McKellar v Bourke Bowling Club Ltd

[2015] NSWCATAD 161

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	McKellar v Bourke Bowling Club Ltd [2015] NSWCATAD 161
Hearing dates:	18 -19 March 2015
Decision date:	05 August 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Conley, Senior Member J Goodman-Delahunty, General Member I O’Connell, General Member
Decision:	The complaints are dismissed
Catchwords:	Discrimination – Race – Registered Club
Legislation Cited:	Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013
Cases Cited:	Qantas Airways v Gama [2008] FCAFC 69; Burns v Laws (EOD) [2008] NSWADTAP 32; Chand v Rail Corporation of NSW (No2) [2009] NSWADTAP 27; Purvis v State of New South Wales [2003] HCA 62 ; Shamoon c 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; Edwards v Bourke Bowling Club Limited [2000] NSWADT 31; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR
Category:	Principal judgment
Parties:	Clancy McKellar (Applicant) Bourke Bowling Club Ltd (Respondent)
Representation:	Counsel: J Dalzell (Respondent) Solicitors: Western NSW Community Legal Centre (Applicant) Booth Brown Legal (Respondent)
File Number(s):	131040

reasons for decision

Background

1. Clancy McKellar (the Applicant) is an Aboriginal man. He is married to Loretta McKellar who is an Aboriginal woman. They were both long-term members of the Bourke Bowling Club Ltd (the Respondent). The Respondent is a licensed registered Club located in Bourke, New South Wales. At the time of the incidents the subject of this complaint they lived in North Bourke which is located outside of the main township of Bourke across the Darling River.

2. Clancy McKellar complains that the Respondent directly discriminated against him on the grounds of his race in respect of his treatment in relation to incidents occurring on or about January 2011, May 2011 and 9 July 2011.

The complaints

3. Clancy McKellar made a complaint to the Anti-Discrimination Board (the ADB) that the Respondent directly discriminated against him on the grounds of his race, which is Aboriginal. He alleges firstly that on or about January 2011 he was removed from the Respondent Club by it’s employees on the instructions of a Police Officer. He claims that this was done knowing that he had not breached the rules of the Respondent or any other laws.

4. He claims that he was again subject to discrimination on the grounds of his race, in respect of events occurring in May 2011. He claims that on about 21 May 2011 he was subject to conduct amounting to an assault by employees of the Respondent Club and also the boyfriend of a member of the Respondent’s Board of Directors (the Board) on the basis of his race. In relation to this incident, he was then subject to disciplinary proceedings with penalties imposed upon him as His membership was suspended following the incident on 21 May 2011 until 27 June 2011. He claims that this was done by the Respondent, on the ground of his race. He claims that the Respondent is vicariously liable for an assault on him on 21 May 2011.

5. He claims he was the subject of direct discrimination on the grounds of his race in relation to his treatment in respect of an incident occurring on 9 July 2011. He claims he was required to leave the premises on 9 July 2011 when he was neither drunk nor disorderly and his membership was suspended for a period of 12 months.

The Procedure

6. The President of the ADB referred the complaints to the former Administrative Decisions Tribunal (the ADT) . On 1 January 2014, the ADT was abolished and the jurisdiction to determine complaints under the Anti-Discrimination Act (the ADA) 1977 was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal, Civil and Administrative Tribunal Act 2013, Schedule 3, cl 3(1). The matter was heard on 18 and 19 March 2015. The Tribunal reserved its decision. In accordance with Cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013, this application is a "part heard" proceedings.

7. Both Clancy McKellar and Loretta McKellar attended the Club on 21 May and 9 July and were together involved in the incidents the subject of this complaint. The both separately filed complaints of discrimination to the ADB arising out of those events. The President referred both their complaints to the former ADT. At the first case conference for this matter the Tribunal, directed that both matters be heard together as the evidence was common to both matters.

8. At the hearing of this complaint affidavits of evidence were relied upon by the Applicant and the Respondent, which were adopted and admitted into evidence. Oral evidence was given by the Applicant's and Respondent's witnesses and documentary evidence also relied upon.

9. The Tribunal notes that in written statements and oral evidence one of the Respondent’s staff members was variously referred to as Min Cole, Melinda Cole and also Min Herring. In the Incident Log Book she refers to herself as Melinda Cole. The Tribunal will therefore refer to her to as Ms Cole.

The Applicant’s Evidence

Clancy McKellar

10. Clancy McKellar gave evidence that he is an Aboriginal man. He is married to Loretta McKellar. They lived at North Bourke at the time of the incidents the subject of this complaint which is located outside the township of Bourke across the Darling River some distance from the township. Clancy McKellar had been a member of the Club since about 2000. He attended the Club generally on weekends and his usual practice when he went to the Club was that he and his wife would drive into town and leave their car at their daughter’s home and walk to the Club. They would then catch a courtesy bus operated by the Club to get home.

