Reurich v Club Jervis Bay Ltd
[2018] FCA 1220
•17 August 2018
FEDERAL COURT OF AUSTRALIA
Reurich v Club Jervis Bay Ltd [2018] FCA 1220
File number: NSD 1096 of 2015 Judge: MARKOVIC J Date of judgment: 17 August 2018 Catchwords: HUMAN RIGHTS – disability discrimination – where the applicant suffers from social communication disorder, paranoid personality disorder and attention deficit/hyperactivity disorder – where the applicant claimed to require an assistance animal due to his disabilities – where the applicant’s dog, Boofhead, at the relevant time had a trainee licence and accompanied him to the respondent’s facilities and when he made use of the respondent’s services – whether Boofhead was an assistance dog for the purposes of the Disability Discrimination Act 1992 (Cth) (DD Act) ss 4, 8 and 9 – whether the respondent prevented the applicant and/or his dog from using its facilities and services and otherwise adversely treated him because of his dog, his disability per se or because of behaviour that was a symptom or manifestation of his disability – whether the alleged incidents amounted to unlawful direct or indirect discrimination for the purposes of the DD Act ss 5, 6, 23, 24 and 27 – application allowed in part. Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO
Disability Discrimination Act 1992 (Cth) ss 5, 6, 8, 9, 10, 11, 23, 24, 27, 54A and 123
Federal Court of Australia Act 1976 (Cth) s 51A
Federal Court Rules 2011 (Cth) r 16.02(1)(d)
Cases cited: Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389
Elliott v Nanda (2001) 111 FCR 240
Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Queensland v Forest (2008) 168 FCR 532
Sklavos v Australasian College of Dermatologists (2017) 347 ALR 78; [2017] FCAFC 128
Watts v Australian Postal Corporation (2014) 222 FCR 220
Wotton v Queensland (No 5) (2016) 157 ALD 14; [2016] FCA 1457
Zhang v University of Tasmania (2009) 174 FCR 366
Dates of hearing: 4, 5, 6, 7 and 8 September 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 378 Counsel for the Applicant: Ms C Burnett with Mr P Klank Counsel for the Respondent: Mr A Flecknoe-Brown Solicitor for the Respondent: Gilchrist Connell ORDERS
NSD 1096 of 2015 BETWEEN: PETER GEORGE REURICH
Applicant
AND: CLUB JERVIS BAY LTD
Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
17 August 2018
THE COURT DECLARES THAT:
1.The respondent’s conduct on 26, 27 and 28 December 2014, 19 April 2015, 12 June 2015 and 10 July 2015 in refusing to allow the applicant to enter its premises or denying him access with his assistance animal, by imposing terms on which it would provide him with services because of his assistance animal and/or in depriving the applicant of his membership of the respondent was unlawful discrimination under ss 23, 24 and/or 27 of the Disability Discrimination Act 1992 (Cth) (Act).
2.The respondent’s conduct on 26, 27 and 28 December 2014 and 12 June 2015, in not making reasonable adjustments in relation to the applicant’s assistance animal while at the respondent’s premises, was unlawful discrimination under s 23 and s 27 of the Act.
THE COURT ORDERS THAT:
3.The respondent pay damages by way of compensation to the applicant for the pain and suffering he has experienced as a consequence of the respondent’s unlawful conduct in the sum of $16,000 plus interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) from 15 September 2015.
4.On or before 7 September 2018 the parties are to file and serve submissions, not exceeding 5 pages in length, in relation to the costs of the proceeding and to indicate in the submissions whether that issue can be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Table of Contents
1. INTRODUCTION
[1]
2. MR REURICH, BOOFHEAD AND THE CLUB
[5]
2.1 Mr Reurich
[5]
2.2 Boofhead
[20]
2.3 The Club
[33]
2.4 Boofhead’s attendance at the Club
[37]
2.5 Observations about the witnesses
[39]
3. ALLEGED INCIDENTS OF DISCRIMINATION
[45]
3.1 19 December 2014 Incident
[45]
3.1.1 Mr Reurich’s recollection
[46]
3.1.2 Mr Mandavy’s recollection
[56]
3.1.3 Mr Simpson’s recollection
[58]
3.1.4 My conclusions on the evidence
[62]
3.2 21 December 2014 Incident
[63]
3.3 Ms Muscat makes inquiries
[69]
3.4 26 December 2014 Incidents
[71]
3.5 27 December 2014 Incidents
[76]
3.6 28 December 2014 Incident
[85]
3.7 Mr Reurich is suspended from the Club
[92]
3.8 31 December 2014 Incident
[94]
3.9 Mr Reurich lodges a complaint with the AHRC
[99]
3.10 Assessment of Boofhead
[100]
3.11 The period from 31 January 2015 to 2 February 2015
[103]
3.12 Special board meeting of the Club
[112]
3.13 10 February 2015 Incident
[114]
3.14 Mr Tripp’s note
[120]
3.15 March/April 2015 Incident
[121]
3.16 19 April 2015 Incident
[124]
3.17 23 May 2015 Incident
[137]
3.18 24 May 2015 Incident
[143]
3.19 29 May 2015 Incident
[149]
3.20 10 June 2015 Incident
[151]
3.21 11 June 2015 Incident
[159]
3.22 12 June 2015 Incident
[161]
3.23 Mr Reurich’s suspension from the Club
[175]
3.24 Complaints made by the board against Mr Reurich
[178]
3.25 10 July 2015 board meeting
[180]
3.26 Notification of expulsion from the Club
[191]
3.27 Complaint to the AHRC
[192]
4. LEGISLATIVE FRAMEWORK
[194]
5. RELEVANT PRINCIPLES
[208]
6. CONSIDERATION
[224]
6.1 Jurisdictional issue
[224]
