreed matters

1. As well as the material in the President's Report, both parties gave evidence during the hearing. It was not in dispute between the parties that Mr Sutton spoke to Mr McElroy on 4 June 2011 in the poker machine room and that nobody else was there at the time and there was a heated argument. Both parties agreed that during that conversation Mr Sutton accused Mr McElroy of dealing in drugs and spiking drinks. Both agreed that Mr Sutton had said if he caught Mr McElroy dealing drugs he would bar him. However the Applicant alleges that Mr Sutton also told him in this conversation that he did not want a homosexual poofter in his hotel. Mr Sutton denies having said this.

Evidence of Ian McElroy

1. Mr McElroy gave evidence that he had long been a resident of Guyra and was a regular attendee at the Royal Hotel. He said he had been subject to comments about his presumed homosexuality both from other patrons and from Mr Sutton, the licensee. Mr McElroy referred to an occasion when he had become involved in a fight with another patron who had referred to him as a "poofter" and that his complaint to the management of the hotel had not been acted upon or recorded in the incident book. Mr McElroy said that this was evidence of a homophobic environment in the hotel.

1. Mr McElroy also alleged that he had been advised by other patrons at the Hotel that when he would approach the Hotel Mr Sutton would say "backs to the wall" by way of reference to Mr McElroy's presumed homosexuality. He said he found this offensive.

1. Mr McElroy stated that on the night of 4 June 2011 he had been in the pokies room and that Mr Sutton had come in and said he wanted to have a discussion with him, at the same time locking the door with Mrs Sutton "keeping guard" outside. Mr McElroy said that there was a heated discussion in which Mr Sutton accused him of dealing in drugs and stating that he didn't want homosexual poofters in his pub. Mr McElroy alleges that he left shortly after feeling humiliated.

1. Mr McElroy then gave evidence that he had returned to the hotel the following afternoon where he was told by the barman, Mr Walls, that Mr Sutton had told Mr Walls not to serve Mr McElroy until Mr Sutton had spoken with Mr McElroy. Mr McElroy said that he told Mr Walls that he was going to the town's other pub, the "bottom pub" and that Damian (Mr Sutton) could ring him there.

1. Mr McElroy said that he had not returned to the hotel and his understanding from talk around town was that he had been barred for life from the hotel as a result of his conversation with Mr Sutton on 4 June 2011 in the pokies room because Mr Sutton had said he did not want homosexual poofters in the hotel. He said he was heartbroken by the circumstances and the fact of his barring.

1. Mr McElroy stated on a number of occasions that Mr Sutton had never caught him dealing drugs in the hotel. He denied having offered Mr Leslie or any other witnesses money to give evidence on his behalf in the matter.

Evidence of Maria Bull.

1. Ms Bull gave evidence that she had signed a statement written by Mr McElroy on her behalf after a discussion with Mr McElroy. She conceded that her statement dated 24 August 2012 was in exactly the same words as Mr Leslie's. The statement attested to her hearing Mr Sutton referring to Mr McElroy as a "homosexual poofter" and using the expression "backs to the wall" when Mr McElroy would approach the hotel.

1. In giving her evidence, Ms Bull also stated that she had worked for Mr Sutton in his shearing gang. She alleged that when they had been in Cunnamulla in February 2012, Mr Sutton had said in reference to Mr McElroy and his barring from the pub "I didn't want that poofter cunt in the pub anyway." She denied that she was giving evidence against Mr Sutton because he had sacked her and that she therefore did not like him. She indicated that she had not included Mr Sutton's "Cunnamulla" statement in her statement written by Mr McElroy because she thought she would have the opportunity to relate that when she gave evidence in the matter.

Evidence of Wayne Leslie

1. Mr Leslie said that he had been a regular at the Royal Hotel since 2007. He said his statement had been prepared by him telling Mr McElroy what he wanted to say and that he had asked Mr McElroy to write out the big words that he was unable to write. His statement was exactly the same as Ms Bull's - claiming that Mr Sutton had regularly rubbished Mr McElroy by calling him a "homosexual poofter" and calling out "backs to the wall, here comes the poofter" when Mr McElroy would approach the hotel. He said that he had barred himself from the hotel for a period of six months from March 2012 and had returned in November 2012. However he also agreed that there had been an incident in which he had had words with a barmaid and that there were allegations that he referred to her as a "fat Scottish slut" but he denied that he had used the word "Scottish".