11. He claimed that or about January 2011, he attended the Club. He claimed that on that occasion, Sergeant Williams a Police Officer, instructed Frank Owen a staff barman not to serve him with alcohol and he was “evicted” from the Club’s premises. He claimed that he was neither drunk, nor disorderly. He said that Frank Owen, had told him he had to leave the Club and Sergeant Williams subsequently told him that if he was served another beer the Club would be fined $10,000.00.

12. He claimed that he was issued with a fine for failure to leave premises on this occasion. The matter came before the Bourke Local Court and the Court “dismissed the charges”, but he did not produce any of documentation in relation to this.

13. The second incident the subject of this complaint, occurred on or about 21 May 2011. Clancy McKellar claimed that he attended the Club on the evening of 21 May 2011. When he and his wife were leaving the Club’s premises, Brett Barker who was a Club member, started a “verbal fight” with him which moved outside onto the footpath. He claims Brett Barker was a friend to Amanda Smith, (also known as Gibbs) who was a Director of the Club’s Board of Directors (the Board) at the time. He claimed that Brett Barker was about 15 or 20 meters away from him and had to be restrained from attacking him by Amanda Smith. He over-heard Brett Barker say words to the effect, “Let me go, let me go, I’ll kick his black cunt in”. His evidence was that Amanda Smith attempted to restrain Brett Barker. He claims that at no time during the night had he spoken to Brett Barker prior to the incident.

14. He agreed that there had been an announcement over the public address system advising of the departure of the last bus to North Bourke and that Jason Carroll had spoken to him about the bus departure. He claimed that the last bus to Bourke was parked outside the Club when they went outside and it was this bus which took them home to North Bourke. When asked, he would not accept that the last North Bourke bus had already departed by the time he went to catch it. He conceded that not all buses went to North Bourke, but denied that he and his wife were taken to North Bourke as a favour. He denied using any foul language towards Club staff members Ms Cole or Jason Carroll.

15. He claims that he received a letter from the Respondent Club the following day, advising of suspension of his Club membership. He also received a letter dated 27 June 2011 from Paul Sills, who was the Secretary Manager of the Club. A copy of the letter of Mr Sills was provided to the Tribunal. Mr Sills wrote to advise him that at the monthly meeting of the Board, the matter of his behaviour in relation to the incident on the evening of 21 May 2011 was discussed. He was observed to conduct himself “in an offensive manner, being abusive towards members and general poor behaviour.” He wrote that the “Board considers conduct of this nature unbecoming of a member as defined in the relevant Acts”. He went on to write that, the “Board suggests you give consideration to your conduct when on licensed premises and particularly when visiting the Bourke Bowling Club”. In summary, he was advised that “Consequently the Board considered the circumstances and resolved to only suspend you until the meeting. You are welcome to again use the Club”.

16. Clancy McKellar claimed that Amanda Smith was present at the Board meeting when it considered the issue of his behaviour on the night of 21 May 2011. He explained to the Board Directors what had happened and told them that Amanda Smith had been holding Brett Barker trying to stop him, however she said she could not recall anything. He claims that the Board made a decision to suspend both himself and his wife, Loretta.

17. He told the Tribunal that if someone was removed from the Club for unacceptable behaviour, the normal procedure would be that they would have their membership suspended until the next meeting of the Club Board. He agreed that they would receive a letter notifying of them of the allegations and advising them that they could appear before the Board to defend those allegations. At the Board meeting the Board would then consider the matter and make a decision about what if any penalty to impose.

18. The third incident that is the subject of this complaint occurred on 9 July 2011. Clancy and Loretta McKellar both went to the Club on the evening of 9 July 2011. He claims he was seated in the poker machine area all evening and did not go to the bar, nor buy any drinks himself. He claims that Loretta McKellar purchased one alcoholic drink for him all evening.

19. He claimed that about 10:30 pm he and Loretta McKellar were on their way out of the Club when Loretta McKellar overheard Ms Cole asking two Police Officers to eject him from the Club, because he had been refused service at the Club’s bar. He claims that he had not been to the bar all evening. He also claims that despite the fact that they were already on their way out of the Club, the Police forcibly physically removed both himself and Loretta McKellar from the premise and took them to the Club bus. He was then advised his Club membership was suspended.

20. He claims that he was subsequently issued with a Penalty Notice by the NSW Police with a fine of $550.00 for “failure to leave premises”. He opted to have the matter heard in Court and claims the Court dismissed the charges in his absence.

21. He also received a “Notice of Disciplinary Charge and Hearing”. That Notice advised him that it was alleged that he engaged in unacceptable behaviour at the Club on 9 July 2011. He was advised that his Club membership had been suspended until the next board meeting. He was invited to attend the hearing for the purpose of answering the charge, or he could answer the charge in writing. He was notified that if the Board determined that the charges had been proved, the Board had the power to suspend his membership for such a period as it considered fit, or expel him from membership of the Club. He was advised that if he failed to attend the charges would be heard and determined by the Board on the evidence before it, notwithstanding his absence.