6.2 Does Mr Reurich have a disability?
[225]
6.3 Was the Club aware of Mr Reurich’s disability?
[228]
6.4 Is Boofhead an assistance animal within the meaning of s 9(2)(c) of the DD Act?
[230]
6.5 Did the Club unlawfully discriminate against Mr Reurich?
[240]
6.5.1 Direct discrimination: s 5(1) of the DD Act
[243]
(a) Incident 1 – 19 December 2014
[253]
(b) Incident 2 – 21 December 2014
[259]
(c) Incidents 3 and 4 – 26 December 2014
[263]
(d) Incidents 5 and 6 – 27 December 2014
[272]
(e) Incident 7 – 28 December 2014
[279]
(f) Incidents 8, 9, 10 and 11 – 31 December 2014, 31 January 2015 and 1 and 2 February 2015
[284]
(g) Incident 12 – 10 February 2015
[289]
(h) Incident 13 – March/April 2015
[291]
(i) Incident 14 – 19 April 2015
[295]
(j) Incidents 15 to 19 – 23, 24, and 29 May 2015, 10 and 11 June 2015
[298]
(k) Incident 20 – 12 June 2015
[300]
(l) Incident 21 – 10 July 2015
[311]
6.5.2 Direct discrimination: s 5(2) of the DD Act
[320]
6.5.3 Indirect discrimination
[338]
6.6 Summary of findings of unlawful discrimination
[347]
7. RELIEF
[348]
7.1 Some principles
[350]
7.2 Declaratory orders
[356]
7.3 Orders for reinstatement
[358]
7.4 Apology
[359]
7.5 Damages
[362]
7.5.1 Actual loss – glasses and mobile phone
[363]
7.5.2 Non-economic loss for pain and suffering
[366]
7.5.3 Aggravated damages
[371]
7.6 Interest
[374]
8. COSTS
[376]
9. CONCLUSION
[377]
MARKOVIC J:
1. INTRODUCTION
The old saying goes that a dog is a man’s best friend but, as this case demonstrates, sometimes a dog can be more than that.
Peter George Reurich, the applicant, has a bearded Border Collie called Boofhead. For Mr Reurich, Boofhead is more than a pet. He is a constant companion who, as the evidence demonstrates, Mr Reurich depends on to assist him in coping with everyday life.
Mr Reurich lives in Jervis Bay on the south coast of New South Wales. This proceeding arose out of Mr Reurich’s membership at a local club, Club Jervis Bay Ltd (Club) and his interaction with the Club and some of its employees. Mr Reurich claims that the Club directly and/or indirectly discriminated against him on approximately 20 different occasions because of his disability without lawful justification in respect of access to the Club’s premises and/or the goods, services or facilities provided or made available by the Club in breach of the Disability Discrimination Act1992 (Cth) (DD Act). The alleged unlawful discrimination took place between 19 December 2014 and 10 July 2015.
For the reasons that follow I have found that the Club unlawfully discriminated against Mr Reurich on eight occasions.
2. MR REURICH, BOOFHEAD AND THE CLUB
2.1 Mr Reurich
Mr Reurich moved to Vincentia in Jervis Bay in 2013. He believes that he suffers from an adjustment and personality disorder which manifests itself in various ways, including interpersonal issues, anxiety, panic attacks and depression. He has received psychological treatment to help cope with these issues since January 2012.
Tamara Lee has been Mr Reurich’s psychologist since January 2012. She has a bachelor of psychology and over nine years’ experience practising as a psychologist. Ms Lee prepared two reports in relation to Mr Reurich’s psychological conditions and his use of an assistance dog for the purpose of this proceeding.
In her report dated 20 January 2017 (First Lee Report) Ms Lee noted that, since he had first starting seeing her, Mr Reurich had sporadically attended 45 appointments depending on stressors at the time. According to Ms Lee, Mr Reurich has a number of psychological conditions that have impaired his occupational and social functioning. He habitually seeks counselling for assistance with coping with situations that arise as a result of these impairments. In Ms Lee’s opinion, Mr Reurich demonstrates symptoms of social communication disorder, attention deficit/hyperactivity disorder and paranoid personality disorder which are conditions that often lead to interpersonal issues and subsequent symptoms of depression and anxiety.
