Raeburn obo Gaunt v Nelson Bay RSL Memorial Club Ltd (No.2)

[2008] NSWADT 74

CITATION:	Raeburn obo Gaunt v Nelson Bay RSL Memorial Club Ltd (No.2) [2008] NSWADT 74
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Pamela Raeburn obo Victoria Gaunt RESPONDENT Nelson Bay RSL Memorial Club Ltd
FILE NUMBER:	051122
HEARING DATES:	11-13 September 2006, 3 April 2007
SUBMISSIONS CLOSED:	18 July 2007
DATE OF DECISION:	7 March 2008
BEFORE:	Ireland G - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Schneeweiss J - Non Judicial Member
CATCHWORDS:	Disability Discrimination - Registered Club
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Legal Profession Act 2004
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Cleary Bros (Bombo) v Cvetkovski (EOD) [2001] NSWADTAP 10
REPRESENTATION:	APPLICANT J Wormington, barrister RESPONDENT K Edwards, barrister
ORDERS:	1. The complaint of the applicant that she was unlawfully discriminated against as she was informed that she was considered not to be a responsible adult because of her disability, is not substantiated. The complaint be dismissed 2. That the applicant pay to the respondent the costs of the respondent incurred in preparing a defence to the foreshadowed making of a second complaint by the applicant. The amount of those costs to be agreed, or failing agreement between the parties within 21 days of the date of this decision, the amount of those costs to be assessed in accordance with the Legal Profession Act 2004.

REASONS FOR DECISION

Background

1 The inquiry by the Tribunal in this matter relates to a complaint lodged with the Anti-Discrimination Board (the Board) on 11 February 2005, which alleged that the applicant, Ms Victoria Gaunt, suffered unlawful discrimination on the ground of disability in the area of registered clubs.

2 The complaint was lodged by Pamela Raeburn on behalf of her daughter, the applicant.

3 The alleged discrimination arose from an incident at the clubhouse premises of the respondent early on the evening of 5 December 2004.

Claims of discrimination

4 No points of claim or points of defence have been filed by the parties. As a consequence, there has been no specification by the applicant of the nature of the allegations, prior to this hearing.

5 In his opening at the hearing, counsel for the applicant outlined that the case for the applicant consisted of two separate claims of direct discrimination, namely:

(1) the conduct of a staff member, later identified as Jaymie McKenzie, in stating to the applicant that she was not a responsible adult to be in charge of her two year old niece, Jasmine, and her 14 year old foster sister, Amanda, because of the disability of the applicant.

(2) the reaction by the duty manager of the respondent, later identified as Jai Pike, in a telephone conversation with Mrs Raeburn and the applicant’s aunt, Mrs Barbara Zoitas, later in the evening on 5 December 2004, in response to a complaint of discrimination made by Mrs Raeburn to Mr Pike concerning the earlier incident between the applicant and Ms McKenzie, stating that a 16 year old in the club with a child was more responsible than the applicant.

6 Both items of discrimination were brought as claims of direct discrimination under s 49B(1)(a) of the Anti-Discrimination Act 1977 (the AD Act).

7 It is claimed that the discriminating acts were unlawful in breach of s 49O(2)(a) and (c) of the AD Act, in that the applicant, being a member of the respondent club, was denied access or was limited in access to benefits provided by the club (sub-section 2(a)); and was subjected to other detriments (sub-section 2(c)).

8 It was also stated that the applicant relied on s 53 of the AD Act to establish the vicarious liability of the respondent for the unlawful discrimination of its employees.

9 The prosecution of two separate complaints raises a problem, as only one item of complaint was referred to the Tribunal by the President of the Board. The complaint that was referred by the Board is the first item relating to a claim of unlawful discrimination arising out of the alleged conduct of Ms McKenzie toward the applicant.

10 It is necessary for the applicant, if it seeks to pursue the second item of complaint, to make an application under s 103 of the AD Act and to seek from the Tribunal an exercise of its discretion to admit an additional claim to be determined in these proceedings. Counsel for the applicant reserved the applicant’s position to make such an application after all the evidence was concluded.

11 In the event, no application was made by the applicant either at the conclusion of the evidence or in its written submissions. In written submissions, counsel for the respondent made an application for costs for the time spent by the respondent subsequent to the applicant’s opening statement in preparing to answer the second claim. This application prompted the applicant in its submissions in reply to assert that the applicant had not abandoned this second item of complaint but the applicant did not wish to make any submissions in relation to it.

12 It is the view of the Tribunal that it has no jurisdiction to consider or determine the second complaint. It is clear from the report of the President to the Tribunal that only one complaint was referred to it, namely the first item of complaint. It is also clear that the President of the Board did not investigate the circumstances of the second complaint. In these circumstances and in the absence of an application by the applicant under s 103 of the AD Act to add the second item of complaint as an additional complaint, the Tribunal refrains from any further consideration of this item as a separate complaint.

13 The Tribunal does not dismiss from all consideration the allegations of the applicant arising out of the circumstances of the telephone discussion with Mr Pike on 5 December 2004. Those circumstances may, on the applicant’s version of the discussions, contribute to an aggravation of the unlawful discrimination alleged in the first item of complaint.