22. A disciplinary meeting was held on 1 August 2011 at the Club and both he and Loretta McKellar attended. They requested copies of the CCTV footage of 9 July 2011, in order to establish that they did not engage in unacceptable behaviour, however they were not provided with the footage. The Board made a decision to suspend his membership of the Club for 12 months.

23. He denied he was refused service at the bar, claiming he never went to the bar that night. He also denied he was asked to leave. His evidence was that he had decided to go home because he had a headache. He claimed that he was waiting for his wife when Ms Cole asked him where she was and then two Police Officers both grabbed him and took him to the foyer. He told them he was waiting for the bus. He denied he swore at Jason Carroll, or used “foul language”, but said that he told Jason Carroll that he should not be working at the Club because he was selling drugs. He denied that the Police told him he was not sober. He also denied that Sergeant Neaves told him to stop yelling, or asked him to leave.

24. In his written statement he claimed that there was an incident in about April 2011 when a Club member Shane Carroll fell over at the Club due to drunkenness, and he also broke his drinking glass during a fancy dress ball night. He claimed that Jason Carroll has a tendency to fall over when he gets drunk at the Club but has never been suspended. No further details or other evidence was produced in relation to this allegation.

Loretta McKellar

25. Loretta McKellar gave evidence that she is an Aboriginal woman and is married to Clancy McKellar. On about 21 May 2011, she and her husband were leaving the club premises at about 10:50 pm when someone she knew to be Brett Barker made accusations against Clancy McKellar. She claims that Brett Barker was a boyfriend of Amanda Smith who was a Director of the Board of the Club at the time. During the fight, Jason Carroll, a staff member of the Club, started “interfering with the fight”. She claims that Jason Carroll and Brett Barker made accusations against Clancy McKellar. She denied that they had missed the last bus to North Bourke. Her evidence was that Amanda Smith grabbed Brett Barker. She said that she told Ms Cole to call the Police and denied verbally abusing her.

26. Loretta McKellar’s evidence was that both she and Clancy McKellar went to the Club on the evening of 9 July 2011. Clancy was seated in the poker machines area all night. All their money was in her possession and she only purchased one alcoholic drink for him all evening.

27. She claimed that when it got close to 10:30 pm, they were preparing to leave. On their way out, she heard Ms Cole speak to two Police Officers about Clancy. She overheard her say that he had been refused service at the bar and had refused to leave the Club. She told the Police Officers and Ms Cole that he was not drunk and only had one alcoholic drink all night. She also told them he had not gone to the bar, because she had all their money. She then offered to have her husband breathalysed, however the Police Officers declined to breathalyse him. She claims that she went to the toilet and told him what had happened. On their way out, the Police Officers proceeded to physically remove him from the premise and escorted them to the bus.

28. The following day, 10 July 2011, she was issued with a letter of suspension from the Club for misbehaviour. A disciplinary meeting was held on 1 August 2011 at the Club. Both she and Clancy McKellar attended. She claims that they requested the Board of Directors provide them with the CCTV footage of the incident on the night, however the Board declined to do so.

Respondent’s Evidence

Jason Carroll

29. Jason Carroll gave evidence that he was employed by the Respondent Club as a casual barman at the time of the incidents the subject of these complaints.

30. He gave evidence that he had no recollection of any incident as alleged occurring on or about January 2011. He conducted a search of the Club Incident Log Book and was unable to locate any incidents or reports in the Club’s records in respect of any such incident.

31. In relation to the alleged events of 22 May 2011, Jason Carroll provided copies of extracts of incident logs and report summaries from the Incident Log Book. He told the Tribunal that the Club runs a courtesy bus for members to take them home from the Club. There is a courtesy bus which takes members to North Bourke and a more frequent bus service which takes members to the main township of Bourke. On the night of 21 May 2011 the last bus to North Bourke was at 11pm. Shortly before 11pm he made an announcement over the Club public address system that the last bus to North Bourke would be leaving in five minutes. He made the announcement three times. He was aware that the McKellars lived at North Bourke, so he went to the smoking/pokies area and told Clancy McKellar that the last bus would be leaving in five minutes. He then returned to the bar.

32. At approximately 12:05 am, he was called to the front of the Club by Ms Cole. He was told that both of the McKellars were causing trouble, because they wanted the “town bus” to take them to North Bourke, despite the fact that the last bus to North Bourke had departed an hour earlier.

33. He then saw Amanda Smith sitting on a metal stool near the gate and saw an argument taking place between Clancy McKellar, Brett Barker and Amanda Smith. He says that he stopped Brett Barker from “downing Clancy”. He also intervened and prevented Clancy from “donging” Brett Barker.

34. His evidence was that both of the McKellars abused Ms Cole and himself about the last bus to North Bourke and were using “foul” language. He claims that in order to prevent further possible harm between Clancy McKellar and Brett Barker, the McKellars were taken to North Bourke on the Club town bus as a special favour. He claimed that the language and abuse from the McKellars “was disgraceful”.