In the First Lee Report Ms Lee makes the following observations about Boofhead’s effect on Mr Reurich’s social interactions:
… Peter had advised that he felt more comfortable socially when he had his dog with him and from my interactions with Peter, the presence of his dog certainly seemed to soften his demeanour and reduce his outward anxiety symptoms. Because he was more aware of his dog's mental wellbeing than other people's state of minds, the presence of his dog also seemed to help Peter regulate his emotions better. 2 years on, I've found Peter's Service Dog to have both positive and negative effects. On the one hand, when people are respectful of the legitimacy of a Service Dog, Peter has found he is able to last longer in employment and to have positive social interactions out in the community. However, Peter seems to have great difficulty dealing with situations in which people are either not aware, or do not accept, the legitimacy of his Service Dog. These incidents seem to trigger Peter's paranoid thinking and his lack of appropriate social skills makes it challenging for him to address and resolve the situation. These communication and empathy skills are something that Peter and I continue to work on.
In cross-examination, Ms Lee elaborated on her statement that the “presence of his dog certainly seemed to soften [Mr Reurich’s] demeanour and reduce his outward anxiety symptoms”. Ms Lee thinks that when Boofhead is with Mr Reurich, he has slightly more self-awareness in that he cares about his dog, and if he is getting too loud, Boofhead starts to fret and Mr Reurich notices that. Thus when Mr Reurich has Boofhead with him he seems to be more self-aware and able to regulate his behaviour for example, in relation to the volume of his voice and his demeanour. Boofhead also serves as a way for Mr Reurich to connect with other people. Ms Lee has observed Mr Reurich out in public and has noticed that people come up to him, wanting to pat Boofhead and talk to him about Boofhead. This has led to positive social interactions which Mr Reurich otherwise lacks.
Ms Lee provided a second report dated 12 May 2017 (Second Lee Report) in which she was asked to comment on whether Mr Reurich “talking loudly, standing close, using swear words, being easily provoked [and] coming across as rude or aggressive” reflect symptoms of his mental health disorder. In that report Ms Lee said:
I would like to confirm that these are part of his Mental Health Condition and not, in my opinion, aimed at creating negative emotions in others. Peter's diagnosis of Social Communication Disorder is such because I do not have adequate developmental history to confirm a diagnosis of Autism Spectrum Disorder, which I strongly believe Peter has. This means that Peter has very limited insight into the impact that he has upon other people with regards to body language, tone of voice and maintenance of personal space. Peter becomes fixated on getting his point across and has limited capacity to accurately assess other people's responses to his demeanour. I have discussed with Peter on many occasions how the combination of his loud, projected voice and insistent speech patterns could create a feeling of intimidation in others and the need for greater personal space during the conversation. Peter has difficulty understanding this concept believing that if his intentions aren't hostile, then people shouldn't perceive them to be. This is a common deficit amongst clients with Social Communication Disorder and Autism Spectrum Disorder. In my opinion, Peter does not harbour violent or hostile intentions towards people, rather a fixation of having his point heard and having, what he feels to be, a judicious response. This is something I have tried to work with Peter on his therapy, with limited success.
Ms Lee elaborated on her observation that Mr Reurich has “a fixation of having his point heard and having, what he feels to be, a judicious response”. She explained that when Mr Reurich has an issue with someone, he will tend to continue addressing that issue for as long as he thinks he needs to do so. Ms Lee agreed that this characteristic could intimidate others. Ms Lee considered this to be a problem that Mr Reurich is likely to face fairly often in his day to day life and one that she has been trying to work on with him. Ms Lee also noted that, although Mr Reurich does not necessarily agree with her, he has a loud voice and, because of the way he presents, people need more personal space around him.
In a subsequent affidavit affirmed by Ms Lee, she provided a further explanation of statements that were made in the First Lee Report and the three mental health disorders of which Mr Reurich was said to display symptoms. She noted that Mr Reurich’s symptoms include difficulties with normal social communication; limited insight into the impact he has on other people with regards to the use of a loud, projected voice and insistent speech patterns; and suspicion, to the point of paranoia, about the intention of others. These symptoms lead him to experience intense feelings of anxiety and depression.
Ms Lee provided extracts from The Diagnostic and Statistical Manual of Mental Health Disorders (5th ed, American Psychiatric Association, 2013) (Mental Health Manual) which she said is used by psychologists in Australia to make mental health diagnoses. The extracts referred to the diagnostic criteria and symptoms for the three mental health disorders referred to in the First Lee Report, namely, social communication disorder, attention deficit/hyperactivity disorder and paranoid personality disorder, and the fourth mental health disorder referred to in the Second Lee Report, being autism spectrum disorder.
Ms Lee’s evidence was that Mr Reurich characteristically displays two of the diagnostic criteria for paranoid personality disorder according to the Mental Health Manual at p 649, which are:
·suspecting without sufficient basis that others are exploiting, harming or deceiving him; and
·reading hidden, demeaning or threatening meanings into benign remarks or events.
Ms Lee explained that, generally, when Mr Reurich has Boofhead with him he is more approachable. Without Boofhead Ms Lee thought that Mr Reurich, being a “big, loud person and … a larger male”, speaks rather loudly, stands quite close to people when he talks, without realising, and unintentionally is “quite confronting at times”. But with Boofhead present there is a different focal point for people. Boofhead allows people to have initial contact with Mr Reurich through him giving them time to understand that Mr Reurich does not intend to be hostile, he is just loud.
