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

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.
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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read McKellar v Bourke Bowling Club Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWCATAD 161
Decision Date: 05 August 2015

CaseChat Overview and Summary

McKellar v Bourke Bowling Club Ltd was a case involving an allegation of racial discrimination against the Bourke Bowling Club Ltd. The respondent, McKellar, claimed that the club had discriminated against him on the basis of his race when they refused to let him play in a game. The case was heard in the Supreme Court of New South Wales. The central issue in the case was whether the club's refusal to allow McKellar to participate in the game constituted racial discrimination, and if so, whether it was a breach of the Anti-Discrimination Act. Additionally, the court needed to determine whether the club's actions were justifiable under any exceptions provided in the Act.

The court examined the club's policies and practices and found no evidence of a discriminatory policy or practice. The court also considered the club's argument that the refusal was based on the specific circumstances of the game rather than McKellar's race. The court held that the club's actions did not constitute racial discrimination, as there was no evidence of a policy or practice that treated McKellar less favourably because of his race. The court also found that the club's actions were not a breach of the Anti-Discrimination Act, as the refusal was not based on McKellar's race but rather on the specific circumstances of the game. Therefore, the complaints were dismissed, and the court found in favour of the Bourke Bowling Club Ltd.

Orders

Orders of the court

The complaints are dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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