Admissions

14 The respondent conceded the following facts for the purpose of the proceedings:

(1) On 5 December 2004 the applicant was a member of the respondent club and had been a member for approximately six months;

(2) The applicant was aged 18 years at 5 December 2004;

(3) At 5 December 2004, the applicant suffered a disability within the definition of ‘disability’ in s 4 of the AD Act.

The nature of the applicant’s disability was described in her statement to the Tribunal in the following terms by Mrs Raeburn:

‘She has moderate hearing loss and wears bilateral hearing aids. She has had eight operations to try and correct her hearing impairment. She has also been diagnosed as suffering from Richieri Costa syndrome which is a condition affecting different parts of the body. One of these is Coloboma of the Iris which affects Victoria’s vision in both eyes. She has 10% vision in her right eye and 90% in the left eye so she wears glasses to try and correct her vision. She also has a cleft lip and bilateral cleft palate and has undergone five operations for correction of these deformities. Victoria has been assessed as having mental retardation in that her IQ level has been assessed at 57 by a school counsellor at the local school. She has short stature (five feet), and facial deformities. When talking to Victoria, extra time is needed to allow her to process and understand information …’

The reference by Mrs Raeburn to the applicant’s mental retardation was also referred to in a report of a psychologist, Lisa Phillips, who examined the applicant on 1 March 2006 and reported on her assessment of the psychological state of the applicant following the incident on 5 December 2004. Ms Phillips, under the heading ‘Assessment of Cognitive Functioning’, stated:
‘Mrs Raeburn provided copies of assessment reports completed by school counsellor Ursula Schwartz of Tomaree High School in August 2000. At this time, Ms Gaunt’s cognitive functioning was assessed using the WISC-III (Wechsler Intelligence Scale for Children – Third Ed.). The report states that Ms Gaunt achieved a full IQ within the range of 52-62. This would indicate that at the time of assessment, Ms Gaunt was functioning within the Mild range of Intellectual Disability. Ms Gaunt was aged 14 at the time of assessment and a student at Tomaree High School in the I/O class (a program suitable for students with Intellectual Disability).’
Conflicts in evidence

15 Section 108 of the AD Act requires the Tribunal to determine whether the complaint is substantiated in whole or in part.

16 To reach a conclusion as to the substantiation of the complaint, the Tribunal must determine whether the applicant has established, on the balance of probability, and having regard to the serious nature of the claim, that the claim of unlawful discrimination occurred in the circumstances alleged by the applicant. The applicant bears the onus of satisfying the Tribunal based on this degree of proof that the events which she alleged constituted the unlawful discrimination took place. It is well recognised that the onus of proof described above was established in Briginshaw v Briginshaw (1938) 60 CLR 336. In the context of this inquiry, the following extracts from the decisions of Rich J and Dixon J in that case, must be borne in mind:

Rich J:
‘In a serious matter … the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion.’
Dixon J::
‘… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
17 In this complaint, the evidence of witnesses as to the circumstances of the incident on 5 December 2004 which gives rise to the complaint, differ in material respects.

18 The most contentious differences occur in the evidence of the applicant and the evidence of Ms McKenzie in the details of what occurred when Ms McKenzie spoke to the applicant in the Twin Peak Lounge of the respondent club. Additional critical conflicts are present in the evidence of the applicant and Mrs Zoitas, the aunt of the applicant, on the one hand and the evidence of Ms McKenzie on the other hand, as to the remark allegedly made by Ms McKenzie to Mrs Zoitas, in the presence of the applicant, in the lounge area of the club immediately after the incident in the Twin Peak area.

19 The Tribunal could be assisted in the resolution of the conflicting evidence of the events and statements made in the Twin Peak area, if the other person present at this time had given evidence. That person is Amanda Bright, a foster sister of the applicant who resided with the applicant and who, on 5 December 2004, would have observed and heard what transpired when Ms McKenzie approached the applicant.

20 Ms Bright, who at the time was aged 14 years, was capable of corroborating the evidence of the applicant. This is shown from a statement exhibited to the Tribunal by the applicant. The statement is dated 5 December 2004 at 6.15pm and is signed by the applicant. It was typed by Mrs Raeburn at her home after her conversation with Mr Pike, the supervisor of the club and after Mrs Raeburn had spoken to the applicant and to Ms Bright. It is a one page document and concludes ‘this is what we recall of the incident to the best of our ability. Written by Victoria Gaunt and Amanda Bright.’ Ms Bright did not sign the document. The absence of Ms Bright’s signature was not explained.

21 Also exhibited to the Tribunal by the applicant was a statement made by her and not co-authored by Ms Bright, which she signed on 7 May 2006. This document was also typed by Mrs Raeburn. Its material parts repeat the statements in the joint document dated 5 December 2004. It also included two short paragraphs describing the applicant’s feeling of embarrassment and being upset as a result of the incident on 5 December 2004.

