Obudho v Patty Malones Bar Pty Ltd
[2017] VSC 28
•9 February 2017
| 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 other person. Section 8(1) of the EO Act provides that discrimination occurs if a person treats a person with an attribute unfavourably because of that attribute. Race is an attribute in respect of which unfavourable treatment is prohibited.
Mr Obudho and the other applicants contended that, by cancelling the Africa Fest and refusing to provide services to them in accordance with the agreement, Patty Malones directly discriminated against them by treating them unfavourably because of their race. They sought, among other things, a declaration that Patty Malones had discriminated against them on the basis of their race in contravention of s 44 of the EO Act. Mr Obudho sought compensation of $8,000 for economic loss in the form of lost profits on the proposed Africa Fest. He also sought compensation for non-economic loss in the sum of $7,000 on the basis that his public dealings and businesses were affected by the cancellation of the event and he suffered stress and humiliation when he had to explain to his customers what had occurred, as well as personal upset and humiliation as someone with the attribute that attracted the discrimination.
Patty Malones contended it did not cancel the booking because of the race of the patrons. In its Defence, it pleaded that it was its policy to comply with guidelines for late night venues published from time to time by ‘Venue Compliance Essentials’ (‘guidelines’). Had it been informed that the type of event planned by IDJS was a ‘culturally specific event’, it would have submitted a notification form to Victoria Police and arranged for additional security in accordance with the guidelines. When it became aware of security concerns about the planned event, it asked IDJS to contribute to the cost of having additional security guards working on the night and IDJS refused to do so. Having regard to safety issues raised by Victoria Police, the guidelines and IDJS’s refusal to share the costs of extra security, it said it had no choice but to cancel the event.
On 23 October 2014, the Tribunal heard an interlocutory application by Patty Malones for the proceeding to be summarily dismissed on the basis that, even if adverse findings of discrimination were made against it, Patty Malones was protected because the decision to cancel the booking was authorised by the Liquor Control Reform Act 1998 (‘LCR Act’). Section 75 of the EO Act relevantly provides that a person may discriminate if the discrimination is necessary to comply with, or is authorised by, an Act or enactment (other than the EO Act itself).
Patty Malones contended that, in cancelling the booking, it had sought to ensure that it complied with its obligations under the LCR Act by implementing the policies for culturally specific events in the guidelines. These consisted of the policy for ‘promoter events’ requiring notice to be given to Victoria Police sufficiently in advance of the event to enable discussions to be held (the notice policy) and the policy that the standard form of promoter agreement be entered into that includes an obligation to contribute to the cost of engaging additional security guards (the security policy).
The Tribunal heard evidence from the sole director of Patty Malones and from two police officers about the application of the notice and security policies. The Tribunal found that it was not too late for Patty Malones to have applied the notice policy.[1] It also held that there was no sufficient connection between the notice policy and Patty Malones’ obligations in respect of amenity under the LCR Act.[2] It held further that the guidelines were not a guide to compliance with legal obligations under the LCR Act[3] and that compliance with the guidelines was not necessary in order to comply with the amenity-related requirements under the LCR Act.[4] There was nothing in the LCR Act or the guidelines indicating that either the notice policy or the security policy were necessary in order to comply with the LCR Act.[5]
[1]Obudho v Patty Malones Bar Pty Ltd [2014] VCAT 1390 (7 November 2014) (‘Reasons on summary judgment application’) [62].
[2]Reasons on summary judgment application [63].
[3]Reasons on summary judgment application [67].
[4]Reasons on summary judgment application [70].
[5]Reasons on summary judgment application [73].
As to whether the discriminatory conduct was authorised by the LCR Act, the Tribunal decided that Patty Malones had not established the factual basis for a connection between the legal obligations in the LCR Act and either the notice or security policies.[6] The mere sending of a form (in accordance with the notice policy) was not sufficiently causally linked to the responsibility to protect amenity to permit the conclusion that the LCR Act authorised a licensee to discriminate on the basis of race in respect of that form.[7] Furthermore, it was difficult to see how the failure to enter into a particular form of agreement (a promoter agreement) would mean that racial discrimination would be authorised by the LRC Act.[8]
[6]Reasons on summary judgment application [87].
[7]Reasons on summary judgment application [88].
[8]Reasons on summary judgment application [89].
In summary, the Tribunal held that in the absence of any provision in the LCR Act which expressly or by necessary implication permitted racial discrimination in order to comply with a statutory obligation, and in the absence of a sufficient connection between the LCR Act and the policies relied on by Patty Malones, Patty Malones was not authorised to racially discriminate for the purposes of s 75 of the EO Act.
Having dismissed Patty Malones’ application for summary judgment, Tribunal proceeded to hear the claims made by the applicants. It held that Patty Malones had contravened s 44 of the EO Act by refusing to provide services to each applicant in circumstances where it cancelled the room hire booking because of the race of the prospective patrons, which included each applicant. However, it dismissed all other claims, including Mr Obudhu’s claims for compensation.
Tribunal’s Reasons
In its reasons for decision,[9] the Tribunal commenced by identifying what it described as ‘legal issues as to the applicants’ capacity to bring the claims’. The Tribunal identified four such issues:[10]
[9]Obudho v Patty Malones Bar Pty Ltd [2015] VCAT 1521 (7 October 2015) (‘Reasons’) [9].
[10]Reasons [10].
(a) Has Mr Obudho proven his claim for direct discrimination in his capacity as owner of IDJS and if so has he established his claims for economic and non-economic loss arising from business related losses and damage?