35. Annexed to his statement is a copy of the Incident Log of 21 May 2011. That document notes that there was an incident reported by Ms Cole. In Part A of the Incident Log she records that “Kanga (Loretta) & Clancy McKellar on last bus (Town Limit) asking & abusing myself for a lift to North Bourke after the last bus to North Bourke had been announced (3) times over the P.A. system”

36. In Part B Incident Report she notes that she and Jason Carroll were called “all the names under the sun”, “then Brett Barker threatened to bash Clancy McKellar which kept myself & Jason Carroll at the front of the gate until 12:50am arguing the point over the last bus (Last to Northy) being announced at 11.30pm”. She also recorded that “the abuse was disgraceful & I ended up asking Bevine if he would please take the McKellars to Northy so nothing would happen with Brett Barker making threats to Clancy. All need to be barred.”

37. A copy of the minutes of the Club Board were provided. It was noted an incident occurred on 22 May 2011 at 12:05 am. Both Applicant’s had been suspended until the Board meeting. It was noted that they had got onto the Club bus and began asking the bus driver for a lift to North Bourke and abusing him. It was also noted that the last bus to North Bourke had been announced three times over the PA system earlier in the evening. When the bus returned Clancy and Loretta to the Club, they abused two staff members, swearing at them and calling them all the names under the sun until 12:50 am. They argued the point about the last bus being called at 11.30pm. Their Club history was recorded. They were suspended until the Board meeting with no further penalty imposed.

38. Also recorded on that date was an incident involving Brett Barker in respect of an incident on 22 May 2011 at 12:05 am. It was noted that he was suspended until the Board meeting. It was recorded that during an altercation, Brett Barker made threats towards Clancy McKellar. He was also suspended until the Board meeting.

29. Jason Carroll gave evidence that on 9 July 2011 at about 10:30 pm, he made three “calls” over the public address system announcing that the North Bourke bus would be leaving in about five minutes.

30. At approximately 10:50 pm, Ms Cole called him to come to the foyer. When he got to the foyer, he saw both of the McKellars arguing with Ms Cole. They were both noisy, swearing and Clancy McKellar appeared from his movements, manner of speech and loud and argumentative manner to be intoxicated. He saw Police Sergeant Neaves and another officer. Sergeant Neaves told Clancy McKellar to stop, or he would get a fine. The Police then escorted them both outside the Club gate.

31. Jason Carroll told the Tribunal that during the evening a female had been buying alcoholic drinks for Clancy McKellar and he had told her that Clancy had had enough to drink. He also said that Loretta McKellar was coming to the bar and she was buying him “schooners”. His evidence was that he has training in Responsible Service of Alcohol and it is part of his job to make a decision about whether some-one has had too much to drink and to cease serving them and also to ask them to leave.

Sergeant Christopher Neaves

42. Sergeant Christopher Neaves gave evidence. He is a Police Officer formerly at Bourke Police Station, which was part of the Darling River Local Area Command. He said that he knew Clancy McKellar because he had dealings with him following the theft of Clancy McKellar’s car and he had also seen him at Court where Clancy was a support person.

43. Sergeant Neaves said that he attended the Club on Saturday, 9 July 2011 at about 10:45 pm with Senior Constable Ellis. They were wearing Police uniform with name badges. He conducted a walk through of the Club and Senior Constable Ellis signed the Incident Log Book. In the reception area he saw Ms Cole talking to a woman. He was subsequently advised that she was Loretta McKellar. He over-heard her being told that Clancy McKellar had been refused service, because he was intoxicated and had to leave. He also heard her being told that the last bus to North Bourke was leaving soon.

44. It was the evidence of Sergeant Neaves, that when Clancy McKellar arrived, he immediately “fired up” and asked why he had to leave. He was told that he was observed to have been too intoxicated and had been refused service and had to leave. He started arguing and saying that he did not buy the drinks. Ms Cole repeated that it did not matter who was buying the drinks. Sergeant Neaves said that he advised him to stop yelling and swearing. He also told him that if the staff thought he was intoxicated and they had asked him to leave, it was time to go. He told him to come back tomorrow when he was sober and talk to the Board then.

45. Sergeant Neaves told the Tribunal that Clancy McKellar continued to argue and swear. He told him that if he failed to go, it would be an offence with a $550.00 fine for failing to leave the Club. He continued to argue and was again told that it was an offence for failing to quit the Club. Sergeant Neaves then told Clancy McKellar that he would count to ten and if he did not leave, he would have to pick him up and carry him out. He counted to ten, but he continued to argue and swear and made no attempt to leave. Clancy McKellar then called Ms Cole a “drug addict cunt” and said, I’ll have your licence and make your life hell”. He then said to Clancy McKellar, “That’s it” and he took hold of one of his arms and Senior Constable Ellis took the other and they lifted him up and walked him to the gate where they saw the bus. They told him to get on the bus and go home. He continued to swear and told Jason Carroll he was a no good drug dealer and his wife was “a cunt”. Both McKellars then got on the bus.