22 At the time of the hearing Ms Bright would have been aged 16 or 17 years. She was competent to give evidence at that time to the Tribunal. She was not called as a witness. The submission in reply by the applicant in referring to the absence of Ms Bright stated ‘Amanda only lived with the applicant’s family for approximately four months, following which the relationship between the family and Amanda broke down and contact with her was lost. It was therefore not possible to call her as a witness.’

23 In view of this explanation, the Tribunal considers it is not open to it to infer that Ms Bright’s evidence would not support the evidence of the applicant. However, the absence of evidence of Ms Bright leaves the evidence of the applicant as to the details of the events in the Twin Peak area, without corroboration. The conflicting evidence of Ms McKenzie is also uncorroborated. This leaves the position that the status of the conflicts in the evidence are to be determined by the Tribunal from the nature of the evidence of these witnesses. It gives emphasis to the onus on the applicant to establish her claim to the satisfaction of the Tribunal on the balance of probabilities.

24 The Tribunal now turns to this task.

Analysis of the evidence relating to the claim of unlawful discrimination

Evidence of the applicant

25 The only direct evidence of the details of the alleged unlawful discrimination is the evidence of the applicant. The applicant exhibited to the Tribunal the two statements referred to earlier and supported by her oral evidence. In giving her evidence, the Tribunal considered that she demonstrated a capacity to understand and respond adequately and fully to the questions that were put to her. She was forthright in her presentation and did not give an impression that she prevaricated in her responses.

26 The applicant stated that early on the evening of 5 December 2004, she came to the respondent club in the company of her mother, Mrs Raeburn, her foster sister Ms Bright, her aunt Mrs Zoitas and the four children of Mrs Zoitas. The three eldest children of Mrs Zoitas were left in the children’s play area in the downstairs section of the club. Mrs Raeburn, Mrs Zoitas, her youngest child Jasmine, aged two years and nine months, and the applicant and Ms Bright proceeded to the upstairs area of the club known as the lounge area where, as Mrs Zoitas described, they partook of their regular Sunday night outing and participated in the raffles conducted by the club. After the raffles Mrs Raeburn and Mrs Zoitas left the applicant with Ms Bright and Jasmine in the Twin Peak area on the upper level of the club and Mrs Raeburn and Mrs Zoitas proceeded to the poker machine section on that level.

27 The applicant stated that she and Ms Bright then sat at a table in the Twin Peak area facing the bar, an area from which drinks were served to patrons in the lounge and Twin Peak area. Ms McKenzie was a bar and gaming attendant at that time attending to tables in the lounge and Twin Peak areas. She was cleaning tables in the lounge area when she said she noticed a child crying near the side of the bar. The applicant stated that Jasmine had walked across to the side of the bar where she fell and started crying.

28 Ms McKenzie went to the table where the applicant and Ms Bright sat. It is at this point that a conflict in the evidence occurs. The applicant related the following conversation with Ms McKenzie. She stated that Ms McKenzie came over to the table and at that point the applicant had stood up intending to go to assist Jasmine who had then stopped crying and had come back towards the table. The applicant described Ms McKenzie as coming up behind her when she stood up and that when she turned around to talk to Ms McKenzie, Ms McKenzie was standing very close to her in a position that she described as ‘in my space.’ The applicant stated that Ms McKenzie asked ‘Are you looking after them?’ The applicant answered ‘Yes I am minding them’ and Ms McKenzie then asked ‘Where is her mother?’ The applicant stated ‘She is in the poker machines’ and Ms McKenzie asked ‘Where?’ The applicant ‘She is in the poker machines’ and McKenzie then said ‘So, she is having a game.’ The applicant answered ‘Yes’ and Ms McKenzie said ‘So. She will be a while.’ The applicant said she replied ‘No, she will be back soon.’ Ms McKenzie then asked ‘What is her name’ and the applicant replied ‘Barbara.’ The applicant then stated that Ms McKenzie said ‘Can you go and get her as she (looking at the younger child) needs to be with a responsible adult.’ The applicant stated that she then said ‘I am 18’ and Amanda Bright also stated ‘Yes she is 18.’ The applicant said that she then stood there for a few seconds undecided as to what she should do and then the staff member said to her in a loud and demanding tone ‘Go and get her now.’ The applicant said that she thought that the staff member would stay with Ms Bright and Jasmine and that she, the applicant, then left to walk across the lounge to the poker machine area where she located Mrs Zoitas.

29 The applicant stated that whilst she and Mrs Zoitas were walking back through the lounge area, Ms McKenzie, in passing them, commented ‘The child needs to be with a responsible adult.’ The applicant described that at that moment she felt physically ill and embarrassed by being told that she was not a responsible adult. She said that she and her aunt walked back to find the children on their own. She said that this further upset her as she had learnt that she should never leave a child unattended. This caused her further upset as Ms McKenzie had not stayed with Ms Bright and Jasmine and had left them unattended.