(b) Have the applicants proved a claim for direct discrimination on the basis that Patty Malones imposed certain requirements and conditions in respect of the planned event?
(c) Have the applicants, as prospective patrons unknown to Patty Malones, established that they are entitled to bring a claim of discrimination on the basis that they were refused services because of their race?
(d) Have the applicants proven that Patty Malones cancelled the booking and so refused to provide services to the applicants and that a substantial reason for doing so was their race?
The Tribunal answered the first two questions ‘No’ and the second two questions ‘Yes’. In other words, it refused Mr Obudho’s claims for economic and non-economic loss arising from business related losses and damage, but held that all of the applicants as prospective patrons had established that they were entitled to bring a claim of discrimination on the basis that they were refused services because of their race and found proven that Patty Malones denied them services substantially because of their race. The Tribunal then stated:[11]
I have made a declaration that Patty Malones contravened s 44 of the EO Act. As no compensation or other remedy was sought in respect of the claim arising from the applicants’ planned attendance at the event, the declaration is the sole order made in respect of that claim. The other claims have been dismissed.
[11]Reasons [11].
The Tribunal found that the services to be provided by Patty Malones to the applicants were, subject to the payment of the entry fee and the usual entry requirements, to give them entry to Inflation and access to the event (the Africa Fest), which included access to music, the bar and the venue’s other facilities.[12] By cancelling the booking for the room that was to be made available for the purpose of holding the Africa Fest, Patty Malones had refused to provide services to the applicants. That act was an act of direct discrimination under s 8 of the EO Act as it was unfavourable treatment because of the race of the prospective patrons, including all the applicants.[13]
[12]Reasons [231].
[13]Reasons [234].
In the Reasons, the Tribunal identified part of Mr Obudho’s claim as arising from the allegation that Patty Malones discriminated against him ‘as the owner of IDJS’ when it refused to provide services to him by giving effect to the agreement entered into for the event and stated that this was the basis on which the lost profits were claimed.[14] The Tribunal held that it was necessary for Mr Obudho to demonstrate that Patty Malones discriminated against him as the owner of the business because of his race. His claim for non-economic loss was also held to depend on that matter being proven.[15]
[14]Reasons [42].
[15]Reasons [43].
The Reasons disclose that the Tribunal sought written submissions after the hearing on the matter of how s 8 of the EO Act applied in circumstances where Mr Obudho made a claim of direct discrimination on the basis of race but there was no dispute between the parties that Patty Malones did not know that Mr Obudho owned IDJS and did not know that he was African until well after it cancelled the booking.[16]
[16]Reasons [44].
In response, Mr Obudho provided a written submission that included the following:
It is sufficient that Mr Obudho intended to attend the event, and that he shares the relevant attribute. It is not disputed that Mr Obudho possesses the relevant attribute. It is clear that Mr Obudho was planning to attend the event. Among other things, it is advertised on the poster for the event that DJ Kwenda was playing at the event. This is Mr Obudho’s name and Mr Obudho confirmed this referred to him.
Mr Obudho was refused services when Inflation cancelled the event. There was evidence presented to the Tribunal of Mr Obudho’s long-standing personal involvement in attending and organising events attended by the African community in Melbourne and interstate. Mr Obudho had both a personal and financial interest in the event that was cancelled. Because Mr Obudho was the owner of IDJS and also stood to gain financially from the event, his financial loss is more than the loss of the other applicants. However this fact does not impose any additional burden on Mr Obudho in establishing his claim, nor does it disentitle him from claiming the loss that he suffered as a result of the discrimination.[17]
[17]Reasons [46].
Notwithstanding this submission, the Tribunal held that the critical problem with ‘this aspect of Mr Obudho’s claim’ was the way in which the word ‘because’ was to be read in s 8 of the EO Act. Direct discrimination will be proven where there is unfavourable treatment because of the applicant’s attribute. However the applicants did not contend that the music event was cancelled because of Mr Obudho’s race or his planned attendance as a patron or DJ. It was the race of the patrons which actuated the mind of Patty Malones, not the race of the owner of the business running the event.[18] The Tribunal concluded:[19]
In circumstances where Patty Malones did not know Mr Obudho owned IDJS or what his race was, Mr Obudho’s claim of direct discrimination in his capacity as owner of IDJS cannot succeed. That aspect of his claim and the claimed business loss and non-economic loss associated with Mr Obudho’s ownership of IDJS and the cancellation of the booking will be dismissed.
[18]Reasons [53].
[19]Reasons [55].
As to whether there was unlawful discrimination against persons intending to attend the Africa Fest, the Tribunal’s findings were as follows:
232. For the reasons set out above, I find on the evidence before me that:
- Police officers alerted Patty Malones to the Africa Fest event but there is no established link between that visit, IDJS and an alleged occasion when police asked Inflation to keep its patrons inside due to a street brawl;
- Prior to 26 September 2011, there had been one incident of serious violence at an IDJS event at High Fidelity Bar, but it had been appropriately managed with police and the venue owner;
- Ms Steponavicius and Mr Obudho did not mislead Ms Szoeke or Mr Gianoulas about the nature of the event they were planning to hold or their past record;
- As revealed by the emails sent before the 26 September 2011 conversation, Ms Steponavicius and Mr Obudho were open to scrutiny of IDJS’ business and events and attempted to obtain and provide all relevant information. Consistent with that, they invited a representative of Patty Malones to attend one of their events and invited Patty Malones to speak to venues to obtain information and references;
- Neither Mr Gianoulas or Mr Dromi asked IDJS to contribute to additional security costs to allow the event to proceed. Even if such a request had been made, IDJS would have agreed to do so in order to have the planned event go ahead;
- Mr Gianoulas told Ms Steponavicius and Mr Obudho that, because the majority of their patrons would be African, the planned event would not proceed;
- By cancelling the event, Patty Malones refused services to the applicants who would all otherwise have attended;
- The cancellation of a planned event which the applicants intended to attend was unfavourable treatment because they were deprived of the opportunity to attend the social event and it was insulting and humiliating for that decision to be made on the basis of their race; and
- A substantial reason for the cancellation of the event was because of the race of the prospective patrons, including each applicant.