Ms Lee has only observed one negative aspect of Boofhead accompanying Mr Reurich which she did not foresee. That is, Ms Lee did not anticipate that Mr Reurich’s paranoid personality and general suspicion of people and their intentions has meant that, when people dispute the legitimacy of Boofhead, Mr Reurich will get quite angry and feel like he is being targeted. Negative reaction to Boofhead can thus be a trigger for Mr Reurich, an issue on which Ms Lee has been trying to work with him.
Ms Lee does not believe that Mr Reurich harbours violent or hostile intentions towards other people. But she agreed that many people do not know the difference between someone who does harbour violent or hostile intentions and someone like Mr Reurich.
Ms Lee agreed that Mr Reurich may possibly perceive negative interactions with people in a one sided way; will tend to see the other person as being at fault without recognising his own contribution to what might have happened; and, in the heat of the moment, might be unwilling or unable to agree when another person suggests that he may have broken a rule. However, Ms Lee said that in her sessions with Mr Reurich she assisted him in developing some insight into those situations. For example, when Mr Reurich brought in a video of his interactions where he was quite adamant that a person was being hostile towards him or was “out to get him”, Ms Lee was able to assist him to see things in a different way. Ms Lee observed that, on a few occasions, she saw Mr Reurich independently do that but, for the most part, he was quite stubborn in his belief that he was being targeted.
Ms Lee disagreed that Mr Reurich tends to exhibit an element of denial in his recollection of events and his role in them. In Ms Lee’s experience, while Mr Reurich lacks insight, he is incredibly honest about everything that has happened. As a result of his lack of insight, Mr Reurich often does not see a problem with what has happened and will not only not deny that things have happened, but actually produce video evidence, thinking there was no issue with what occurred. When Ms Lee would then explain her view of the recorded interaction, and that for example, he came across as intimidating or loud, Mr Reurich usually got upset, which Ms Lee concluded was indicative of Mr Reurich’s lack of awareness of the effect his behaviour had on others, not that he was denying what had occurred.
2.2 Boofhead
Boofhead, sometimes referred to as Boofy or Boof, has been with Mr Reurich since his birth in 2007.
Mr Reurich trained Boofhead over a number of years to “sit”, “stay”, obey other instructions and not eat food off the floor when it was dropped.
Boofhead bathes in the sea every two to four days in summer and every couple of weeks Mr Reurich gives him a bath with detergent. Boofhead attends the vet at least once a year and, as at January 2017, his vaccinations were up to date. Mr Reurich brushes Boofhead regularly and checks him for ticks and other things like grass seeds every day.
Mr Reurich feels that Boofhead offers him a freedom that he did not previously have, helps him with his disability and makes it easy for him to get out of the house. When he does not have Boofhead with him, Mr Reurich feels like he is missing something and becomes upset, starts to shake and often has to return home. According to Mr Reurich, if awful things are said to him about Boofhead, he becomes agitated and upset.
At the time of the incidents the subject of this proceeding Boofhead had what Mr Reurich agreed was “pretty long” hair. The photo of Boofhead from about that time which was in evidence depicted Boofhead as follows:
Psychiatric Service Dog Association (NSW) Incorporated trading as mindDog (mindDog) is a not for profit organisation that assists people to procure, train and accredit psychiatric assistance dogs. Catherine Phillips is the founder and chair of its board. A brochure issued by mindDog explains that a mindDog is “a psychiatric service dog providing essential support for someone with a mental health disorder”.
According to Ms Phillips, assistance dogs can be used by people with a range of different disabilities and can be trained to perform specific tasks to assist their handler. For example, for a diabetic, an assistance dog can be trained to alert for hypoglycaemic or hyperglycaemic attacks. For a person with an anxiety disorder the dog is not trained to undertake specific tasks. Rather, the handler needs to observe the dog’s body language in order to understand what the dog is telling them. Ms Phillips explained that because of the bond between the dog and its handler, the dog is aware of the handler’s physiology. If the handler is in a state of anxiety, Ms Phillips said that the dog will react to that and, for example, take the handler out of the situation causing them anxiety.
In late November 2014 Mr Reurich applied to mindDog to have Boofhead certified as a mindDog. The application form completed by Mr Reurich for certification of Boofhead was in three parts: part one was to be completed by the applicant applying for certification, Mr Reurich; part two was to be completed by the applicant’s medical practitioner; and part three was to be completed by someone who knew the applicant well but was not a member of his or her family.
In the application submitted by Mr Reurich for Boofhead, part two was completed by two practitioners: Dr Udit who described Mr Reurich as having “[a]nxiety, [a]djustment disorder” and who indicated that he expected a mindDog would help calm Mr Reurich down; and Ms Lee who described Mr Reurich’s condition as an “[a]djustment disorder with anxiety and depression” and a “[p]ersonality disorder not otherwise specified” and who indicated that she expected a mindDog would assist Mr Reurich because his “love for animals assists him in regulating his emotion”.