30 Mrs Zoitas, in her evidence, confirmed that when she was walking through the lounge to the Twin Peak area with the applicant, Ms McKenzie passed them and said words to the effect ‘The child needs to be with a responsible adult.’ Mrs Zoitas said she responded by saying ‘I know’ and then kept walking but not knowing what had happened. She said that when returning to the table in the Twin Peak area she found Jasmine was with Amanda and that they were okay but that no other staff member was around at that time. Mrs Zoitas said that she then decided to go and collect her other children from the downstairs care area ‘As I thought that my time was up to get them from the ‘Kids Club’.’ She said that the applicant, Ms Bright and Jasmine came with her to collect the other children and that on the way down the stairs the applicant and Ms Bright told her what had happened.

31 Mrs Zoitas also stated that as they were making their way home in her car the girls talked more about what happened and they spoke about the matter further when they got home. She said that the more the applicant discussed the matter, the more upset she became.

32 Mrs Zoitas made no attempt to contact Mrs Raeburn who had continued to operate the poker machines in the poker machine area whilst the episode in the Twin Peak area took place and after Mrs Zoitas had taken the children back to the house in which Mrs Raeburn, Mrs Zoitas and her children lived together. Mrs Raeburn stated that whilst she played the poker machines she kept a constant look out for the children in the Twin Peak area and when she failed to sight them, she phoned Mrs Zoitas who told her that she had picked up the children and brought them home and that there was a problem and that Mrs Raeburn should come back to the house. This Mrs Raeburn did.

33 Mrs Raeburn stated that when she arrived at the house she found that the applicant was sitting in the lounge, in tears and having trouble breathing. She stated that Amanda Bright told her that the applicant was told that she was not a responsible adult. Mrs Raeburn and Mrs Zoitas decided that they should ring the respondent club and she spoke to Mr Jai Pike, the evening supervisor on duty at the time. Mrs Raeburn stated that she told Mr Pike that her 18 year old daughter was disabled and sometimes misunderstands things but had been told by one of the staff that she was not a responsible adult and that she was phoning to sort it out as her daughter was very upset. Mrs Raeburn outlined to Mr Pike what her daughter had told her had occurred in the Twin Peak area of the club. Mrs Raeburn stated that in response Mr Pike said ‘The staff member was right: A responsible adult would not have left the child unattended, even if demanded by a staff member. That proves that she is not a responsible adult.’ And that subsequently Mr Pike said ‘There are new rules about responsible adults in clubs that came out on Friday so if a staff member said your daughter is not a responsible adult then the staff member would be right.’ Mrs Raeburn said she then asked Mr Pike to explain the term ‘responsible adult’. And that Mr Pike responded to the effect ‘The club rules state that a person under the age of 18 has to be with a responsible adult who is either a parent, a person residing at the same address or a guardian.’ A debate then ensued between Mrs Raeburn and Mr Pike concerning the applicability of that definition to the applicant.

34 At one time Mrs Zoitas took over the phone and had a conversation with Mr Pike. Mrs Zoitas said that she asked Mr Pike to repeat what he had said to Mrs Raeburn concerning a responsible adult. Mrs Raeburn then took back the conversation with Mr Pike and she said that Mr Pike, at her request, repeated what he had said earlier that ‘A responsible adult is a person who has to be either the parent, resides with, or be a guardian.’ Mrs Raeburn said that she then said to Mr Pike ‘So you are saying that my daughter is not a responsible adult in the eyes of the club and a 16 year old with a baby is a responsible adult. I don’t believe this.’ And that Mr Pike replied ‘Yes the 16 year old would be more responsible.’ Mrs Raeburn said she replied ‘So your staff member asked a responsible adult to leave children unattended in a club lounge room, talk about being a responsible adult. Why didn’t she stay with the kids if there was a problem or get another staff member to put over the speaker that the mother returns to the lounge room or go herself in the gaming room to find the mother of the children.’ Mrs Raeburn said at that stage she was becoming upset and so she ended the telephone conversation.

35 On the following day, 6 December 2004, Mrs Raeburn, together with Mrs Zoitas and Jasmine and the applicant, attended at the club and handed a letter written by Mrs Raeburn to the Acting Manager, Mr Anthony Watson. The letter contained a formal complaint concerning the treatment of the applicant on the previous evening. The letter referred to discrimination and requested a response in the near future. Mr Watson arranged to meet with the group in the coffee lounge of the club where they had a discussion about the events of the previous evening. In the discussion, Mrs Raeburn requested that she have access to a video which would have been taken from the security camera in the ceiling of the lounge area of the club in the expectation that it would depict what had occurred in the Twin Peak area. Subsequently the management of the club stated that the security camera was unable to capture the events in the Twin Peak area and a video was not made available to Mrs Raeburn.

36 Mrs Raeburn stated that over the next couple of weeks she spoke with different supervisors at the club concerning the issues. She stated that she became unhappy with the inaction from the club and one of the supervisors told her that he would investigate the matter and arrange for Mr Watson to phone Mrs Raeburn which he did the following day. The management of the club carried out an investigation of the complaint but took no action in relation to it as Mr Watson stated they considered that they were not able to reconcile the different versions of the events of 5 December 2004 given by the applicant and Ms McKenzie.

37 Ms McKenzie exhibited an affidavit to the Tribunal and gave oral evidence before it. She gave a different version to that of the applicant and Mrs Zoitas as to what was said by her on 5 December 2004.