233.For the reasons set out above, I reject the contention that the reason the planned event was cancelled was because of a refusal by IDJS to address Patty Malone’s risk related concerns, including by contributing more to security costs. I reject the contention that, in its dealings with IDJS, Patty Malones simply applied its standard approach to an event of this kind and that it was IDJS’ unwillingness to contribute to additional costs which was the reason for the event being cancelled.
234.The consequence of my findings is that the applicants have proven that Patty Malones contravened section 44 of the EO Act when, by cancelling the booking for the basement which was made for the purpose of holding the Africa Fest event, it refused to provide services to the applicants. That conduct was an act of direct discrimination under section 8 of the EO Act as it was unfavourable treatment because of the race of the prospective patrons, including the applicants.
Mr Obudho’s appeal
In proceeding 05724 of 2015, Mr Obudho has raised the following question of law in relation to the manner in which the Tribunal dealt with the question of his entitlement to compensation:
Having found that the respondent had contravened the EO Act by refusing to provide services to the appellant because of the race of the appellant, did the Tribunal fail, when determining the appellant’s claim for compensation for economic and non-economic loss, to consider the question posed by s 125(a)(ii) of the EO Act, namely whether the loss and damage claimed by the appellant had been suffered in consequence of the respondent’s contravention of the EO Act?
By his first ground of appeal, Mr Obudho contends that, in dismissing his claims for compensation for economic and non-economic loss, the Tribunal asked itself the wrong question or, rather, failed to ask itself the right question. It should have asked whether the claimed loss was suffered in consequence of Patty Malones’ contravention of the EO Act and whether the compensation sought by Mr Obudho was properly described as compensation for loss and damage suffered in consequence of Patty Malones’ contravention of the EO Act. Instead, the Tribunal considered the ‘capacity’ in which Mr Obudho had suffered discrimination as determinative of whether or not compensation should be ordered.
By his second ground of appeal, Mr Obudho contends that the Tribunal failed to complete its jurisdictional task by failing to consider his claim for non-economic loss on the basis of personal upset and humiliation, in that it considered only the upset and humiliation that he suffered in his capacity as operator of his business.
Ground 1 – compensation for economic loss
Section 125 of the EO Act permits the Tribunal to make an order for compensation where there has been a contravention of the Act. Relevantly, it provides:
After hearing the evidence and representations that the parties to an application desire to adduce or make, the Tribunal may—
(a)find that a person has contravened a provision of Part 4, 6 or 7 and make any one or more of the following orders—
…
(ii)an order that the person pay to the applicant, within a specified period, an amount the Tribunal thinks fit to compensate the applicant for loss, damage or injury suffered in consequence of the contravention;
Having found that Patty Malones had contravened s 44 of the EO Act in cancelling the Africa Fest because the majority of attendees would be of African descent, it fell to the Tribunal to consider Mr Obudho’s claim for compensation under s 125(a)(ii). This involved deciding whether Mr Obudho was entitled to an amount to compensate him for loss, damage or injury suffered by him ‘in consequence of’ the cancellation of the Africa Fest at Inflation Nightclub.
As discussed, the Tribunal held that Mr Obudho’s claim for economic loss depended on proof that Patty Malones discriminated against him as owner of IDJS because of his race. In circumstances where Patty Malones did not know that Mr Obudho owned IDJS or what his race was, Mr Obudho’s claim of direct discrimination in his capacity as owner of IDJS could not succeed, and the Tribunal dismissed the claimed business loss and non-economic loss associated with his ownership of IDJS.[20]
[20]Reasons [55].
The Tribunal further stated that, as no compensation or other remedy was sought in respect of the claim arising from Mr Obudho’s planned attendance at the event, the declaration would be the sole order made in respect of the claim.[21]
[21]Reasons [11].
The question is whether, in distinguishing between loss suffered as a person denied the opportunity to attend the Africa Fest and loss suffered as a business owner denied the opportunity to run the event as a commercial venture the Tribunal misconstrued the task mandated by s 125(a)(ii).
Mr Obudho submits that the Tribunal’s analysis is not consistent with the words of s 125(a)(ii) which simply required the Tribunal to consider whether the loss, damage or injury suffered by Mr Obudho was ‘in consequence of’ the contravention.
Mr Obudho is correct to submit that the availability of compensation depends on the language of s 125(a)(ii) of the EO Act. It is the words of the statute that set the criterion for any award.[22] Thus, in Hall v A & A Sheiban Pty Ltd,[23] French J said:[24]
There are decisions on anti-discrimination legislation which treat its contravention as a species of tort and approach the measure of damages accordingly… Whether that classification is strictly correct or not, the measure of damages is to be governed by the statute and the rules applicable in tort can be of no avail if they conflict with it. It may be that while there are events for which the conduct complained of is a sine qua non, they would not be recognised in any practical sense as arising ‘by reason of’ it. Exclusion principles analogous to concepts of remoteness, and failure to mitigate may then be seen to operate. In the end, however, these are to be subsumed in a practical judgment of cause and effect.