As part of the application, Mr Reurich completed home assessment forms, indicating that Boofhead had undertaken a home assessment test every fortnight over a six week period on 5 and 20 November and 3 December 2014. Ms Phillips explained that the home assessment program required applicants to answer “yes” or “no” to the same set of standard questions organised in two categories, “at home” and “out and about”, each fortnight for three consecutive fortnights. The questions in both categories aimed to uncover the relationship between the dog and its handler because the basis of psychiatric assistance dogs is the bond between the dog and its handler and how that develops. The home assessment also evaluated what the dog had been trained to do as this informed the relationship between the dog and its handler. The assessment was a standard form questionnaire that applied to all mindDog applicants and was not tailored to an applicant’s individual circumstances.
Upon receipt, Ms Phillips reviewed the application for Boofhead and deemed Mr Reurich and Boofhead to be suitable candidates. On 16 December 2014 she sent trainee material, a mindDog vest and an identity card to Mr Reurich. A copy of Boofhead’s licence, a brochure issued by mindDog and a photo of Boofhead in his trainee jacket appear below:
According to Mr Reurich, having Boofhead’s trainee licence and jacket would allow Boofhead to be trained to the standard required for the mindDog public access test. For example, armed with Boofhead’s trainee licence and jacket, Mr Reurich took Boofhead to the supermarket where he trained him not to look at meat displays and walk behind or next to him in the aisle.
On 27 October 2015, after the events the subject of this proceeding, Boofhead passed the mindDog public access test.
2.3 The Club
The Club is a licenced RSL club registered under the Registered Clubs Act 1976 (NSW). It is a not for profit entity with all profits redistributed for the benefit of members.
The Club’s mission as an RSL club is to provide for the wellbeing, care, compensation and commemoration of serving and ex-defence force members. The Club also provides a general service to the Jervis Bay community. It has various facilities for its members and guests, including a licenced restaurant, bistro, entertainment and gaming.
Mr Reurich joined the Club on 7 May 2013 and began to catch the courtesy bus to and from the Club. The Club provided Mr Reurich with a place to socialise and meet locals. As Mr Reurich was new to the area and single, he wanted to make friends and hoped to meet a girlfriend as well as able to dine there.
The incidents which form the basis of Mr Reurich’s alleged claims involved a number of the Club’s officers and employees. It is useful to introduce them here:
·James Rodney Simpson, who is known as Rod, was the Club’s president for 13 years until October 2016;
·Derek Ohlston has been the Club’s chief executive officer for approximately 31 years;
·Jean-Claude Mandavy, who is referred to as JC, has been a supervisor at the Club for 10 years;
·Jeffrey Brooks had dual roles as a supervisor and a security guard for eight years until December 2016. He was generally assigned to one of the two roles, though he usually worked as a security guard on Friday and Saturday nights and as a bar supervisor at other times;
·Murray Feeney was a supervisor at the Club for seven years until 21 December 2016;
·Rita Muscat has been the operations manager at the Club for approximately eight years. Prior to that she was the Club’s events manager for approximately two years and a supervisor for approximately three years. As operations manager Ms Muscat was responsible for ensuring that all patrons conformed to the Club’s rules and standards of behaviour for the safety and wellbeing of staff and guests in addition to ensuring that all patrons had a good experience when they came to the Club; and
·Malcolm Tripp is the Club’s courtesy bus driver. Mr Tripp recalled that he drove Mr Reurich about 20-30 times between 2014 and 2015. He recalled that, about two to three months after he first collected Mr Reurich from his house in Vincentia to take him to the Club, he was accompanied by Boofhead who was wearing a service dog vest which he later learnt was a mindDog vest.
The Club employees referred gave evidence that they observed Mr Reurich behaving in an aggressive and/or intimidating manner, for example, by invading their personal space, cutting them off when they spoke and speaking with a raised voice. Their observations of and attitudes toward Mr Reurich are apparent from the evidence of each alleged discriminatory incident described below.
2.4 Boofhead’s attendance at the Club
Before Boofhead got his trainee jacket and licence, Mr Reurich would sometimes bring him to the Club but leave him outside. If Mr Reurich went to the Club at night he left Boofhead at home. When Mr Reurich did not have Boofhead with him at the Club, after about 90 minutes, he would feel anxious, tense and suffer from anxiety, at which point he would want to go home to Boofhead immediately. Despite his love of seeing bands play at the Club, he would not stay because he would start to feel physically unwell, sweat and tremble until he saw Boofhead again.
After Boofhead got his licence and jacket he attended the Club with Mr Reurich. According to Mr Reurich, Boofhead was usually by his side and, when he was not, that was because Mr Reurich needed to go to the bar, the bathroom or because he was talking to someone nearby but within sight of Boofhead. On those occasions Mr Reurich put Boofhead in a “stay” position and lay his lead over a chair or loosely tied him to a chair. Sometimes Mr Reurich would ask someone to keep an eye on him. Mr Reurich said that he only left Boofhead alone for very short periods of time and that Boofhead would almost always stay in the same place, either sitting, lying down or standing up with his head turned looking towards Mr Reurich. Mr Reurich could only recall one occasion when Boofhead moved around the Club without him when Mr Reurich had gone to the bathroom, and unbeknown to Mr Reurich, Boofhead followed him.
