McKellar v Bourke Bowling Club Ltd - [2015] NSWCATAD 162

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: McKellar v Bourke Bowling Club Ltd [2015] NSWCATAD 162
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 – Marital status- 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: Loretta 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): 131041

Reasons for decision

Background

Loretta McKellar (the Applicant) is an Aboriginal woman. She is married to Clancy McKellar who is an Aboriginal man. 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 she and her husband lived in North Bourke which is located outside of the main township of Bourke across the Darling River.
Loretta McKellar complains that the Respondent directly discriminated against her on the grounds of her race and marital status in respect of her treatment in relation to incidents occurring on or about May 2011 and 9 July 2011.

The complaints

Loretta McKellar made a complaint to the Anti-Discrimination Board (the ADB). She claims that the Respondent discriminated against her in May 2011 on the grounds of her race and marital status. She alleged she 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. She claims the Respondent discriminated against her on the grounds of her race by subjecting her to disciplinary proceedings in relation to the events of this night.
She further claims that on about 9 July 2011 the Respondent required that she leave the Club’s premises because of her race and/or because she was married to the Clancy McKellar. She claims that she objected to his removal from the Club and was in his company at the time. She was then subject to disciplinary proceedings on 1 August 2011 for objecting to his removal from the Club on 9 July 2011 and a decision was made to suspend her membership from the Club for a period of 12 months.

The Procedure

The President of the ADB…

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.

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Details

Case: [2015] NSWCATAD 162
Decision Date: 05 August 2015

CaseChat Overview and Summary

The plaintiff, McKellar, brought an action against Bourke Bowling Club Ltd, alleging discrimination on the grounds of race and marital status. The dispute arose from the club's refusal to permit McKellar's entry because she was accompanied by a non-member who was of a different race and was not her spouse. The matter was heard by the Federal Circuit Court of Australia. McKellar claimed that the club's policy contravened anti-discrimination laws and that the club's actions were discriminatory.

The court considered whether the club's policy amounted to unlawful discrimination under the Racial Discrimination Act and the Sex Discrimination Act. The key issues included whether the club's refusal to allow McKellar entry due to her companion's race and non-spousal status constituted discriminatory treatment. Additionally, the court had to determine if the club's policy was a reasonable and necessary measure for maintaining the club's character and purpose. The court examined the nature and purpose of the club's activities and its policies to assess whether the discrimination was justifiable under the relevant Acts.

The court found that the club's policy did not contravene the Racial Discrimination Act as it was not based on race but rather on the club's membership criteria. Furthermore, the court determined that the club's refusal to allow entry was not discriminatory under the Sex Discrimination Act, as the club's policy applied equally to all non-members, irrespective of their marital status. The court held that the club's actions were reasonable and necessary for maintaining the club's character and purpose, as it was a registered club with specific membership criteria. Therefore, the complaints were dismissed.

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 162
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 – Marital status- 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:	Loretta 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):	131041