[22]Qantas Airways Ltd v Gama (2008) 167 FCR 537, 568 [94] considering the award of damages under s 46PO(4)(d) of the Australian Human Rights Commission Act 1986 (Cth).
[23](1989) 20 FCR 217.
[24]Hall v A & A Sheiban [1989] FCR 217 (‘Sheiban’), 281.
The meaning of the phrase, ‘a consequence of’ was considered by McHugh J in Insurance Commission of Western Australia v Container Handlers Pty Ltd,[25] albeit in a different context. His Honour stated that ‘consequence’ is an ordinary English word and must be interpreted as such. The Australian Oxford Dictionary defined ‘consequence’ as ‘the result or effect of an action’. His Honour then said:[26]
… in the context of the Act the expression ‘a consequence of’ emphasises the result or effect of the driving rather than the driving causing the result. This distinction is important in an insurance context where cause is frequently — perhaps usually — equated with ‘proximate’ or ‘dominant’ cause. Although ‘consequence’ involves notions of causation, the term ‘consequence’ — with its emphasis on effect — places less emphasis on the proximity of cause and effect than the term ‘cause’ may do in various contexts.
[25](2004) 218 CLR 89 [43].
[26]Ibid [45].
In this case, there were no factors other than the cancellation of the Africa Fest by Patty Malones that could have caused or contributed to the loss of profit claimed as economic loss. Mr Obudho’s economic loss was caused only by Patty Malones’ cancellation of the booking for the Africa Fest.
The losses claimed must be the consequence or the result of the contravention of the EO Act. In this case, the contravention was the denial of services to a group of people — including Mr Obudho — on the basis of their race. The Tribunal held that Patty Malones unlawfully denied Mr Obudho and the other applicants services that included access to music, the bar and the venue’s other facilities. However, there was no suggestion that had Mr Obudho or any of the other applicants individually presented at Inflation Nightclub on the evening in question to attend a generic event, they would have been denied access to the venue and its services. The denial of services related specifically to the event organised by Mr Obudho which would attract a majority of patrons of African descent. Patty Malones did not deny to the applicants access to music, the bar and the venue’s facilities generally; rather, it denied them access to those facilities for the purpose of attending the Africa Fest. The denial of access to Patty Malones’ facilities for the Africa Fest because of the race of the majority of attendees was effected through the cancellation of the booking. The contravention of the EO Act is best characterised, in my view, as the cancellation of the booking for the Africa Fest.
Mr Obudho was a target of the discriminatory conduct and was discriminated against as one of a group of people denied services by Patty Malones because of their race. Pursuant to s 125(a)(ii) of the EO Act, he was entitled to be compensated for loss or damage suffered as a result of the cancellation of the booking.
In Sheiban,[27] Lockhart J stated that, generally speaking, the correct way to approach the assessment of damages was to ‘compare the position in which the complainant might have been expected to be if the discriminatory conduct had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent’.[28]
[27](1989) 20 FCR 217.
[28]Ibid 239.
On that basis, Mr Obudho, as a victim of the discriminatory conduct constituted by the cancellation of the booking for the Africa Fest, is entitled to compensation directed to putting him in the position that he would have been in had the booking for the Africa Fest not been cancelled. He is entitled to compensation for his loss of profit on the Africa Fest.
The Tribunal was required to consider whether the loss suffered by Mr Obudho was ‘in consequence of’ the cancellation of the booking for the Africa Fest. The Tribunal, in focussing on the capacity in which Mr Obudho had been discriminated against, failed to ask whether Mr Obudho had suffered loss in consequence of the contravention of the EO Act, that is, as a result of the cancellation of the booking for the Africa Fest.
Ground 1 is made out.
Ground 2 — compensation for non-economic loss
The Tribunal also refused to order an amount of compensation for non-economic loss on the ground that its availability depended on him demonstrating that Patty Malones discriminated against him as the owner of IDJS because of his race.
I have already explained why that was not the correct approach. In any event, Mr Obudho’s claim for compensation for non-economic loss was made on two distinct bases: first, on the basis that he suffered stress and humiliation when he had to explain to his customers what had occurred; and, secondly, on the basis of personal upset and humiliation as someone with the attribute that attracted the discrimination. So much is clear from the submission referred to at paragraph 38 of the Reasons.
The Tribunal was not correct to say that no compensation or any other remedy was sought by the applicants as a prospective attendees. Mr Obudho sought compensation for his losses, both in connection with his business and in respect of his personal loss or damage.
Ground 2 is also made out.
Conclusion on Mr Obudho’s appeal
The grounds of appeal have been made out and the appeal is allowed.
Pursuant to s 148(7), the Court may make any order that the Tribunal could have made in the proceeding. The Court may therefore make an order that Patty Malones pay Mr Obudho an amount that it thinks fit to compensate him for the loss or damage that he has suffered as a result of the cancellation of the booking.
In Alexander v Home Office,[29] the United Kingdom Court of Appeal described the objective of an award of compensation in the following terms:[30]
As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referrable to this can be readily calculated. For the injury to feelings, however, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend on the experience and good sense of the judge and his assessors. Awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the results which it seeks to achieve as do nominal awards.
[29][1988] 2 All ER 118.
[30]Ibid 122.
There was evidence before the Tribunal about Mr Obudho’s loss of profit upon which the Court can act. That evidence is in the transcript. Mr Obudho gave evidence that, had the event not been cancelled by Patty Malones, he was expecting to make a profit of around $6,000 to $7,000; Ms Steponavicius gave evidence that the expected profit from the event was in the range of $7,000 to $8,000, based on an expectation of 250 to 400 attendees, with a ticket price of $25.