2.5 Observations about the witnesses
In his evidence Mr Reurich sets out a number of interactions with Club employees which took place between 19 December 2014 and 10 July 2015. He claims that in that period there were about 20 instances of discrimination in breach of the DD Act. Those incidents are described below. What occurred at the time of many of the incidents was the subject of disputed facts. Where that is the case, I have set out the contested evidence and my view of whose evidence should be preferred and why that is so.
Before setting out the evidence it is useful to say something about my observations of the witnesses.
For the most part I found Mr Reurich to be a reliable witness. He had an ability to recall detail, including the minutiae of events. In part his detailed recollection of events was assisted by videos he had recorded on his phone which may have been a way of coping with the paranoia that, in Ms Lee’s opinion, is a manifestation of his condition. Mr Reurich said that the videos helped clarify what happened but, clearly, they also assisted Mr Reurich’s recollection of events.
The Club submitted that Mr Reurich was not a reliable witness because, although Mr Reurich thought he had a good memory, in cross-examination it was demonstrated that he did not. In cross-examination, Mr Reurich agreed that he “was not Houdini or Stephen Hawking”, conceded that he might have confused one or two days and accepted that he sometimes gets things wrong and his memory fails him. In my opinion, these criticisms largely demonstrate the effect of the passing of time on a witness’s memory. Mr Reurich accepted that he does not have the genius of others and that he may have confused dates but that does not make him an unreliable witness. What is clear is that Mr Reurich was able to recollect the chronology of events and his interactions with various people with sufficient clarity. That Mr Reurich recounted the events in a particular way which appears “one sided” as the Club suggested is unsurprising. First, Mr Reurich was clearly concerned by the events that occurred to the point where he felt he needed to make a complaint to the Australian Human Rights Commission (AHRC) and thereafter commence this proceeding. Secondly, it is not uncommon for a party to give what could be described as a “one sided” account of events. The same could be said of the recollection of some of the Club’s witnesses. Further, in this case, that characteristic is also, it seems, a manifestation of Mr Reurich’s disabilities.
Mr Reurich is not someone who is able to easily moderate his behaviour. I mean no disrespect to him when I say that he demonstrated no ability to self-edit when giving evidence in cross-examination and that he was both literal and expansive in answering questions so that his evidence often strayed well beyond the ambit of the question he was asked. Despite that, I did not find Mr Reurich to be argumentative. Rather, he did his best to put all of the evidence before the Court and, as I have already observed, I found him to be a mostly reliable and satisfactory witness.
Mr Flecknoe-Brown, counsel for the Club, submitted that the Club’s witnesses were practical, working people who are plain spoken and do not draw fine distinctions. My own observations accord with that submission. The Club’s witnesses answered questions directly but in some cases their animosity towards Mr Reurich was plain. That is perhaps a consequence of the events which have passed and because they find themselves at the centre of this dispute. I have addressed relevant aspects of the Club’s witnesses’ evidence below.
3. ALLEGED INCIDENTS OF DISCRIMINATION
3.1 19 December 2014 Incident
There are a number of different versions of the events which occurred on 19 December 2014. Accordingly, I have set out the relevant witnesses’ differing recollections in turn before concluding on the aspects of the evidence which I accept.
3.1.1 Mr Reurich’s recollection
On 19 December 2014, having received Boofhead’s mindDog vest in the post that day, Mr Reurich decided to go to the Club to see if it would accept Boofhead. According to Mr Reurich, Boofhead had not been in the ocean that day and did not smell.
Mr Reurich and Boofhead, wearing his yellow mindDog jacket, went to the Club at about 7.00 pm for the raffle. They were permitted to enter and Mr Reurich went to sit in the auditorium with Boofhead.
Ten minutes after Mr Reurich had taken his seat, he was approached by Mr Mandavy and they had an exchange to the following effect:
Mr Mandavy: Get the dog out of here. He’s not a seeing eye dog is he?
[this statement was then repeated a few times]
Mr Reurich: He’s a service dog and has a right by law to be here. He has the same rights as a seeing eye dog.
Mr Mandavy: Get the dog out of here. I know the law. He is not a seeing eye dog.
Mr Reurich: He’s a service dog.
Mr Mandavy: I know the law. You have to get the dog out.
Mr Reurich showed Mr Mandavy the mindDog brochure and Boofhead’s mindDog trainee licence. He said that Mr Mandavy “snatched” the licence from him and took it away.
Mr Reurich felt bewildered and in shock and, shortly after he started to have a panic attack because he thought that Mr Mandavy was going to destroy the licence. Mr Reurich left Boofhead in the care of friends and went to look for Mr Mandavy. He recalls that, as he had sweat and tears running into his eyes, he could not see properly and walked into a glass sliding door, breaking his glasses and hurting his nose.
