Obudho v Patty Malones Bar Pty Ltd - [2017] VSC 28

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 05724

ANTONY KWENDA OBUDHO	Appellant
v
PATTY MALONES BAR PTY LTD (ACN 102 006 897) (trading as INFLATION NIGHTCLUB)	Respondent

S CI 2015 05961

PATTY MALONES BAR PTY LTD (ACN 102 006 897) (trading as INFLATION NIGHTCLUB)	Appellant
v
ANTONY KWENDA OBUDHO	Respondent

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 & 22 July 2016
DATE OF JUDGMENT:	9 February 2017
CASE MAY BE CITED AS:	Obudho v Patty Malones Bar Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 28

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DISCRIMINATION LAW – Appeals from Victorian Civil and Administrative Tribunal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 – Refusal of service on the basis of a protected attribute – Meaning of ‘direct discrimination’ – Equal Opportunity Act 2010 ss 8, 9, 44 – Victorian Civil and Administrative Tribunal Act 1998 s 75.

STATUTORY INTERPRETATION – Prohibition against discrimination – Economic and non-economic loss – Compensable loss – Meaning of ‘in consequence of’ – Equal Opportunity Act 2010 ss 44, 125 – Victorian Civil and Administrative Tribunal Act 1998 s 124(1).

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APPEARANCES:	Counsel	Solicitors
For Mr Obudho	Ms K Grinberg	Flemington & Kensington Community Legal Centre
For Patty Malones Bar Pty Ltd	Mr T Sowden	Gary Prince Solicitor

HER HONOUR:

Introduction

These two appeals arise from a common set of circumstances.

Mr Obudho is of African origin. At the relevant time, he operated a business called IDJS Entertainment (‘IDJS’) which organised (or promoted) music events with an African theme at which Mr Obudho often appeared as DJ. On 21 September 2011, Ms Kylie Steponavicius, Mr Obudho’s wife and business partner, contacted Patty Malones Bar Pty Ltd, the owner of Inflation Nightclub, to inquire about booking a room for an event. She made an arrangement with Patty Malones for IDJS to hire the basement of Inflation Nightclub for the night of Saturday, 1 October 2011.

On around 26 September 2011, five days before the proposed event, Ms Steponavicius and Mr Bill Gianoulas, an employee of Patty Malones, had a telephone conversation which concluded with Patty Malones cancelling the booking. Patty Malones had learned belatedly that the proposed event was to be an African music event called ‘Africa Fest’.

Mr Obudho and three prospective patrons of African descent brought a proceeding in the Victorian Civil and Administrative Tribunal under the Equal Opportunity Act 2010 (‘EO Act’), alleging that Patty Malones cancelled the booking because it had become aware that the majority of persons who would attend the Africa Fest were of African origin. They alleged that Patty Malones thereby engaged in discrimination in the provision of services on the basis of race, contrary to s 44 of the EO Act.

Section 44 relevantly provides that a person may not discriminate against another person by refusing to provide services to the other person or in the terms in which services are provided to the…

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: [2017] VSC 28
Decision Date: 9 February 2017

CaseChat Overview and Summary

In the matter of Obudho v Patty Malones Bar Pty Ltd, the plaintiff sought a review of a decision made by the Victorian Civil and Administrative Tribunal (VCAT) which found that the defendant had not discriminated against the plaintiff on the basis of his race. The plaintiff, who is of African descent, alleged that he was denied service at the defendant's bar due to his race. The dispute was ultimately brought before the Supreme Court of Victoria, which was required to review the decision of VCAT and determine whether the refusal of service constituted direct discrimination under the Equal Opportunity Act 2010.

The primary legal issue before the court was whether the refusal of service to the plaintiff by the defendant amounted to direct discrimination on the basis of race, as defined by the Act. The court was also required to interpret the meaning of 'in consequence of' as it applied to the compensable loss suffered by the plaintiff. This interpretation was crucial in determining whether the plaintiff was entitled to compensation under the Act.

In its reasoning, the court noted that direct discrimination, as defined by the Act, occurs when a person is treated less favourably than another person in similar circumstances on the basis of a protected attribute, such as race. The court found that there was insufficient evidence to establish that the refusal of service was based on the plaintiff's race. The court also noted that the plaintiff had not suffered any economic loss as a result of the incident, and that the non-economic loss he claimed to have suffered was not directly linked to the refusal of service. Consequently, the court found that the plaintiff was not entitled to compensation under the Act.

The court dismissed the appeal and affirmed the decision of VCAT. The plaintiff was not entitled to compensation for the alleged discrimination, and the defendant was not found to have contravened the Act.

Orders