46. He instructed Jason Carroll and Ms Cole to make a record in the Incident book. They were also instructed to ask the Club Manager to save the CCTV footage. He wrote up an infringement notice for, “Fail to leave Club Premises when Required”, with a penalty of $550.00. When he went to collect the footage, he discovered that it was no longer available. He also gave evidence that in relation to the Court proceedings, he made enquiries of Ms Cole and discovered she was no longer an employee of the Club, no longer living in Bourke and he was unable to locate a current address or phone number.

Senior Constable Katherine Ellis

47. Senior Constable Katherine Ellis gave evidence. She is a Police Officer at the Bourke Police Station. On Saturday 9 July 2011, she attended the Bourke Bowling Club with Sergeant Neaves to conduct a licensed premise inspection. During the inspection, she noticed security officer Ms Cole speaking to Loretta McKellar. She overheard Ms Cole tell Loretta that Clancy McKellar had been refused service and had to leave. She was also advised that the last bus to North Bourke was leaving soon. Ms Cole told Loretta McKellar that a staff member had seen that Clancy McKellar was too intoxicated. Shortly thereafter, she saw him and she said that he was moderately affected by “intoxicating liquor”. She said that he was swaying, loud, obnoxious and his speech was slurred. She said that he yelled out in a high voice, “Why do I have to leave?” and Ms Cole told him that he had been seen by staff to be too intoxicated and had been refused service and he had to leave. He then refused to leave the licensed premise, saying that he did not buy the drink. He became agitated towards the security officer Ms Cole and argumentative. He was very loud and could be heard by other patrons inside the premise.

48. Ms Cole repeated that he had to leave. Sergeant Neaves then told him to stop yelling and swearing and told him that if the staff thought he was intoxicated then he had to leave. He was told to come back the next day when he was sober to talk to the Board. Senior Constable Ellis claimed that he continued to be abusive towards Ms Cole, Sergeant Neaves and herself. Sergeant Neaves told him that if he did not leave it would be an offence and he would receive a $550.00 fine if he failed to leave when directed. He was told that the bus was outside waiting to go and it was time to leave.

49. She said that Sergeant Neaves told him that he would count to ten and he needed to leave, or he would pick him up and carry him out. Sergeant Neaves counted to ten and the Clancy McKellar continued to swear and be argumentative and had no intention leaving the licensed premise. He then told Ms Cole, “You’re a drug addict, I’ll have your licence and make your life hell”.

50. She said that Sergeant Neaves then said, “That’s it”, and he took hold of one of Clancy McKellar’s arms and she took hold of the other. They lifted him and walked him to the front entrance of the club. He continued to swear and yell abuse. His wife followed them out to the gate. When they got to the gate, they released him. He was told to get on the bus and go home. He then yelled out to Jason Carroll, “You’re a no good drug dealer and so’s your wife ya cunt”. Both McKellars then got onto the bus. She said that she and Sergeant Neaves continued with their duties and then left the Club.

Sergeant Michael Sullivan

51. Sergeant Michael Sullivan gave evidence. He was the Licensing Sergeant in the Lachlan Darling River Local Area Command from 2007 to 2012 and was the Licensing Sergeant for Bourke Local Area at the time of these events. He told the Tribunal that the Club has a liquor licence under the Liquor Act of 2007 and is obliged to comply with all the requirements of it’s licence and the requirements under the Act including the service and the removal of Club patrons.

52. He told the Tribunal that the Club is legally required to comply with the requirements under the Liquor Act and the Regulated Clubs Act. Under Section 77 of the Liquor Act, an authorised person (including Club employees) have the power to exclude a patron. Under Section 73 of that Act, it is an offence to have a person on licensed premises who is intoxicated or argumentative. He told the Tribunal that he did not believe it was his job to do the Club’s job, so he would tell the Manager of the Club if he observed someone who should be removed or fined.

53. He also told the Tribunal that in addition to these mandatory legal requirements, across the Bourke area there was what is known as the “Bourke Liquor Accord”. This was a voluntary association which is run by local licensing organisations including clubs, pubs, restaurants and anyone with a liquor licence. In addition interested organisations such as the Police, Council and health organisations are also involved. He told the Tribunal that objects of the Accord are to limit alcohol related violence and behaviours. He said that the Police do not have voting rights on the Accord. Voting rights on the Liquor Accord are for members of the liquor associations only. The Liquor Accord applies across the Bourke area. The Accord, dated July 2008, was the applicable at the time of these events.

RELEVANT LEGISLATION

s. 4 race includes colour, nationality, descent and ethnic, ethno-religious or national origin.

s. 7 of the ADA provides:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person’s race, or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) the perpetrator treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race…

S. 20A (2) of the ADA provides :

It unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of race:

(a) by denying the person access, or limiting the person’s access, to any benefit provided by the registered club.,

(b) by depriving the person of membership or varying the terms of the person’s membership, or

(c) by subjecting the person to any other detriment.