It was submitted that the figures put forward by Mr Obudho and Ms Steponavicius were gross figures that needed to be adjusted for the costs that would have been incurred in putting on the Africa Fest. The evidence in this regard was somewhat confusing. Counsel for Mr Obudho described it as ‘ambiguous’. It is not clear whether the costs of staging the Africa Fest have been deducted from the amounts claimed. As a result, I intend to accept the lowest of the figures put forward by Mr Obudho for his loss of profit. I will order the payment of compensation for Mr Obudho’s loss of profit on the cancelled event in the amount of $6,000.
As to non-economic loss, Mr Obudho submits that his claim for non-economic loss in the sum of $7,000 is reasonable and appropriate.
Ms Steponavicius gave evidence that Mr Obudho expressed ‘shock and disbelief’ about the cancellation of the event in the course of the phone call that she had with Mr Gianoulas. Mr Obudho was listening to that conversation. Mr Obudho agreed that he was shocked and disappointed by the decision to cancel the event. He also gave evidence about the steps that he took to inform potential attendees of its late and sudden cancellation. I accept that the cancellation of the event on the ground of the race of the attendees, including Mr Obudho, would have been upsetting and humiliating to him.
Having regard to recent awards made by the Tribunal for non-economic loss[31] and the (rather scant) direct evidence supporting this claim, I consider that Mr Obudho should be awarded $6,000 for non-economic loss in the form of personal upset and humiliation.
[31]Ingram v QBE Insurance (Australia) LTD (Human Rights) [2015] VCAT 1936; Bevilacqua v Telco Business Solutions (Watergardens) PL No 2 [2015] VCAT 693.
Order 2 of the Tribunal will be set aside. In lieu thereof it will be ordered that Patty Malones pay compensation to Mr Obudho as set out above.
Patty Malones’ Appeal
In proceeding 05961 of 2015, Patty Malones appeals from the whole of the Order made by the Tribunal on 7 October 2015.
By ground 1, Patty Malones contends that the Tribunal erred in holding that its conduct was not authorised by the provisions of the LCR Act as a means of preserving the amenity of the area in and around the licensed premises in accordance with s 75 of the EO Act.
Ground 2 is that the Tribunal erred in failing to consider whether there was a more probable and innocent explanation for Patty Malones’ conduct in refusing services to the respondents (the persons proposing to attend the event).
Ground 3 is that the Tribunal erred in determining that a case in direct discrimination had been made out where:
(a)Patty Malones had no knowledge of the existence of the complainants;
(b)the impugned conduct was not aimed at or towards any of them; and
(c)to hold that Patty Malones’ conduct amounted to direct discrimination would deprive s 9 of the EO Act of any utility or meaning.
Ground 1
The first ground of appeal relates to the subject-matter of the 2014 decision and Order. In the 2014 decision, the Tribunal held that Patty Malones’ conduct was not authorised by the provisions of the LCR Act in accordance with s 75 of the EO Act.
In the Reasons, the Tribunal referred to the 2014 decision. It recorded that it dismissed the application under s 75 of the EO Act and published its reasons for that decision. As a consequence, so the Tribunal held, that aspect of Patty Malones’ defence could not be considered further. However, the Tribunal observed that it had heard some evidence at the preliminary hearing relating, in part, to the publication of the guidelines and the topic of culturally specific events, and that it would mention some of that evidence later in the Reasons.[32]
[32]Reasons [26].
In granting leave to appeal, Ierodiaconou AsJ noted the following in ‘Other matters’:
A.In addition to seeking leave to appeal the final decision, the Applicant also initially sought leave to appeal the interlocutory order of Member Dea dated 7 November 2014 in the Victorian Civil and Administrative Tribunal proceeding H104/2014. The Court indicated that in order to do so, the Applicant would need to make an application that the Court exercise its discretion under s 148(5) of the Victorian Civil and Administrative Tribunal Act 1998 to extend time as the interlocutory decision is almost one year old. (Given the length of time, the Court indicated that it would not allow the extension simply on the basis of both parties’ consent). After some reflection, the Respondent decided not to pursue an appeal against the interlocutory application.
B.Accordingly, this proceeding will be confined to the final decision made on 7 October 2015. In respect of question of law A in the draft notice of appeal referred to below, it will be for the Trial Judge to determine whether or not to consider it given that the appeal is only in respect of the final decision.
Hence, the Associate Judge granted leave to appeal only the 2015 decision and Order. Patty Malones did not seek and does not have leave to appeal the 2014 decision and Order.
However, it is plain from the Notice of Appeal and the submissions made by Patty Malones that it now seeks to re-agitate the question decided by the Tribunal in 2014 on the availability of the statutory defence under s 75 of the EO Act. Moreover, it seeks to do so without identifying any specific error of law by the Tribunal in either the 2014 decision or the 2015 decision. The question of law associated with ground 1 is broadly stated as follows:
Whether the learned Member ought to have found that the appellant’s actions in cancelling an event organised by the first named respondent at premises owned and operated by the appellant were authorised by ss 17, 91 and 93A of the Liquor Control Reform Act 1998 (the ‘LCRA’) and therefore constituted an exception to the prohibition of discrimination for the purposes of section 75 of the Equal Opportunity Act 2010.
The corresponding ground of appeal is expressed to be that the Tribunal erred ‘in finding that [Patty Malones’] conduct was not authorised by the provisions of the [LCR Act] as a means of preserving the amenity of the area in and around the licensed premises’ in the circumstances.
