Rana v Skycity Adelaide Pty Ltd - [2010] SAEOT 4

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
RANA v SKYCITY ADELAIDE PTY LTD
[2010] SAEOT 4
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Ms H Jasinski
20 October 2010
HUMAN RIGHTS - DISCRIMINATION
Allegation of discrimination following an incident at the Casino - evidence given by complainant was disputed by witnesses to the incident - finding that there was no refusal or failure on behalf of the respondent to provide the complainant with goods or services - all claims of discrimination under the Equal Opportunity Act dismissed.
Equal Opportunity Act 1984, referred to.

RANA v SKYCITY ADELAIDE PTY LTD
[2010] SAEOT 4

By notice dated 18 June 2010, pursuant to s 95B of the Equal Opportunity Act 1984 (the Act), the Acting Commissioner for Equal Opportunity referred to this Tribunal a complaint of Mr Ranjit Rana against Skycity Adelaide Pty Ltd (Skycity). Skycity manages the Adelaide Casino on North Terrace, Adelaide (the Casino).
Mr Rana had lodged a written complaint with the Commissioner dated 16 April 2010. On the complaint form, Mr Rana had written:
I went to Casino yesterday to buy coffee as I had low sugar attack due to my diabetes. I was approached by security for being drunk. I cannot drink and did not drink alcohol. I was manhandled and harassed and I was forced to leave under threat of Police being called. I left to report the matter to Liquor Licensing Commissioner for unreasonable behaviour. I was also told by them I was drunk and the conduct of casino was reasonable. I went to Police and they also told me the same. Thus, I have come to you after 3pm of yesterday’s problems.
Security camera is evidence : 3:00, 15^th April.
On the complaint form, under the question “What factors motivated you to lodge this complaint?” Mr Rana had written:
I felt humiliated and harassed for being old, Asian and having diabetes.”
Mr Rana sought an apology and compensation.
At the hearing of the matter, Mr Rana represented himself. Mr Rana gave evidence, and called Mr Spinelli, an Acting Shift Manager at the Casino. Mr Rana also tendered numerous documents, many of which were not relevant to his claim. Mr Lamb represented Skycity. Mr Mibus, a Security Shift Manager, Mr Porter, a Security Officer, Ms Macauley, a Security Officer and Mr Clark, and Acting Pit Manager, all of whom are employed by Skycity, gave evidence in the respondent’s case, as did Mr Kurko, a retired manager of the Casino inspectorate at the Office of the Liquor and Gambling Commissioner.
On the complaint form, Mr Rana ticked the boxes to indicate that he thought that he had been discriminated against because of his disability/illness, race, religious dress and age. He ticked further boxes to indicate that he thought that he had been sexually harassed, victimised because he made a discrimination complaint, victimised for being a whistleblower and treated unfairly on account of “having a deed of settlement in a court action”.
The Evidence
In his evidence before us, Mr Rana described an alleged incident at the Casino in 2006 which led to proceedings in the Federal Magistrates Court. Mr Rana indicated that that matter settled. After that, Mr Rana said that he stayed away from the Casino for a year and a half. However, Mr Rana said, in April 2010, he was induced back to the Casino. There was some confusion at times during the hearing of the matter about the date of the incident. We find that the only incident involving Mr Rana at the Casino which is relevant to the complaint the subject of these proceedings occurred on 15 April 2010, and that wherever a witness has referred to the incident occurring on 14 April 2010 or 13 April 2010, they are honestly mistaken.