1. He agreed that he had told Mr Sutton that Mr McElroy had offered him a sum of money to give evidence on Mr McElroy's behalf but that it had been a joke and he knew "it would get back".

15. Evidence of Damian Sutton

1. Damian Sutton said that he had purchased the Royal Hotel together with a business partner Craig Waters in 2007. He denied ever having referred to Mr McElroy as a "homosexual poofter" or as having used the phrase "backs to the wall" when Mr McElroy would approach the hotel. He said that he had first been aware that Mr McElroy was presumed by others to be homosexual in 1991, but that this did not concern him and that he had continued to allow Mr McElroy to drink at his hotel. He confirmed that he had spoken with Mr McElroy on an occasion when a patron had complained to him that Mr McElroy had propositioned the patron in the toilets. He said he had accepted Mr McElroy's account and that Mr McElroy had not been barred from the hotel, nor any action taken. He said that he had spoken with Mr McElroy on three or four occasions about concerns that Mr McElroy was dealing drugs and spiking drinks in the hotel. He said that these concerns had been raised with him by other patrons.

1. He said the Mr McElroy had previously been barred from the hotel for periods of time in relation to fighting. He said that Mr Dundee, the patron who was alleged to have referred to Mr McElroy as a poofter, had received the same barring as Mr McElroy as a result of a fight. He also referred to Mr McElroy as having been barred for biting a staff member.

1. He denied Ms Bull's allegations that he had referred to Mr McElroy as a "homosexual poofter". He also denied Ms Bull's allegations that he had said during a shearing contract in Cunnamulla in February 2012 in relation to Mr McElroy's barring "I didn't want the poofter cunt in my hotel anyway". Mr Sutton said that he had spoken to Mr McElroy on the night of 4 June 2011 in the pokies room after first clearing the room. He told him that he had again received allegations that Mr McElroy was spiking drinks and dealing in drugs and that if he caught him he would be barring him. He denied having referred to Mr McElroy as a "homosexual poofter" in the discussion. He confirmed that the conversation had become heated. He said that after the conversation Mr McElroy had stayed in the hotel for approximately another hour and had then gone home. He said that he had had conversations with the police who had attended the hotel later in the evening about what action he could take in relation to his concerns about Mr McElroy spiking drinks and dealing drugs at the hotel. He said that Mr McElroy took care to carry out these alleged activities out of view of the hotel's Closed Circuit Television Cameras. He indicated that as a result he had further conversations with local police on the following day. He said that he had understood from these conversations that he had an obligation to exclude a patron from the hotel if he thought the patron was dealing in drugs as a result of his obligations under the Liquor Act. He also became concerned that if he did not do so he exposed himself to prosecution. He said that he had advised the barman Mr Walls next day that he was going to bar Mr McElroy and that if Mr McElroy turned up at his usual time he should advise Mr McElroy that he was not to serve him until Mr McElroy had spoken with Mr Sutton. He said that Mr McElroy had not spoken to him since. His evidence was that it was not his intention to bar Mr McElroy for life but a period of three years. He said the proposal to bar Mr McElroy was solely because of his concerns Mr McElroy was dealing drugs and spiking drinks and that his presumed homosexuality played no part in the decision.

1. Mr Sutton said that he had 4 to 6 weekly discussions with staff about their obligations in dealing with patrons. He did not refer specifically either to the Liquor Act or anti-discrimination law obligations in relation to goods and services.

Evidence of Senior Constable Matthew Robinson

1. Senior Constable Robinson said that he had been stationed in Guyra for approximately 3 years. He said that on 5th June 2011 he had passed on information to Mr Sutton about his responsibilities under the Liquor Act after discussion with a New England local area command licensing sergeant and a western regions senior sergeant concerning Mr Sutton's suspicions that Mr McElroy was dealing in drugs and spiking drinks. He also confirmed he had contacted the Anti-Discrimination Board in relation to Mr McElroy's complaint to relate the concerns raised by Mr Sutton. He confirmed that he had told Mr Sutton that there could be adverse consequences for Mr Sutton if he did not act to deal with concerns about Mr McElroy spiking drinks or dealing drugs on the premises.

17. Evidence of Craig Waters

1. Mr Waters gave evidence that he was Mr Sutton's partner in the Royal Hotel business but that he had no part in the management of the Hotel. He had not heard words such as "homosexual poofter" in reference to Mr McElroy and had not heard Mr McElroy being referred to in this way by Mr Sutton or other patrons. He denied having heard comments of a racist nature in the hotel. He did not know whether or not Mr McElroy had been barred from the hotel.