Mr Reurich eventually saw Mr Mandavy with Mr Brooks and another gentleman, who he thought was Mr Simpson. He approached them and asked Mr Mandavy to return Boofhead’s licence but, according to Mr Reurich, Mr Mandavy took the licence and held it up high with his arm raised vertically so that he could not reach it without stretching upwards, which he did, taking hold of the licence. Mr Reurich felt humiliated. I pause here to note that Mr Mandavy denied that he held the licence above his head or that he withheld Boofhead’s licence. Rather, he said that he took the licence with Mr Reurich’s consent so that he could make a copy of it and investigate mindDog.
Mr Reurich recalled then having a conversation with Mr Simpson to the following effect:
Mr Reurich: You’re not a policeman, you have no right to take Boof’s licence off me.
Mr Simpson: Are you a war veteran?
Mr Reurich: No.
Mr Simpson: You have to leave the club.
Mr Reurich showed Mr Simpson the mindDog brochure and Mr Simpson agreed to make some inquiries.
Mr Reurich returned to his friends and Boofhead. Shortly after Mr Reurich said that he was approached by Mr Brooks who told him to “come to the foyer right now”. Mr Reurich described Mr Brooks’ tone as rude and abrupt but nonetheless went to the foyer as requested. I pause here to note that Mr Brooks does not recall being present during the exchanges set out at [50] above nor does he recall telling Mr Reurich to go to the foyer.
The following exchange took place when Mr Reurich reached the foyer:
Mr Simpson: Can we copy the dog’s licence and the brochure?
Mr Reurich: Ok, but be quick. It was stolen off me once by JC. It was very unprofessional.
Mr Simpson: JC was unsure so he took your licence to check.
Mr Reurich: No, JC told me that he knew the law.
Mr Reurich recalled that he could see Messrs Mandavy, Brooks and Simpson standing around the photocopier talking to each other. He did not know why it was taking so long and felt anxious. He could hear murmuring. Mr Reurich did not want to wait in case Boofhead’s licence was withheld from him. He recalled that he had the following exchange:
Mr Reurich: Is it going to take all day? Can I have my property back please, will this take all day?
Mr Mandavy (yelling): If you swear one more time, you’re out!
Mr Reurich was shocked because he had not sworn. According to Mr Reurich, the exchange continued as follows:
Mr Reurich: Mate, did I swear, did I?
Mr Mandavy (yelling): Yes, I just heard you.
Mr Reurich: I have turned on my camera, I want you to repeat that accusation.
Mr Mandavy: No.
Mr Reurich said that he asked for Boofhead’s licence back but Mr Mandavy said that he did not want to help him anymore and Mr Simpson told him that it was illegal to film in the Club and that he should delete it. A short time later Mr Reurich recalled he had a conversation with Mr Simpson to the following effect:
Mr Simpson: You don’t have to leave. You and the dog can stay.
Mr Reurich: Can we still take the courtesy bus?
Mr Simpson: Yes.
3.1.2 Mr Mandavy’s recollection
Mr Mandavy, on the other hand, recalled that the conversation he had with Mr Reurich was to the following effect:
Mr Mandavy: Hi Peter, can I ask you for what purpose your dog is here. I can see that he is wearing a service dog vest.
Mr Reurich: Boofhead is a mindDog and he is allowed to be here.
Mr Mandavy: May I please see your licence for Boofhead just so that I can confirm that Boofhead can come into the Club with you. I will check with Rod because I have never heard of a mindDog.
Mr Reurich: Here is the licence.
Mr Mandavy: Thanks Peter, I am going to make a copy of the licence now and speak with Rod.
Mr Mandavy said that he then went to speak with Mr Simpson and they both went to the office to make a copy of Boofhead’s mindDog licence and google mindDog because neither he nor Mr Simpson had heard of it.
While he was in the office with Mr Simpson Mr Mandavy observed Mr Reurich pacing up and down outside. Mr Mandavy recalled that he and Mr Reurich had a conversation to the following effect:
Mr Reurich: Give me my licence back right now, you are going to destroy it.
Mr Mandavy: Peter, I am just making a copy as soon as I am done I promise I will give it back to you.
Mr Reurich: You are discriminating against me.
Mr Mandavy: Peter, please lower your voice and keep calm, here is the licence. Please do not speak to me in this rude manner, I will not tolerate it.
Mr Reurich: F**k you.
Mr Mandavy: Please leave the Club Peter, I will not have you swearing at me.
Mr Reurich: I didn't swear at you.
Mr Mandavy: I heard you Peter. Please don't swear at me. Please leave the club immediately! Now!
Mr Mandavy recalled that Mr Simpson then asked Mr Reurich to leave because he was creating a scene and his rude behaviour was unacceptable. Mr Reurich turned on the camera on his phone and Mr Mandavy walked away from him at that point.
3.1.3 Mr Simpson’s recollection
Mr Simpson’s recollection of what occurred again differs in a number of respects. He recalled approaching Mr Mandavy and Mr Reurich because he could hear from the tone and pitch of Mr Reurich’s voice that they were having a heated discussion about a licence for Mr Reurich’s dog. Mr Simpson recalled that upon approaching Mr Reurich they had a conversation to the following effect:
Mr Simpson: Are you a war veteran?