In evidence, Mr Rana said that upon his return to the Casino in April 2010, he was having a glass of red wine when he met an Indian friend who works at the Casino, and this friend gave him tea in a beer glass. Mr Rana said that he was having a low blood sugar attack on the day in question, so that events were unclear to him. He thought that his friend may have bought him a beer, in the belief that beer contains sugar, which might improve his blood sugar condition. Mr Rana said that he was on the ground floor of the Casino when:
"A“… somebody came down with the security, three, four of them. I cannot remember how many men, how many women, or what, and I remember then telling my friend, to bug off, and there were three or four people, you know, asking me “You are drunk, you are drunk, you must go, you must go”, something like that. I said “I’m not drunk” they said “No, no, no, you are drunk, because we’re expert, we deal with drunken people. We know you’re a troublemaker, you’ve got to go.” I said I’m not drunk and I… to walk in a straight line. I mean, they humiliated me in front of lot of regular people that I associate with because as I said, I have been going there since 1985, and they made me walk in the straight line, and then they told me “You are not drunk, then you can stay, but we suggest that you drink your beer and then you just get out, all right?” and “They won’t serve you any beer, they won’t welcome you anymore”. That went in a scruff manner, in the guise of politeness, they told me that. And I said “All right, I’ll go and I’ll never come back but you will have to bear the consequence because I reminded them that I had a deal, and that a part of the deal was that Mr Martin – Tom Martin from Minter Ellison – told me that if I had any problem, I could ring him. So I told the security people to ring Mr Tom Martin. They said they won’t do that, so when I was walking from the poker machine and then the stairs there for additional extension of the future of the matter where there were a lot of that croupier spinning roulette wheel, then when I was walking there, I heard somebody crack at me, you know, with a racial joke.
QWhat did they say.
AThey said “Black shit, black rubbish”, you know, like that.
QWho said that.
AWell, from the pit of the croupier. I don’t know who they were, and one Saturday, I verily remember it was a pit boss and he said “you’re back there again, are you, black shit?” that’s what he told. I said I’m not going there because I had nothing to play that day. I had no lesson, no quality lesson play in croupier because I just didn’t have the money. I just had about $50 probably to play the poker machine and when I played, I lost it and I just had a drink, red wine, that a bouncer was given to me indirectly.
QThis all happened on 14 April 2010, to you.
AYes.
MEMBER JASINSKI
QWhat was it that the person that was in the pit – what was it that he said to you.
AHe said “The black suit is in the black rubbish bin”, something like that, but I did not see any black fellow apart than, you know, me and there were nobody playing any game or anything like that and there was just three or four of those people in the croupier thing just hanging around and just cracking joke at my expense. I had nothing to do with them, I was just –
HER HONOUR
QBut that’s all you heard, is it.
AYes, indirectly, because I had to cross them otherwise there was no other way for me to go because the security had already sounded me that I should butt off because they would not sell me another drink, not even a glass of water. That was how welcoming they were. So I had to go. So I went there and I left the entrance from the – main entrance, meaning that I had to come to the North Terrace. Then I realised that I was short of cash and I realised that the closest bank teller there was was actually in the hall, the other side, near the parliament side of entrance of the casino, because I had gone to the bank. So I had to go to the Commonwealth ATM machine, which is also housed inside the casino facing the Parliament House. When I went there another security guard, who amongst those who had encountered me when I was having low sugar attack – yeah, I vaguely – still confused but vaguely remember it could have been me, but he came and told me “Hey, you cannot come here, you’ve got to move”. I said “I have to go and pull some money out” and then he said “No, no, no, no, you’ve been complained by boss that you sounded profanity at him, so we can’t allow you even to enter this building, even though there might be ATM”. And then he said “The best thing is for you, Mr Rana, since you are a crazy is to bar yourself”. I said “Why would I want to do that?”, and he said “I say this to you, that would be the best way forward for you, otherwise you will be humiliated, won’t you, every time you come over here, you know, we will – everything will be in our discretion, you can’t come in here. I say this to you, you bar yourself.” I said “Why would I want to bar myself, you tell me?”. He said “That is the best way”. I said “I have never been barred by anyone, you are not my grandfather, you are not my this, that, why should I bar myself?”. He said “Because you are ugly or buffoon, you know, a black man, you don’t wear three-piece suit, you are ugly, you are black, a piece of shit”, all of this verbal attack. I said “What do you mean I have to bar myself?” He said “There is a special paper, if you just sign on the dot, everything will be taken care of, no more litigation, no more this, you help yourself, we help ourselves”. I said “Show me the paper”. So they went and brought paper, you know, five, six of them, and they start reading me this and I look at that and I said “I’m not going to sign” and I walked off, you know, and I went straight to Hindley Street Police Station. I told them that I was attempted threats and, you know, they touch me, that is, I did not invite them to touch me. The police said “Well, let me ring the casino”. So they rang the casino and the head of the security operation told the police I was drunk. So the police told me “We can’t deal with you, Mr Rana, you are drunk”, so I was humiliated again.