38 Ms McKenzie gave her evidence in a forthright manner. She was positive about her recollection of the conversations and the events on that occasion. The Tribunal could discern no aspect of her evidence or the presentation of her evidence that would indicate that she was attempting to distort or misrepresent the details of her evidence. Ms McKenzie stated that between 6.30pm and 7.30pm she was located in the club’s main lounge area clearing and cleaning tables. She said she noticed a small girl fall to the ground and that the girl cried. Ms McKenzie said that she walked over to the child and asked ‘Are you okay, where is your mum?’ She said the little girl did not respond but continued to cry. Ms McKenzie stated she noticed the applicant sitting at a table nearby and she went and had a conversation with the applicant. Ms McKenzie said that she did not come up behind the applicant but rather approached her from the side of the table. She said that when she approached the applicant, the applicant said ‘I am 18’. Ms McKenzie said ‘Do you know where her mum is?’ and the applicant replied ‘Playing the poker machine’ and Ms McKenzie then said ‘Could you please go and get her?’ She said that the applicant got out of her chair and went towards the gaming area. She said she saw her enter the gaming area and that she then followed her to let the child’s mother know that her daughter was upset. When she reached the gaming area, a conversation took place, in the presence of the applicant, between Ms McKenzie and Mrs Zoitas. Ms McKenzie said she said ‘Sorry, it’s just that children need to be with their parents at all times.’ And that Mrs Zoitas replied ‘Okay.’ She stated that at no time did she talk to the applicant in a disrespectful manner and at no time did she witness either the applicant or the child’s mother to be upset.

39 Ms McKenzie denied that at any time did she use the words ‘responsible’ or ‘adult’. She also denied that she said to the applicant ‘So, she is having a game’, ‘So she will be a while’, ‘What is her name’, ‘Can you go and get her she needs to be with a responsible adult’, ‘Go and get her now’, ‘The child needs to be with a responsible adult’. Ms McKenzie also denied Mrs Zoitas’ statement that when she returned to the lounge area she noted there were no other staff members around at that time. Ms McKenzie said this was not correct as there were numerous staff members in the vicinity of the lounge area including two members of the staff behind the bar who would have been approximately 5 metres away from the table at which Amanda Bright and Jasmine were located.

40 Ms McKenzie stated that she attended Tomaree High School and that she was one or two years ahead of the applicant. She said that she knew the applicant to say hello to when they were at school but she was not aware that the applicant had disabilities or that she attended the special unit of Tomaree High School. She said that when she saw Jasmine was distressed she was not aware that the applicant was looking after her. She said that Jasmine had not returned to the table with the applicant when Ms McKenzie first went to the child. She said that she was aware of the definition of ‘responsible adult’ in the Registered Clubs Act and that it includes a parent, a step-parent or guardian of a minor. She said she had learnt this in some of the courses of training that she had done before she took up her employment at the club in June 2004.

41 She stated that it was not apparent to her that Victoria was the guardian of Jasmine in the Twin Peak area on 5 December 2004 and that this was especially the case when she asked where the child’s mother was and was told that she was in the poker machine area. She said that she thought that children had to be with their parent or a guardian. She denied that she knew that the applicant had a disability or that she considered that for this reason she was not a responsible adult.

42 Later in her evidence she stated that when she approached the applicant in the Twin Peak area, she considered that she was a responsible person and she was aware that Jasmine was with the applicant and Amanda Bright. She explained that when she saw Jasmine was upset her natural instinct was to ask where her mother was and that when she saw the child fall over she thought straight away ‘Where is her mother’ and that she just wanted to let her mother know the child was upset. When pressed in cross-examination as to why she did not consider that the applicant was able to look after and console Jasmine, Ms McKenzie stated that she considered the applicant is a responsible adult ‘My interpretation of children on the premises, they have to be with their parents or legal guardian’ and that her understanding of the legal requirement was that children in the club needed to be with their parents, their guardians or step-parents. She further stated that her understanding of a guardian is someone who is legally responsible for the child. Ms McKenzie was cross-examined at length about her interpretation and understanding of the term ‘responsible adult’. She did not waiver from her view that the term referred to parents and guardians.

43 It is the view of the Tribunal that irrespective of what interpretation Ms McKenzie put on the term ‘responsible adult’, when Ms McKenzie approached Jasmine and subsequently approached the applicant she did not have in her mind the need to consider whether the applicant was a responsible adult but her focus was to ascertain where Jasmine’s mother was and to have the mother located and returned to comfort Jasmine. In those circumstances the Tribunal considers it is not plausible that Ms McKenzie would have used the technical phrase ‘responsible adult’ when responding to the need for comforting and caring for Jasmine.

44 The other divergence in the evidence of Ms McKenzie and the evidence of Mrs Zoitas and the applicant, relates to the allegation that when the applicant had located Mrs Zoitas in the poker machine area and they were returning to the Twin Peak area, that Ms McKenzie, who was following the applicant to ensure that the mother could be located, said ‘The child needs to be with a responsible adult.’ Ms McKenzie denied that she made that statement and said that what she said was ‘The child needs to be with its mother.’