This is general complaint that the Tribunal made the wrong decision and clearly involves re-opening the question of the availability of the statutory defence in relation to the implementation of the guidelines for the protection of amenity — the very question decided by the Tribunal in 2014.
It is true that the Tribunal made the 2014 decision on the basis of limited evidence and on the basis of Mr Obudho’s case taken at its highest. However, at the final hearing Patty Malones made no further submissions about the availability of the statutory defence in the context of the guidelines and the requirements of s 17 of the LCR Act and did not seek to adduce any further evidence in relation to that question.
On this basis, and given the denial of leave by the Associate Judge, Patty Malones should not now be permitted to agitate ground 1.
I am reinforced in this conclusion by factual findings made by the Tribunal, which effectively preclude any kind of serious challenge to the Tribunal’s 2014 decision or the 2015 decision on the basis that Patty Malones’ discriminatory conduct was authorised by the LCR Act in order to preserve amenity. Among other things, the Tribunal found:[33]
[33] Reasons [232].
·Police officers alerted Patty Malones to the Africa Fest event but there is no established link between that visit, IDJS and an alleged occasion when police asked Inflation to keep its patrons inside due to a street brawl;
·Prior to 26 September 2011, there had been one incident of serious violence at an IDJS event at High Fidelity Bar, but it had been appropriately managed with police and the venue owner;
·Ms Steponavicius and Mr Obudho did not mislead Ms Szoeke or Mr Gianoulas about the nature of the event they were planning to hold or their past record;
·As revealed by the emails sent before the 26 September 2011 conversation, Ms Steponavicius and Mr Obudho were open to scrutiny of IDJS’ business and events and attempted to obtain and provide all relevant information. Consistent with that, they invited a representative of Patty Malones to attend one of their events and invited Patty Malones to speak to venues to obtain information and references;
·Neither Mr Gianoulas or Mr Dromi asked IDJS to contribute to additional security costs to allow the event to proceed. Even if such a request had been made, IDJS would have agreed to do so in order to have the planned event go ahead;
·Mr Gianoulas told Ms Steponavicius and Mr Obudho that, because the majority of their patrons would be African, the planned event would not proceed;
In addition, in the 2014 decision the Tribunal found that when Patty Malones learned that the function was to be an Africa Fest, it was still not too late to notify the police about the event and seek their comment or any concerns.[34]
[34]Reasons on summary judgment application [62].
In these circumstances, this proposed ground of appeal has little merit and, even if the Tribunal’s 2014 decision was attended by a legal error of some kind, there would not be a different result were the question to be reconsidered.
Accordingly, the Court will not entertain ground 1.
Ground 2
Ground 2 is associated with the following question of law:
Whether the learned Member was bound to apply the principles enunciated by Fullagar J in Department of Health v Arumgam [1988] VR 319, namely, that a finding of discrimination based on race ought not to be made where there exists a more probable and innocent explanation for the impugned conduct.
According to Patty Malones, the Tribunal failed to consider and determine whether there was a more probable and innocent explanation for its conduct in refusing services to Mr Obudho and the other applicants than racial discrimination.
This ground is also without merit.
The Tribunal considered and rejected explanations for Patty Malones’ conduct based on amenity and safety considerations.
The findings of the Tribunal set out above clearly show the Tribunal to have considered the explanations advanced by Patty Malones for its conduct. However, it found, on the evidence before it, that the booking was cancelled because the majority of the attendees would be African.
Further, in so finding, the Tribunal described the standard of proof — in accordance with Department of Health v Arumgam[35] — as requiring the applicants to prove their case as more probable than not and that there was no equally or more probable innocent explanation for the conduct.[36]
[35][1988] VR 319.
[36]Reasons [86].
Ground 2 is not made out.
Ground 3
Ground 3 of Patty Malones’ appeal raises the following question of law:
Whether the learned Member misconstrued the test for direct discrimination in circumstances where:
(a)the test for direct discrimination imports a requirement of knowledge of the existence of each of the applicants;
(b)the member found as a matter of fact that there was no relevant knowledge of the individuals involved; and
(c)the respondents elected to abandon their claim in indirect discrimination on the first day of the trial.
In substance, Patty Malones submits that the Tribunal erred in holding that it directly discriminated against the applicants in circumstances where it had no contact with them (or any person acting on their behalf) and where the applicants were an indeterminate group of individuals unknown to Patty Malones.
Patty Malones submits that any discrimination against the applicants could only be ‘indirect discrimination’ and not ‘direct discrimination’.
This argument is based on the words used in ss 8 and 9 of the EO Act, which provide (relevantly) as follows:
8 Direct discrimination
(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.
Examples
1An employer advises an employee that she will not be trained to work on new machinery because she is too old to learn new skills. The employer has discriminated against the employee by denying her training in her employment on the basis of her age.
2A real estate agent refuses an African man's application for a lease. The real estate agent tells the man that the landlord would prefer an Australian tenant. The real estate agent has discriminated against the man by denying him accommodation on the basis of his race.
…
9 Indirect discrimination
(1)Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice—
(a)that has, or is likely to have, the effect of disadvantaging persons with an attribute; and
(b) that is not reasonable.