…

Section 53 of the ADA provides:

(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.

4A Act done because of unlawful discrimination and for other reasons

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),then, for the purposes of this Act, the act is taken to be done for that reason.

ONUS AND BURDEN OF PROOF

54. The applicant bears the burden of proof in respect of this claim. In Qantas Airways v Gama [2008] FCAFC 69 [at 55] Branson J discussed the standard of proof, referring to what is known as the “Briginshaw” standard. She indicated that “Briginshaw” was about the quality of the evidence not the standard of proof. She stated, “The correct approach to the standard of proof in civil proceedings in a federal court is that for which s140 of the Evidence Act provides. It is an approach which recognises … that the strength of evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved – and, I would add, the circumstances in which it is sought to be proved.”

55. In Burns v Laws (EOD) [2008] NSWADTAP 32 the Tribunal dealt with this issue in relation to discrimination claims. It was noted that “Briginshaw is a case about the standard of evidence required to meet the burden of proof.”

56. The Tribunal further considered the “Briginshaw standard” in Chand v Rail Corporation of NSW (No2) [2009] NSWADTAP 27. The Appeal Panel noted section 140 of the Evidence Act 1995:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

THE DECISION

The January 2011 Incident

Factual Findings

57. The Tribunal heard evidence from Clancy McKellar and the Respondent’s witness Jason Carroll and Sergeant Williams about the procedures when there is unacceptable behaviour at the Club by a member. The Tribunal therefore finds that the procedure for dealing with unacceptable behaviour at the Club is that the incident is recorded in the Incident Log Book with a record of the incident and report provided. The members’ Club membership is then suspended until the next meeting of the Club Board of Directors. The member is notified of the allegations and given the opportunity to defend themselves against the allegations at the Board meeting. If the Board determines that the facts have been proven, then they decide what if any further penalty to impose.

58. In relation to the incident alleged to have occurred on or about January 2011, the Applicant claimed that he was told to leave the club. He also claims that he received a fine for failure to leave. It was claimed that Sergeant Williams was involved in the incident. The Respondent’s evidence given by Jason Carroll is that he searched the Incident Log Book and found no record of the incident. Clancy McKellar did not himself provide any documentary evidence in the form of an extract from the Incident Log Book, nor any other record which might establish that the incident occurred. Sergeant Williams was called to give evidence at the hearing. He did not give any evidence about this event.

59. The Tribunal finds that if the incident did occur as alleged, then there should have been some record of the incident in the Log Book, particularly as Clancy McKellar claimed that he had been fined for failure to leave the premise. Sergeant Williams may also have kept notes of the incident. There is simply no evidence to support Clancy McKellar’s version of events. The Tribunal is unable to find that the incident the subject of this complaint occurred on or about January 2011 as alleged. This part of the complaint is not proven.

May 2011 Incident

Factual Findings

60. Both Clancy and Loretta McKellar attended the Club on the evening of 21 May 2011. The Club runs a courtesy bus to take Club members home from the Club. The Club has a bus service which drops members home in the local township area and also a service to the North Bourke area. The buses to the local township operate more frequently. The bus service to North Bourke, which is a much greater distance and outside the local township area is limited. There had at some point, prior to these events been a change in the time-table for the last bus to North Bourke. It was common evidence that there was an announcement over the public address system on the night that the last bus to North Bourke was leaving. There was however a significant dispute about the time of the announcement and the departure time of the last bus to north Bourke. The McKellars claimed that on the evening of the 21 May 2011, they went outside in time to catch the last courtesy bus to North Bourke. The bus was still parked outside the Club at that time and this bus took them home.

61. When they went outside the Club, Brett Barker who was also a Club member, was outside the Club. He was verbally abusive and physically aggressive towards the Clancy McKellar, such that it was necessary for others to intervene to stop him physically assaulting him. The Tribunal accepts and it was undisputed, that Brett Barker threatened Clancy McKellar verbally and physically.

62. It was alleged by Clancy McKellar that he was subject to conduct amounting an assault by Club staff and the boyfriend of a member of the Club’s Board of Directors. It is alleged Brett Barker was in a relationship with Amanda Smith. The common evidence is that Amanda Smith attempted to restrain Brett Barker and get him to stop his behaviours towards the Clancy McKellar.

63. The evidence does not support a finding that Amanda Smith or Jason Carroll either verbally or physically threatened, Clancy McKellar or made any inappropriate comments towards him. The Tribunal does not accept that the Club is vicariously liable for the actions of Brett Barker either because he was a Club member, or because he was in a relationship with a member of the Board of Directors. The evidence indicates that his membership was also suspended because of his behaviour that night.