45 For the reasons expressed earlier, the Tribunal is not satisfied that in the circumstances Ms McKenzie would have used the technical term ‘responsible adult.’

46 Mrs Zoitas was not an impressive witness. She was unable to relate or recollect the detail of the events or the discussions on 5 December 2004. She was extremely nervous and was not able to recall details of conversations. In general, the Tribunal finds that it must reject Mrs Zoitas’ evidence as unreliable where it is in conflict with the evidence of Ms McKenzie.

47 Ms McKenzie’s position can be best summed up in her own words in answer to a question in cross-examination. She said ‘… it’s hard to be on the spot and go every little word, you know, like I was 18, I was working a bar, I wasn’t going to go and say it so procedurally by the book. I don’t go up to people and say ‘responsible adult.’ I just said ‘kids need to be with their parents.’’

48 The Tribunal has formed the opinion that in all respects where the evidence of Ms McKenzie conflicts with the evidence of the applicant and Mrs Zoitas, that the evidence of Ms McKenzie should be preferred.

49 It is acknowledged that the disability of the applicant affects her cognitive function and it is also clear to the Tribunal, that the applicant is strongly influenced by her mother, Mrs Raeburn. It is understandable that Mrs Raeburn would not only be protective of her daughter, but was sensitive to the need to prompt the applicant in relating events and describing situations. This was apparent from evidence of Mr Watson, who stated that at his meeting on 6 December that Mrs Raeburn, from time to time, interposed when the applicant was telling him what occurred on the previous evening. The psychologist, Ms Phillips, in her report, referred to the fact that Mrs Raeburn accompanied the applicant during the session when Ms Phillips was assessing the applicant for the purposes of Ms Phillips’ report and on a number of occasions Mrs Raeburn added background information and other aspects to the information that Ms Phillips sought from the applicant.

50 The physical upset experienced by the applicant when she was relaying to Mrs Zoitas the events in the Twin Peak lounge when driving home with Mrs Zoitas in her car and then subsequently at her home and especially when relaying to Mrs Raeburn what had occurred, was explicable by the stress caused to the applicant in misconstruing that she would be judged as not capable of adequately looking after Jasmine or her foster sister, Amanda, in the Twin Peak area. Prior to that time, the applicant was proud of the fact that she was considered by her mother to be sufficiently capable of regularly minding at home, Amanda and the children of Mrs Zoitas, when both Mrs Raeburn and Mrs Zoitas left the children in the applicant’s care. The evidence shows that having regard to the disabilities of the applicant that all the family considered that it was a special achievement of the applicant that she had developed the capacity to be able to be left to care for the children.

51 Having regard to the events that occurred on 5 December 2004 in the Twin Peak area at the club, it is plausible that the applicant’s upset related to the concerns she had that she would no longer be considered capable of looking after the children. The applicant expressed particular concern that when Ms McKenzie told her to go and get Jasmine’s mother from the poker machine area and she found that Ms McKenzie had followed her to that area, that Jasmine and Amanda Bright had been left unattended. The applicant’s evidence showed that she interpreted the leaving of the children as a reflection on her and her ability to mind the children adequately. She was particularly distressed that the children had been left alone notwithstanding that Ms McKenzie stated that there were a number of employees of the club within sight of and in close proximity to Amanda Bright and Jasmine at that time.

52 The Tribunal considers it is also significant that when Mrs Zoitas came back with the applicant to the Twin Peak area and collected Ms Bright and Jasmine, that Mrs Zoitas made no attempt to then contact Mrs Raeburn who was still operating in the poker machine area, and that Mrs Zoitas collected her other children and returned home with the applicant and the children without any reference to Mrs Raeburn. It is unlikely that Mrs Zoitas would have adopted this approach without reference to Mrs Raeburn if at that point of time the applicant was showing signs of distress or there was any other indication to her of untoward events having recently occurred in the Twin Peak area.

53 It was not until Mrs Raeburn had returned to the house that any reference arose concerning the use of the term ‘responsible adult.’ Although that term is referred to in the statement completed at 6.15pm on 5 December 2004 jointly by the applicant and Ms Bright, that statement was not typed by Mrs Raeburn until after she had had her conversation on the phone with Mr Pike. As will be referred to later, the conversation with Mr Pike evolved around interpretation of the phrase ‘responsible adult.’ Having regard to all the background facts, it is quite likely in the view of the Tribunal that the phrase ‘responsible adult’ was adopted by the applicant, at the prompting of Mrs Raeburn, after her conversation with Mr Pike in the applicant’s recollections of the details of her conversations with Ms McKenzie earlier in the evening. Similarly, Mrs Zoitas, also adopted that phrase in her recollection, at the prompting of Mrs Raeburn, of what was said by Ms McKenzie to Mrs Zoitas and the applicant in the poker machine area.