QThat is all on 14 April 2010.
AYes. Then I went to the liquor commissioner’s office with this view. When I went there, they seriously took my case, because I know the casino inspector from the liquor commissioner’s licence, a Mr Kurko, and he said “I get back to you” and Mr Kurko was not – when that incident happened, obviously he had to make inquiry with the casino and the casino security told them that I was drunk, so again, Mr Kurko said “That’s the story, you don’t have any evidence”. So what I can do? I said “You’ve got the power, seize their video and have a look whether I was drunk or not”. Same kind of thing, they did and in the appeal book which I have tendered you, same kind of photograph, inconclusive, neither am I drunk or otherwise because as you ought to know there was a section under the Liquor Licensing Act, I think s.128, which says how do you, you know, objectively, subjectively prove one is drunk or otherwise, apart from somebody perceiving blow your breath on me, drunk bad breath of alcohol, that means drunk, walking a straight line. There was no meter, like drink driving, there was no blood test. So what is drunkenness, is as wide as the sky.
The only other witness called in Mr Rana’s case was Mr Spinelli, an Acting Shift Manager at the Casino. Mr Spinelli said that he was not involved in the incident on 15 April 2010. He was at work at the Casino that day, but had no recollection of seeing Mr Rana. Where Mr Spinelli’s evidence differs from Mr Rana’s, we prefer Mr Spinelli’s account. There was no basis for Mr Rana’s belief that Mr Spinelli prompted the assessment of Mr Rana for intoxication on 15 April 2010.
Mr Rana tendered several medical reports, of which more will be said below, together with other documents, many of which pertained to the proceedings concerning the alleged incident in 2006, and other proceedings.
Mr Lamb called Mr Mibus, a Security Shift Manager at the Casino. Mr Mibus showed closed circuit television (CCTV) footage. The footage had been complied from footage taken from several of the Casino’s security cameras in relation to 15 April 2010. We find that the footage was genuine, and we do not accept Mr Rana’s allegations that it was falsified. We accept that the footage showed Mr Rana at the Casino on the day in question. Mr Rana asserted from time to time during the hearing that the man in the footage was his cousin or his uncle, but we are satisfied that the man shown in the video was the complainant in this matter.
The footage showed Mr Rana interacting with a cashier and then going to play a video gaming machine (a VGM, also referred to as a pokie or poker machine). The footage showed that at about 1.45pm on 15 April 2010, Mr Rana was drinking from a pint glass as he played a VGM. Mr Porter watched him from a distance for a short while. Mr Porter was then joined by Ms Macauley, who watched from a distance as Mr Porter approached Mr Rana. Mr Porter spoke to Mr Rana. Mr Rana stood up, walked up and down a short distance, sat down and resumed playing the VGM. Mr Porter walked away. Mr Rana played for another 4 to 5 minutes, during which time one other person (apparently another Casino patron) spoke to him very briefly. Mr Rana then stood up and walked through a gaming area to the base of the north side escalators. There he spoke to Mr Clark, a Casino Pit Manager, who was standing near an “action desk”, which is a reception desk where patrons can make enquiries and reservations and undertake loyalty club transactions. Mr Clark, whilst speaking to Mr Rana, used his mobile phone. Mr Porter walked past and joined Mr Rana and Mr Clark. Mr Rana then walked off alone, walked through Marble Hall and left the Casino via the North Terrace entrance. Mr Porter followed at a distance.