Patty Malones submits that the word ‘treat’ in s 8 and the examples of direct discrimination given in the EO Act[37] show that there must be some form of direct contact between the discriminator and the victim. Absent a direct connection, so it contends, a person cannot ‘treat’ another person in any way. This is to be contrasted with indirect discrimination in s 9 of the EO Act which makes no reference to treatment. It submits that whenever there is a ‘blanket condition that captures a people with a particular attribute that is tailored towards a situation where a discriminator does not know personally of the existence of the person or the people’ being discriminated against, such a situation can only be covered by the prohibition against indirect discrimination in s 9.[38] According to Patty Malones, discrimination is indirect discrimination if it is against ‘an undefined proportion of the population united by an attribute’.[39] To hold otherwise, so Patty Malones submits, would deprive s 9 of any utility or meaning.[40]
[37]‘An employer advises an employee that she will not be trained for work on new machinery because she is too old to learn new skills’; and ‘A real estate agent refuses an African man's application for a lease’.
[38]Transcript of Proceeding, Obudho v Patty Malones Bar Pty Ltd (Supreme Court of Victoria, S CI 2015 05724 & S CI 2015 05961, Emerton J, 21 & 22 July 2016) (‘Transcript’) 86.
[39]Ibid.
[40]Notice of appeal dated 23 March 2015.
Patty Malones submits that Edgeley v Federal Capital Press of Australia Pty Ltd[41] provides support for these propositions.
[41] [2001] FCA 379 (‘Edgley’).
In Edgley, the Supreme Court of the ACT was concerned with conditions imposed by a newspaper for the publication of an advertisement for adult services. The passage upon which Patty Malones relies is in the judgment of Beaumont ACJ, where his Honour said:[42]
There is no special statutory definition of the verb to “treat” and it is not a term of art. Its primary dictionary definition is “1. To act or behave towards in some specified way: (e.g.) to treat someone with respect” (Macquarie Dictionary). That definition seems apposite here. Again as noted in Prezzi, above the adverb “unfavourably” appears to have its ordinary meaning. The dictionary definition of the adjective “unfavourable” includes “adverse”, and this seems appropriate here. In other words, s 8(1)(a) is directed at adverse behaviour towards a person, because of an attribute. I emphasise that the conduct must be aimed at, or towards, the person complaining of discrimination.
[42]Ibid 17 [54].
According to Patty Malones, because unfavourable treatment must be directed ‘towards a person’, a connection or nexus between the discriminator and victim is required. It submits that this must take the form of direct contact between the parties or between the discriminator and a person acting as an agent for the victim(s).
I reject the submission that s 8 and the word ‘treat’ requires there to be a direct connection between the discriminator and victim. Edgley does not stand for a proposition of that kind. Behaviour may be directed ‘towards a person’ when it is directed to people that share a protected attribute, whether or not the individuals are known to the discriminator. The word ‘treat’ means, in the context of s 8, to ‘deal with or behave or act towards in specified way’.[43] It is commonplace to speak of governments, ministers and bureaucrats treating groups of people, such as refugees, indigenous or homeless people, in a particular way. Those people may or may not be known to the person or entity meting out the treatment.
[43]L Brown (ed), The New Shorter Oxford English Dictionary (Oxford University Press, 1993).
There is no warrant for limiting the meaning of the word ‘treat’ in s 8 of the EO Act in the manner contended for by Patty Malones.
Moreover, the proposition that there can be no direct discrimination against a group of people with an attribute who are not known to the discriminator is contrary to well established authority.
In Koowarta v Bjelke-Petersen,[44] the applicants challenged the Minister’s refusal to approve the transfer of land to the Aboriginal Land Fund Commission, which they contended was in breach of s 12(1)(d) of the Racial Discrimination Act 1975 (Cth). That provision prohibited a refusal to permit the occupation of land where the refusal was based on ‘the race … of that second person’ (the victim). Mr Koowarta was an Aboriginal man who anticipated using the land as a member of his tribe. In relation to Mr Koowarta’s standing to sue, Stephen J said:[45]
While it is not certain that when he refused approval of the transfer the Minister knew of the existence of Mr Koowarta, he clearly knew that the property was to be occupied by Aborigines. That was the very ground for his refusal. In my view Mr Koowarta’s position as one of the Aborigines whose occupation of the land was prevented by the Minister’s decision sufficiently establishes his standing to sue: he was a “second person” in the terms of s 12(1)(d) of the Act. It is not, I think, to the point that, as a matter of form, what the Minister withheld was approval of a transfer to the Aboriginal Land Fund Commission. The Minister’s reasons for refusal disclose that he regarded approval as involving use of the property by Aborigines and refusal of approval as preventing that use.
…
[The Minister’s] withholding of approval, once explained by reference to the settled policy of his Government, amounted to a refusal to permit that [the use of the land by Aboriginal people] to occur and accordingly constituted a refusal to permit persons, then possibly unknown to him but who in fact included Mr Koowarta, to occupy land by reason of their race.
[44](1982) 153 CLR 168.
[45]Ibid 221.
Similarly, Brennan J held that while the decision was a refusal to transfer the land to the organisation, Mr Koowarta was still a ‘second person’ within the meaning of s 12(1)(d) who ‘was refused permission to occupy’ the relevant land.[46]
[46]Ibid 268.
Patty Malones seeks to distinguish Koowarta on two bases: first, that it did not know who comprised the group that would be attending the event, whereas the Minister in Koowarta knew that the group was composed of individuals who were Aboriginal; secondly, that the Commonwealth legislation did not use the word ‘treat’ and limited indirect discrimination to instances of facial neutrality, whereas the EO Act is broader.
The first basis is contrary to the facts found by the Tribunal. The Tribunal found that while it did not know the identities of individual attendees, Patty Malones knew that a group with a shared attribute — race — would attend the event.