54 In relation to the telephone discussion on the evening of 5 December 2004 between Mrs Raeburn and Mrs Zoitas with Mr Pike, the version of the conversation by Mrs Raeburn has already been set out. Mr Pike, in his evidence, exhibited an affidavit and gave oral evidence. Prior to him giving evidence, he indicated to the Tribunal, through counsel for the respondent, that he had a reluctance about answering questions because of his concern arising out of the opening statements of counsel for the applicant that potentially Mr Pike would bear liability for unlawful discrimination arising out of the foreshadowed second complaint. Mr Pike expressed reluctance, in those circumstances, to give evidence when his evidence might be used against him if a further complaint was made arising out of his conversation with Mrs Raeburn and Mrs Zoitas.

55 In his affidavit, Mr Pike said that in his discussions with Mrs Raeburn and Mrs Zoitas, he explained the meaning of ‘responsible adult’ under the Registered Clubs Act. At one stage in a discussion with Mrs Raeburn he said ‘I questioned, is this responsible regarding leaving the child with a 16 year old.’ He stated that during his conversation with Mrs Raeburn he did not at any time state that the applicant was not a responsible adult and he denied that he said that a 16 year old with a baby was more responsible than the applicant. Mr Pike also stated that having read the statement of Mrs Zoitas he denied that he said to her that the applicant was not a responsible adult and he denied also stating to her that a 16 year old with a baby was more responsible than the applicant.

56 In his oral evidence to the Tribunal Mr Pike had difficulty recollecting details of the conversations. His evidence in that regard was not helpful. It is clear to the Tribunal that the telephone discussions developed around the allegation by Mrs Raeburn that the applicant had been told that she was not a responsible adult and the conversations then developed into a debate about the meaning of that phrase especially in its application to the Registered Clubs Act and to the rules of the respondent club. Having regard to the reluctance of Mr Pike to be expansive in giving his oral evidence, the Tribunal would prefer the versions of the conversations related by Mrs Raeburn and Mrs Zoitas to Mr Pike’s version of the conversations, whenever there is a conflict in those versions. It is quite probable that Mrs Raeburn and Mrs Zoitas misunderstood Mr Pike when he referred to a 16 year old mother of a child. They say that he made that reference in the context of saying that such a person would be more responsible than the applicant. This would be an extraordinary statement for a person in Mr Pike’s position to have made in the face of an allegation that the applicant had been told she was not a responsible adult.

57 As there has been no application to include a second complaint arising out of the alleged content of the conversations between Mrs Raeburn and Mrs Zoitas and Mr Pike, the question whether any remarks made by Mr Pike in those conversations were discriminatory is not an issue which the Tribunal must decide. Even if the versions of the conversations given by Mrs Raeburn and Mrs Zoitas are the correct version and if the contents of those conversations are discriminatory, any claim of the applicant arising out of those comments are a matter for a separate complaint and do not impact directly on the determination of whether the matters alleged in relation to the first complaint of discrimination, are substantiated.

Conclusion on the issues of conflict of evidence

58 The one item of complaint before the Tribunal for determination relates to the claim that the applicant was unlawfully discriminated against on 5 December 2004 when, in the Twin Peak area of the respondent club, she was informed by a staff member, Ms McKenzie, that she was not considered to be a responsible adult because of her disability.

59 If, in the opinion of the Tribunal the evidence is insufficient to substantiate this claim, the complaint must fail at this point. Issues concerning the application of s 49B(1)(a) and s 49O(ii)(a) and (c) of the AD Act do not arise for consideration if, on the evidence, the allegations supporting the claim of unlawful discrimination are not substantiated. In the view of the Tribunal even if the facts advanced by the applicant were accepted there are issues that would have to be considered and determined as to whether those facts would constitute discrimination within the terms of s49B(1)(a) as the facts as advanced by the applicant do not, ipso facto, demonstrate that a comparison with how, in the circumstances, a person who was not disabled would have been treated less favourably than the manner in which the applicant was treated on that occasion. There would also be issues to be determined as to whether if the comparison showed that there was less favourable treatment of the applicant that that treatment occurred on the ground of or as a result of the disability of the applicant. Further issues would then need to be determined as to whether in fact the applicant suffered a relevant loss of benefits or detriment arising out of any discriminatory conduct found against the respondent.

60 In the view taken by the Tribunal, these further issues do not arise.

61 The Tribunal is of the view that having regard to the onus on the applicant of satisfying the Tribunal that on the balance of probability and having regard to the seriousness of the allegations, that she was told by Ms McKenzie, either in the Twin Peak area or later in the poker machine area, that she was not a responsible adult or that any remarks of Ms McKenzie’s to the applicant or to Mrs Zoitas on those occasions were open to an inference that the applicant was not a responsible adult, is not established. The Tribunal accepts the evidence of Ms McKenzie, in preference to the evidence of the applicant or to the evidence of Mrs Zoitas, that on those occasions Ms McKenzie did not use the phrase ‘responsible adult.’

62 The Tribunal is of the view that the applicant became upset and distressed, not as a consequence of the use of those words to her, but rather because the applicant misconstrued the whole of the events as a reflection against her ability to adequately look after her niece and her foster-sister. Having regard to the background of the applicant, an adverse reflection against the applicant’s qualification to adequately look after the children was a dire consequence to her as it reflected on her capacity generally to look after children, a capacity which she has had to establish by special application beyond what a person without her disabilities would have to develop.