Mr Porter gave evidence. He said that he was at work on 15 April 2010 and that, at about 1.40pm on that day, he was tasked to assess a customer for possible intoxication. He said that his employers had given him training in relation to assessing people for their level of intoxication. That training caused him, when undertaking an assessment, to look for unsteadiness, slurred speech, bloodshot eyes and alcohol on the breath, as well as observing the quantity consumed. He said that on an average weekday, during the day, 5 to 10 people would be denied entry or removed from the Casino because of intoxication. On a Friday or Saturday night, it could be as high as 20 people. Mr Porter also said that patrons who were found to be intoxicated were removed from the premises immediately. It was Mr Porter’s evidence that he was not previously acquainted with the customer he was tasked to assess on 15 April 2010, but he now knows him to be Mr Rana, the complainant in this matter. Mr Porter gave evidence that he observed Mr Rana from a distance whilst he waited for Ms Macauley to join him. He then approached Mr Rana. Mr Porter said that he told Mr Rana that he had received a report that he may be intoxicated. He asked Mr Rana if he had been drinking today, and Mr Rana indicated that the beer he was drinking was his first for the day. Mr Porter said that Mr Rana voluntarily sought to demonstrate his sobriety by walking about 10 feet. Mr Porter said that he smelt alcohol on Mr Rana’s breath, but considered that that could be consistent with Mr Rana’s statement that the beer was his first. Mr Porter said that he observed no obvious signs of intoxication, so he told Mr Rana that he could remain on the premises. Mr Porter said that Mr Rana became somewhat agitated in the course of the exchange. Following the exchange, Mr Porter radioed the control centre and told them that Mr Rana was allowed to stay. A few minutes later, Mr Porter was walking back to his post at the North Terrace entrance, when he saw Mr Rana talking to Mr Clark. Mr Porter said that he walked over to them and heard Mr Rana tell Mr Clark that he wished to sign paperwork to be barred from the Casino. It is possible for a Casino patron to voluntarily bar him or herself. Mr Clark was using his mobile phone to call Host Responsibility Co-ordinators (HRC) the section of the Casino administration which arranges the paperwork for barring and self barring, about arranging the self barring of Mr Rana. Mr Porter said in evidence that Mr Rana became agitated after seeing Mr Porter, and Mr Rana then said that he had been approached by security, that security had barred him from the Casino and that he wanted to sign any paperwork and then fight the barring in Court. Mr Porter said that he told Mr Rana that he had neither barred him nor asked him to leave the premises, but that if he wished to bar himself, then that could be arranged. Mr Rana again said that he would fight any barring and Mr Porter repeated that he was not barred, and he was allowed to stay. Mr Porter said that Mr Rana then moved very close to Mr Porter and said that the only reason Mr Porter had approached him was the colour of Mr Rana’s skin. Mr Porter told Mr Rana that the reason he had approached him was a concern that he might be intoxicated. Mr Porter said that Mr Rana turned away, walked through Marble Hall and exited the Casino onto North Terrace. Mr Porter said that he saw Mr Rana walk east along North Terrace toward Parliament House. Mr Porter did not get the impression that Mr Rana was aware that Mr Porter followed him out of the Casino.
Ms Macauley gave evidence. Her evidence related principally to her observations of the interaction between Mr Porter and Mr Rana at the VGM. Her account is consistent with Mr Porter’s account. In particular, Ms Macauley said that she heard Mr Porter tell Mr Rana that he could stay on the premises. Ms Macauley also said that if a patron is found to be intoxicated, he or she is removed from the premises immediately.