64. The evidence of Jason Carroll was that the McKellars arrived outside the Club well after the last bus for North Bourke had left and tried to get the driver of the town bus to take them to North Bourke. Consistent with the evidence of Jason Carroll, the Log Incident Book records an entry that there was significant argument between both McKellars and Club staff members, Jason Carroll, Ms Cole and the bus driver about the departure time of the last bus to North Bourke. The Incident Log Book entries support Jason Carroll’s claim that both McKellars were using inappropriate language towards Club staff. It was also recorded consistent with Jason Carroll’s evidence that the Club bus driver was asked to take them home to North Bourke as a special favour. The entry recorded that this was done because of concerns about Brett Barker’s aggression towards Clancy McKellar.

65. The Tribunal therefore does not accept either Clancy or Loretta McKellar’s version of events. The Tribunal finds that they were both verbally abusive and argumentative towards Club staff because they wanted to the town bus to take them to North Bourke after the last bus to North Bourke had departed.

66. The Tribunal has found that the usual procedure when Club members are asked to leave Club premises for unacceptable behaviour is that they are sent a Notice suspending their membership. The are notified that the Club Board will consider the matter and they may appear before the Board to defend themselves. This incident was dealt with at the next Board meeting. The correspondence from Mr Sills indicates that while the Club Board considered the behaviour of Clancy McKellar to be unacceptable, the Board determined to impose no further penalty. The Tribunal therefore finds that his membership was suspended until the Board considered his behaviour and that no further sanctions were imposed.

Complaint of race discrimination

67. It is not in dispute that Clancy McKellar is Aboriginal which is a race as defined in section 4 of the ADA.

Detriment

68. The Respondent is a registered club. The Applicant must establish that the complaint falls within the scope of s 20A in order to constitute a breach of the ADA. S.20A includes that it is unlawful for a registered club to discriminate against a person who is a member on the ground of race, by denying or limiting the persons access to any benefit provided by the club, by depriving the person of membership or varying the terms of the persons membership, or by subjecting the person to any other detriment.

69. The Tribunal finds that the suspension of Club membership until such time as the Board convened to hear the matter constitutes a “detriment” and is within the scope of s.20A. It may also constitute limiting his access to a benefit provided by the Club being use and enjoyment of the Club’s facilities. The Tribunal finds that the incident falls within the scope of s.20A.

Less Favourable Treatment

70. In order to establish a complaint of direct discrimination there are two further elements which must be proven. The first element is that there was less favourable or "differential treatment" compared to a person who is not of the Applicant’s race in circumstances that are the same or not materially different. This involves a comparison. The second element is that the differential treatment was on the ground of race and is referred to “causation”. Therefore, in relation to this complaint of direct discrimination, the Applicant must establish both differential treatment and causation in relation to the Respondent's conduct.

70. In respect of the first element, which is the comparison, the Tribunal must consider whether the Applicant was treated less favourably, than a person who was not Aboriginal would have been treated in circumstances that are the same, or not materially different. The meaning of the phrase, “in circumstances that are the same, or not materially different”, was considered by the High Court in Purvis v Sate of New South Wales [2003] HCA 62 (Purvis). The Court stated that “circumstances” referred to in the federal equivalent to section 49B “…are all of the objective features which surround the actual or intended treatment..." The Court went on to state that, “ Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or not materially different.”

71. In relation to this complaint, the Applicant provided no evidence of a comparator and it was submitted that the Tribunal should have regard to a hypothetical comparator. When there is no actual comparator the Tribunal can consider a hypothetical comparator. In this situation however, the issues of “differential treatment” and “causation” “merge”, because the Tribunal can only reach the conclusion that the Respondent treated the Applicant less favourably than a hypothetical person not of the Applicant’s race, by determining that the Applicant’s race was the reason for the treatment. See Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133 (Dutt). The Tribunal must therefore consider the issue of causation.

Was the treatment on the ground of race?

73. In the matter of Purvis, the High Court found that in order to establish causation, it must established that “a real, genuine or true reason” for the treatment was the Applicant’s disability. The Applicant must therefore establish that his race, either alone or in combination with other reasons, was the true basis for the treatment.

74. There was no direct evidence that the decision to suspend the membership of Clancy McKellar was on the grounds of his race. The issue of what happens when there is no direct evidence has been discussed in decisions including Dutt v Central Coast Area Health Service (2002) NSWADT 133 (Dutt), Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 (Edwards) and Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. Where there is no direct evidence, an applicant must rely upon inference.

75. In respect of drawing inferences to prove less favourable treatment, in Dutt the Tribunal stated that the authorities identify the following considerations: :

a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from the primary facts;

an inference must be reasonably drawn on the basis of primary facts;

an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;

a fact relied upon as the basis of an inference need not be proved to the requisite standard of proof;

it is not enough that the inference is a mere possibility: it must be one of "probable connection" ;the inference must be a logical one, and not supposition;

an inference cannot be made where more probable and innocent explanations are available on the evidence

76. The Tribunal considered whether it was possible to draw an inference that the decision to suspend the membership of Clancy McKellar was on the ground of his race.