18. Evidence of Mr Walls

1. Mr Walls gave evidence that he had worked as a barman at the Hotel, part-time, for approximately 20 years. He said that he'd known Mr McElroy all of his life and that he did not recall episodes in which Mr McElroy said he had been harassed by other patrons because they considered him homosexual. As he was stationed at the bar he had not seen drink spiking or drug taking or dealing taking place in the hotel. He had not heard the discussion between Mr McElroy or Mr Sutton on the night 4 June 2011 but said that he had been told on that evening by Mr Sutton that he intended to bar Mr McElroy because of the concerns about drug dealing and that he was not to serve Mr McElroy when he came in at his usual time the following day.

19. Findings on the evidence

1. The Tribunal finds that Mr McElroy's evidence was not consistently reliable. He did not deny that he had been spiking drinks or dealing in drugs at the hotel. Rather he consistently pressed the point that he had not been caught doing so.

1. The Tribunal did not consider that it could rely on Miss Bull's evidence for a number of reasons. There was evidence of enmity between Ms Bull and Mr Sutton in relation to her work on a shearing contract. Further Miss Bull had signed a statement prepared for her by Mr McElroy which was exactly the same as Mr Leslie's statement and that of other witnesses not called to give evidence. The statement did not include other significant matters of which she says she was aware. These factors made it difficult for the Tribunal to rely upon Ms Bull's approach to evidence giving.

1. The Tribunal found the evidence of Mr Leslie unreliable. The Tribunal had difficulty relying on the written statement of Mr Leslie which had been prepared in identical terms to Miss Bull's (and other uncalled witnesses) even though Mr Leslie said that they were his precise words. Further, Mr Leslie's statement that he had been joking when he had told Mr Sutton that he had been offered money by Mr McElroy to give evidence for Mr McElroy, revealed a lack of understanding about the importance of credibility and telling the truth about matters of legal significance such as evidence giving and accepting a bribe.

1. The Tribunal found Senior Constable Robinson to be a witness of truth and understood that he had given Mr Sutton advice about Mr Sutton's obligations under the Liquor Act in relation to hotel patrons thought to be dealing in drugs.

1. The Tribunal was concerned by Mr Waters' apparent lack of understanding of his obligations either in relation to the Anti-Discrimination Act or the Liquor Act in relation to activities in the hotel in which he was a partner. At the same time the Tribunal accepts that he did not play a part in Mr McElroy's barring from the hotel.

1. The Tribunal notes that Mr Sutton acknowledges that he had spoken to the Applicant about an alleged unwelcome sexual advance to a male patron in the toilets. The Tribunal notes however that no action was taken against the Applicant other than to raise the matter with him.

1. The Tribunal understands that in response to the Applicant's contention that no action had been taken by the Respondent concerning his complaint that he had been abused by another patron about his presumed homosexuality, leading to a fight between the two, that the Respondent had barred both patrons - if only briefly. The Tribunal finds that Mr Sutton did have conversations with Mr McElroy concerning allegations that he was dealing drugs and spiking drinks.

1. The Tribunal finds that Mr Sutton did decide to bar Mr McElroy from the hotel because of his concerns about his eventual understanding of his obligations under the Liquor Act. The Tribunal accepts that he was not aware that he could take action without proof and it was not until he had conversations with local police that he decided he should take action in relation to allegations about the Applicant's drug dealing and drink spiking. The Tribunal cannot be satisfied on the balance of probabilities that the Respondent did tell the Applicant on the night of 4 June 2011 that he did not want homosexual poofters in his pub.

1. The Tribunal is not satisfied that any presumption about the Applicant's presumed homosexuality was one of the reasons for the barring of the Applicant by the first Respondent.

Conclusion

1. The Applicant bears the onus of establishing his case on the balance of probabilities. The Applicant did not assert there was any comparator patron who was not thought to be homosexual and who was thought to be dealing drugs and spiking drinks who was treated differently to him. He was unable to persuade the Tribunal through his own evidence or that of his witnesses that presumed homosexuality was at least one of the reasons he was barred by the Respondent.

Order

1.   The complaint is dismissed.

2.   No order as to costs.

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Decision last updated: 16 January 2013