Mr Clark gave evidence. He said that he was tasked to the action desk to see a customer who wished to self bar. He said that he was standing near the base of the north side escalators of the Casino, near the action desk, when he was approached by a male who was previously unknown to him, but who he now knows to have been Mr Rana, the complainant. Mr Rana initiated a conversation, asking to sign his papers to be barred, or words to that effect. Mr Clark understood Mr Rana to mean that he wished to self bar, so Mr Clark telephoned HRC on his mobile phone. Mr Porter was walking past and joined the conversation. Mr Clark then came to understand from what passed between Mr Porter and Mr Rana that Mr Porter had just assessed Mr Rana for intoxication and allowed him to stay. Mr Clark heard Mr Porter tell Mr Rana that he was not barred, but that if he wished to self bar, that could be arranged. Mr Clark said that Mr Rana became animated and agitated. Mr Rana repeated numerous times that the only reason he had been approached was the colour of his skin. Mr Clark said that Mr Rana walked away saying “I will be suing”.
Mr Kurko, a retired manager of the Casino inspectorate with the Office of the Liquor and Gambling Commissioner (OLGC), gave evidence in Skycity’s case. Mr Kurko said that he retired on 30 September 2009. He said that he had only been back to the OLGC once since his retirement, for a special occasion. He was certain that he had not seen Mr Rana on that day. His evidence was that he had not seen Mr Rana for two to three years. We accept Mr Kurko’s evidence. We find that Mr Rana did not see Mr Kurko at the OLGC on 15 April 2010.

Mr Rana tendered a report of Dr Fellner, a General Practitioner, as an annexure to one of Mr Rana’s affidavits. Dr Fellner said in his report that he had been treating Mr Rana for diabetes and mood problems for many years. Dr Fellner said that Mr Rana:
..can from time to time experience episodes of low blood sugar which can cause him to become hungry, sweaty, slightly disoriented and agitated.
It was not disputed that Mr Rana suffers from diabetes and may, on 15 April 2010 have exhibited the symptoms described by Dr Fellner. There was no evidence at all as to what prompted the tasking of Mr Porter to undertake the assessment of Mr Rana on that day. All Mr Porter was able to say was that he had been tasked at the instigation of Mr Otty, a Pit Manager.
Mr Rana also tendered a report of Dr Stevenson, a consultant physician, dated 26 June 2009. Dr Stevenson says that Mr Rana was diagnosed with Paranoid Schizophrenia in the late 1980s, and with diabetes mellius type 2 in 2005.
Mr Rana also tendered his own affidavit of 7 October 2008, which had been prepared in relation to proceedings in the Federal Magistrates Court. The affidavit of Mr Rana had annexed to it an affidavit dated 28 July 2004 of Dr Carmine De Pasquale, a psychiatrist. Dr De Pasquale said that he had been Mr Rana’s consulting psychiatrist since early in 1986. Dr De Pasquale said, in his affidavit:
Mr Rana suffers from a paranoid delusional disorder, he has a paranoid personality and, in my opinion, he suffers from post traumatic stress disorder. Mr Rana’s condition, when untreated, causes him to believe that people are talking about him. He has a history of auditory hallucinations. He hears people laughing at him or referring to him in a derogatory way. His condition causes him to misinterpret other people’s actions or statements and believe that they are trying to persecute him.
Dr De Pasquale gave some information about Mr Rana’s medication and said:
Mr Rana is still taking the same medication and his hallucinations and ideas of reference, eg people talking about him, appear to be under control. He remains paranoid, eg believing that people are “out to get him” and he remains insightless.
This evidence was not disputed. No more up to date psychiatric evidence was provided. Dr De Pasquale’s opinion is consistent with Mr Rana’s behaviour during the hearing of this matter.
Findings of fact and the provisions of the Act
It was clear from the pleadings and from Mr Rana’s cross-examination of the witnesses, that Mr Rana has, on past occasions, related versions of the event on 15 April 2010 which differ from the version he gave in evidence before us. When cross examining, Mr Rana put many alleged elements of the incidents on 15 April 2010 to which he had not referred when giving evidence himself. These included allegations that he was abused by Casino staff and allegations that he was manhandled. We need not go through those allegations in detail. Many were inherently improbable. None were established by any evidence.