77. The usual course when a Club member is reported for unacceptable behaviour is that the Club writes to them to advise that their Club membership has been suspended until such time as the incident can be considered by the Board. That is what occurred in this instance. The Tribunal accepts that Clancy McKellar was not the aggressor in relation to an altercation with Brett Barker. The Board Minutes indicate that the behaviour for which Clancy McKellar was suspended was not the altercation with Brett Barker, it was the arguing, verbal abuse and swearing towards staff in relation to the issue of the last bus to North Bourke. The Applicant’s behaviour in relation to this incident was considered by the Board and considered to be unacceptable, but no further penalty was imposed.

78. The Tribunal also notes that Brett Barker was also reported for inappropriate behaviours that evening. His membership was suspended until the Board meeting, but no further penalty was imposed.

79. The Tribunal therefore finds that the Club has provided a more probable and innocent explanation for the decision to temporarily suspend Clancy McKellar’s membership. The Tribunal does not find that the decision to suspend the membership of Clancy McKellar was on the ground of his race.

The Incident of 9 July 2011

Factual Findings

80. Both Loretta McKellar and Clancy McKellar attended the Club on 9 July 2011. They both gave evidence that Clancy McKellar had little to drink that evening, no more than one alcoholic drink. Clancy McKellar claims that he was leaving the Club because he had a head-ache. His evidence is that the Police physically removed him from the Club for no reason. He denies that he was refused service at the bar or asked to leave. His evidence is supported by Loretta McKellar.

81. Their evidence is contradicted by Jason Carroll. The evidence from Jason Carroll was that he observed other persons buying alcoholic drinks for Clancy McKellar. Jason Carroll’s evidence was that he considered that Clancy McKellar appeared to be intoxicated. He said that he told a female person that Clancy had too much to drink. He overheard Ms Cole ask him to leave. He refused to do so and became increasingly verbally aggressive and used offensive language to staff. The evidence from Jason Carroll and Senior Constable Ellis was that it was their observation that he appeared to be intoxicated. He was described as loud, yelling, verbally aggressive, slurring his words and making very offensive statements towards Club Staff.

82. Sergeant Williams gave evidence that Club must comply with the requirements of its licence under the Liquor Act. It is a requirement that the Club not serve intoxicated or argumentative persons must leave when asked.

83. There is a significant contest in the evidence given by both Clancy and Loretta McKellar and that of the Respondent’s three witnesses. The evidence of the Respondent’s three witnesses is consistent with the contemporaneous notes recorded in the Incident Log Book by Ms Cole. The Police Officers also recorded contemporaneous notes. The Tribunal therefore preferred their version of events.

84. The Tribunal therefore finds that Clancy McKellar appeared to be intoxicated and was asked to leave the Club. He refused to comply and he become increasingly verbally aggressive, was “yelling” and used obscene language towards staff. The incidents occurred in the presence of two Police officer. The Police Officers then determined to remove him from the Club premise.

85. Both Clancy and Loretta McKellar had their memberships suspended until the Board of Directors met to consider the matter. At the Club Board meeting the Board determined to suspend the Club membership of both Clancy McKellar and Loretta McKellar for a period of 12 months.

Detriment

86. The Tribunal finds that the suspension of Club membership for a period of 12 months constitutes a “detriment” and is within the scope of s.20A. It may also constitute limiting his access to a benefit provided by the Club being the use and enjoyment of the Club’s facilities. The Tribunal finds that the incident falls within the scope of s.20A.

Less Favourable treatment

87. As noted above in relation to the complaints, the Applicant provided no evidence of a comparator in relation to these complaints and submitted that the Tribunal should have regard to a hypothetical comparator. As there was no evidence of an actual comparator the issues of “differential treatment” and “causation” “merged”. The Tribunal therefore considered the issue of causation.

Was the treatment on the ground of the applicant’s race?

88. There was no direct evidence that the decision to suspend the membership of Clancy McKellar was on the ground of his race. The Tribunal considered whether it was possible to draw an inference that the decision to suspend the Applicant was on the ground of his race.

89. The Respondent’s evidence was that the Board resolved to impose the 12 month suspension because the behaviour of Clancy McKellar. The evidence indicates that even with Police intervention he refused to leave the Club premises, despite repeated warnings including that he faced a fine for failure to leave the premises when directed to do so. The Police involved had to physically remove him from the premise.

90. The evidence of Sergeant Williams is that the Club is in breach of it’s licence conditions to serve alcohol to intoxicated persons or to have intoxicated or argumentative persons on Club premises.

91. The Tribunal finds that the Respondent has provided a more probable and innocent explanation for the suspension. There was no causal link to indicate that the treatment was on the ground of the Applicant’s race.

Orders

92. The complaints of direct discrimination on the ground of race in relation to the complaints of January 2011, May 2011 and 9 July 2011 are dismissed.

Costs

93. Any application for costs and any evidence in support of such an application is to be filed and served within 28 days of these orders.

94. Any reply to such application and any evidence in support is to be filed and served within a further 28 days.

95. Any application for costs will be determined on the papers unless there is an application for hearing.

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: 05 August 2015