63 Mrs Raeburn, in her evidence, demonstrated that she was in dire financial circumstances such that she was not able to meet the considerable costs required to cover future special dental and surgical procedures to assist the applicant to overcome her cosmetic disfigurements. Mrs Raeburn had an expectation that those costs would be met out of an award of compensation from a successful result in these present proceedings. Such a motivation may well have caused Mrs Raeburn to misconstrue her daughter’s distress and to reconstruct by reference to the phrase ‘responsible adult’, the circumstances of the events in the Twin Peak area and to implant the use of that phrase into the applicant’s version of what was said by Ms McKenzie on that occasion.

64 The conclusion of the Tribunal is that the applicant has failed to discharge the onus of satisfying the Tribunal that on the evening of 5 December 2004, the complaint of the applicant that she was unlawfully discriminated against by being told that she was not a responsible adult has not, on the evidence, been established or been substantiated. It follows that the complaint has not been substantiated. As a result the Tribunal orders that the complaint of the applicant against the respondent be dismissed.

Costs

65 In its submissions, the respondent sought, in the event that it should succeed in its defence of the complaint, an order from the Tribunal that the applicant pay its costs in the defence of the complaint.

66 The submission relates mainly to the costs of the respondent associated with the need to focus on the foreshadowed application by the applicant to include an additional complaint arising out of the telephone conversation and comments allegedly made by Mr Pike. It was not until the applicant stated in its written submissions in reply which were filed on 18 July 2007, firstly, that the applicant clarified it had not abandoned the second complaint, and secondly, that it did not wish to make any submissions in relation to the second complaint. The position is therefore that the applicant has not pursued the second complaint before the Tribunal and yet the respondent would have had a need since the first day of hearing when the matter was first raised by the applicant, to spend time and cost in focussing on its defence on a second complaint if an application had been made subsequently by the applicant to include that complaint in the hearing before the Tribunal.

67 In its submission in reply in relation to the claim for costs, the respondent stated ‘there is no basis for alleging that costs should be ordered in relation to the second complaint on the grounds that it has ‘no tenable basis in fact or law’ particularly since this aspect of the applicant’s case was included in the referral to the Tribunal by the President to which see paragraph 3 above. In paragraph 3 the comment is made by the respondent ‘the second complaint is not a separate complaint made by the applicant but one of two issues referred to the Tribunal by the President, on his own notion, as part of one original complaint relating to the incident on 5 December 2004. This is clear from page 4 of the President’s report filed on 28 September 2005.’

68 The Tribunal has already dealt with the aspects of the second complaint arising out of the President’s report. It is the view of the Tribunal that the President’s report does not contain a second complaint. The President’s report does refer to the allegations on behalf of the applicant concerning the statements of Mr Pike in his telephone conversation on 5 December 2004 but it is clear that the President does not formulate out of those comments a second complaint of discriminatory conduct that the President has either investigated or has referred to the Tribunal.

69 This aspect of the applicant’s case comes within the ambit of one of the exceptions to the rule that generally an order for costs will not be made by the Tribunal. That exception is expressed in Cleary Bros (Bombo) v Cvetkovski (EOD) [2001] NSWADTAP 10 as an aspect which is ‘over and beyond a normal course of circumstances.’ In the experience of the Tribunal it is exceptional to have a matter raised at the opening of a hearing concerning the foreshadowing of an application to introduce an additional complaint, subsequently to have no application received for the adding of the additional complaint and then to have in the submissions in reply of the applicant, statements that although the complaint is not abandoned, it is not intended to make representations concerning it. They are all matters over and above normal circumstances. It is to be expected that having been confronted with the prospect of the addition of a second complaint, at the opening of the hearing, that the respondent would need to spend extra time and expense in considering and developing responses to such a complaint if it were raised.

70 In the view of the Tribunal these are all circumstance which justify the Tribunal in making an order that the applicant should pay the costs of the respondent which it incurred over and above the costs which it would have incurred in defending the first claim, in preparing to defend the second complaint.

71 The respondent in its submissions assessed these additional costs as referrable to one third of the total costs incurred by the respondent in its overall defence of the complaint. No supporting material was supplied to the Tribunal to justify the assessment of one third of the total costs and the Tribunal is not in a position to endorse this form of estimate. The Tribunal however does consider it is justified in making an order in favour of the respondent.

72 The Tribunal orders that the applicant pay to the respondent an amount representing the additional costs incurred by the respondent in preparing its case in answer to the foreshadowed addition of an additional complaint to be brought by the applicant before the Tribunal. If the parties are unable to agree on the amount of such costs, the Tribunal directs that the amount of such costs be determined in accordance with the provisions of the Legal Profession Act 2004.

Orders

1. The complaint of the applicant that she was unlawfully discriminated against as she was informed that she was considered not to be a responsible adult because of her disability, is not substantiated. The complaint be dismissed.

2. That the applicant pay to the respondent the costs of the respondent incurred in preparing a defence to the foreshadowed making of a second complaint by the applicant. The amount of those costs to be agreed, or failing agreement between the parties within 21 days of the date of this decision, the amount of those costs to be assessed in accordance with the Legal Profession Act 2004.