The direct witnesses to the interactions between Mr Rana and the Casino staff on 15 April 2010; Mr Porter, Ms Macauley and Mr Clark, gave accounts of the various interactions which were largely consistent with each other and consistent with the CCTV footage. Where their evidence differs from Mr Rana’s, we accept their evidence. In particular, we find that Mr Porter told Mr Rana that he could stay on the premises. We find that Mr Rana was not asked to leave, and nor was he told that he was to be barred from the Casino. We do not accept Mr Rana’s evidence that he was confronted at the ATM by the same security guard who encountered him earlier on 15 April 2010. We accept that neither Mr Porter nor Ms Macauley were involved in such an incident, and Skycity has no record of it.
The Act provides, in s 61:
It is unlawful for a person who offers or provides:-
(a)    goods; or
(b)    services to which this Act applies,
(whether for payment or not) to discriminate against another on the grounds of race –
(c)    by refusing or failing to supply the goods, or perform the services; or
(d)    in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.
The Act defines “services to which this Act applies” in s 5(e) to include “entertainment, recreation and refreshment” which would include the services offered by Skycity at the Casino.
The Act provides, in s 76:
It is unlawful for a person who offers or provides:
(a)    goods; or
(b)    services to which this Act applies,
(whether for payment or not) to discriminate against another on the grounds of disability –
(c)    by refusing or failing to supply the goods, or perform the services; or
(d)    in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.
We accept the evidence of Mr Porter, Ms Macauley and Mr Clark that there was, on 15 April 2010, no refusal or failure on behalf of Skycity at all, on any basis, to provide Mr Rana with goods or services. We reject Mr Rana’s evidence and allegations to the contrary. We find that there was no decision made on 15 April 2010 to bar Mr Rana from the Casino, and nor was it suggested to Mr Rana that such a decision had been made. We find that there was no verbal abuse of Mr Rana by Casino staff at the Casino on 15 April 2010.
Further, we are satisfied, on the basis of Mr Porter’s evidence, that his assessment of Mr Rana in relation to his level of intoxication on 15 April 2010 was undertaken in accordance with reasonable Casino procedures, and did not constitute discrimination pursuant to s 61(d) or s 76(d). There is no evidence of any kind that the decision to assess Mr Rana for intoxication, or the manner of his assessment, was motivated by anything to do with his race or his disabilities.
The Act provides in s 86:
Victimisation is unlawful
(1)    It is unlawful for a person to commit an act of victimisation.
(2)    For the purposes of this section, a person commits an act of victimisation against another person (the victim) if he or she treats the victim unfavourably on the ground that the victim has—
(a)brought proceedings under this Act against a person; or
(b)given evidence or information in proceedings under this Act; or
(c)made allegations that the victim or some other person has been the subject of an act that contravenes this Act; or
(d)reasonably asserted the victim's right or the right of some other person to lodge a complaint or take other proceedings under this Act; or
(e)otherwise done anything under or by reference to this Act,
or on the ground that he or she knows that the victim intends to do any of those things, or suspects that the victim has done, or intends to do, any of those things.
(3)     Unfavourable treatment on the ground that a person—
(a)has made a false allegation; or
(b)has not acted in good faith,
does not constitute an act of victimisation.
Mr Rana suggested from time to time that the incidents on 15 April 2010 may have constituted victimisation because of his previous litigation or his support of a former casino employee in his dealings with the casino. No evidence whatsoever was put forward in support of this claim and we reject it.
Mr Rana put forward no credible evidence of any discrimination against him on behalf of Skycity in relation to religious dress, age or sexual harassment, and we reject his claims under those headings accordingly.
Mr Rana’s claim under the Equal Opportunity Act is dismissed.