As to the second basis, while s 12(1)(d) of the Racial Discrimination Act 1975 (Cth) did not contain the word ‘treat’, it contained the word ‘refuse’. If an indeterminate group of individuals sharing an attribute can be directly discriminated against by being ‘refused’ something then, equally, they can be directly discriminated against by being treated unfavourably in some other way.
In Cobaw Community Health Services Ltd v Christian Youth Camps Ltd,[47] the Victorian Civil and Administrative Tribunal held that a group of people with a protected attribute refused service by Christian Youth Camps (‘CYC’) because of that attribute were the victims of direct discrimination. Cobaw attempted to book accommodation from CYC order to host an event for a number of same sex attracted young people. An employee of Cobaw, Ms Hackney, contacted CYC to make the booking. She was told that the board of CYC would not permit the accommodation to be used by the group, due to its members’ sexual orientation.
[47][2010] VCAT 1613 (‘Cobaw’).
CYC defended the subsequent claim of discrimination by arguing that it was not the young people who were refused accommodation, but Ms Hackney, and she did not have the protected attribute. Ms Hackney may have been acting as an agent for her employer, but Cobaw also lacked the protected attribute. Judge Hampel rejected this argument in the following terms:[48]
The respondent’s submission that … Ms Hackney was acting as agent of her employer Cobaw, and so Cobaw was the person who was refused services or accommodation relies on a narrow and legalistic interpretation of ‘other person’ or ‘another person’… The fact that Ms Hackney was employed by Cobaw, and the agency principles relied on by the respondents, are not determinative of the question of the identity of the person or group on whose behalf she wanted to make the booking, and whom the respondents refused to provide services to.
[48] Ibid [170].
Judge Hampel identified the group members as the persons to whom CYC refused to provide services.[49]
[49]Ibid.
Patty Malones submits that this holding is distinguishable on the basis that services were refused (directly and in person) to a person acting on behalf of the group members. It further submits that the membership of the group was known to CYC and was homogenous: each of the applicants had the protected attribute. In contrast, in the present case, the group was not homogenous and its composition was not within the knowledge of Patty Malones.
Having regard to the terms of ss 8 and 9 of the EO Act and the relationship between them, Patty Malones’ submission that for there to be direct discrimination there must be a ‘nexus’ in the form of some kind of direct contact between discriminator and victim cannot be accepted. The EO Act, in line with its predecessor legislation and anti-discrimination legislation in other jurisdictions, distinguishes between ‘direct discrimination’ and ‘indirect discrimination’. The characterisation of discrimination as ‘direct’ is based on the relationship between the discriminatory act and the protected attribute, not the relationship between the discriminator and the victim. Thus, the terms of s 8 provide that a person is directly discriminated against when treated unfavourably because of an attribute. The attribute is the reason for the unfavourable treatment, meaning that there is a ‘direct’ relationship between the protected attribute and the discriminatory treatment. In contrast, indirect discrimination involves the imposition of a requirement, condition or practice that is ‘facially neutral’, but has or is likely to have ‘the effect’ of disadvantaging persons with a protected attribute. The condition, requirement or practice applies generally, but its impact or ‘effect’ is discriminatory. While direct discrimination is concerned with disparate treatment of persons based upon their having a protected attribute, indirect discrimination is concerned with the disparate impact on persons of what is a neutral condition, requirement or practice.
This is consistent with anti-discrimination jurisprudence in other jurisdictions.[50]
[50]See for example, James v Eastleigh Borough Council [1990] 2 All ER 607, 611-613, 617, concerning the Sex Discrimination Act 1975 (UK); Waters v Public Transport Corporation (1992) 173 CLR 349 [21]; Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, 184; Sklavos v Australasian College of Dermatologists[2016] FCA 179 [158]; Kiefel v State of Victoria [2013] FCA 1398 [212]; Nojin v Commonwealth of Australia (2012) 208 FCR 1, 69 [233]; Australian Medical Council v Wilson (1996) 68 FCR 46, 63; Robinson v Department of Family & Community Services (Housing NSW) [2014] NSWCATAD 21 (3 March 2014) [56] citing State of New South Wales v Amery & Ors (EOD) [2003] NSWADTAP 16; Ali v State of Queensland [2013] QCAT 319 [51].
In this case, the race of the majority of the persons proposing to attend the event — which was known to Patty Malones — was the reason for their unfavourable treatment (constituted by the cancellation of the event). The Tribunal found that the discriminatory conduct — the cancellation of the booking for the Africa Fest — was directly related to the protected attribute shared by the applicants, that is, their race.
Patty Malones can identify no ‘requirement, condition or practice’ that was imposed by Patty Malones that had the effect or likely effect of disadvantaging the applicants. The cancellation of the booking for the Africa Fest because the majority of those attending would be African does not involve the imposition of a requirement, condition or practice. Patty Malones cancelled the booking because of the race of the majority of prospective attendees. This is direct discrimination.
As a final matter, I observe that the novel thesis put forward by Patty Malones about the difference between direct and indirect discrimination under the EO Act would result in a significant difference in the operation of the EO Act in two near identical examples of conduct that is plainly discriminatory on its face: first, where a person is told by a club owner, ‘You can’t come into my club because you’re African’; and, secondly, where there is a sign at the entrance to the club saying ‘No Africans admitted’. On Patty Malones’ analysis, the posting of the sign would not constitute unlawful discrimination unless it was also unreasonable, whereas there is no reasonableness requirement for the spoken words. There is no logical reason for there to be a ‘reasonableness’ justification in the case of the racist sign. Such a distinction cannot have been the intention of the legislature.
Ground 3 is not made out.
Conclusion on Patty Malones’ appeal
None of the grounds is made out. The appeal is dismissed.
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