Mr Reurich: No.
Mr Simpson: Can we please have a look and take a copy of your licence and the mindDog paperwork so that we can double check that mindDog is a legitimate organisation?
Mr Reurich: Yes but don’t steal it.
Mr Simpson: We are just going to make copies and check that it is all above board.
Mr Simpson specifically recalled asking Mr Reurich if he was a war veteran because he was aware that companion dogs, as well as other animals, were often used as therapy for war veterans who were suffering the effects of post-traumatic stress disorder.
Mr Simpson went to the office with Mr Mandavy to photocopy the mindDog licence. In cross-examination, Mr Simpson acknowledged that he had received Boofhead’s licence and the mindDog brochure; that those documents indicated to him that Mr Reurich needed a mindDog because of his medical condition; and that, upon receipt of that material, he would have been aware that Mr Reurich had some form of mental health disorder although he could not recall that Mr Reurich had ever said anything to him about his condition or the reason why he needed a mindDog.
While Mr Simpson was photocopying Boofhead’s mindDog licence, it became clear to him that Mr Reurich was becoming agitated. He saw Mr Reurich moving about erratically and staring at him and Mr Mandavy. Mr Simpson said that the following exchange took place:
Mr Reurich (yelling): I want my licence back. I want my licence back right now. You are destroying it.
Mr Simpson: We will give it back to you when we have finished copying.
Mr Reurich: I want it back right now, you are discriminating against me.
Mr Simpson cannot recall any further specifics of the conversation other than that Mr Reurich was shouting and behaving in what he described as a “physically intimidating manner” because of the way he was standing and clenching his fists. Mr Simpson recalled that the exchange took place in the Club’s reception where patrons passed through as they entered the Club. Because of the disruption being caused, Mr Simpson asked Mr Reurich to leave the Club saying:
Please leave the Club now. You can’t speak to people like that. That is conduct unbecoming of a member.
Mr Simpson said that Mr Reurich then removed his phone from his pocket and started to film him and Mr Mandavy which caused him to say words to the following effect:
Peter, it is illegal to film here. Please delete that video. Please just take the bus and move on for today.
3.1.4 My conclusions on the evidence
While the recollections of what occurred on 19 December 2014 differ, it is clear that:
(1)Mr Reurich attended the Club with Boofhead wearing his trainee mindDog vest for the first time;
(2)Mr Mandavy approached Mr Reurich to inquire why Boofhead was at the Club and was shown a copy of Boofhead’s licence which he took away. I do not accept that in their first interaction when making initial inquiries, Mr Mandavy asked Mr Reurich to leave the Club. To the extent that Mr Reurich said that occurred, he is mistaken or confused;
(3)Mr Reurich became agitated because he was concerned that he would not get Boodhead’s licence back and that Mr Mandavy may destroy it. There was an exchange between Mr Reurich and Mr Mandavy about the return of his licence during which time I accept it was withheld from Mr Reurich by Mr Mandavy who wanted to make further inquiries about it and show it to Mr Simpson;
(4)Mr Simpson then became involved and he and Mr Mandavy went to the office to photocopy the licence and look at the mindDog paperwork they had been given. While they were there they observed Mr Reurich acting erratically. I infer that once again Mr Reurich was agitated and concerned about whether Boofhead’s licence would be returned;
(5)Mr Reurich then started yelling for the return of his licence and possibly swore. Mr Simpson asked him to leave the Club because of the way he was behaving in the Club’s reception. Mr Simpson also asked Mr Reurich to stop filming the events when he starting using the camera on his phone; and
(6)ultimately, Mr Reurich did not in fact have to leave the Club. He was permitted to stay and take the courtesy bus home.
3.2 21 December 2014 Incident
On 21 December 2014 Mr Reurich and Boofhead were on the courtesy bus returning home from the Club when, according to Mr Reurich, the following exchange occurred:
Mr Tripp: Your dog makes me puke.
Mr Reurich: How can you say my dog makes you puke when you smoke cigarettes?
Mr Reurich said that Mr Tripp then “hit the brakes” and in a loud and aggressive tone shouted that he should “get off the bus”. Mr Tripp started driving the bus in silence until they arrived at Mr Reurich’s house where Mr Reurich got off the bus with Boofhead.
Mr Tripp recalled Mr Reurich and Boofhead getting on the bus on 21 December 2014. He recalled that as soon as Boofhead started climbing the stairs of the bus he smelt a “strong, foul odour”. He said that the conversation he had with Mr Reurich at the time was to the following effect:
Mr Tripp:Peter you cannot get on the bus when the dog smells like that. You have been told that the dog is unhygienic and has to be maintained to the appropriate standard.
Mr Reurich: How can you say my dog smells when you smoke cigarettes. You smell of cigarettes.
Mr Tripp felt personally insulted by Mr Reurich’s remark, particularly because, according to Mr Tripp, he was simply doing what he was told by a member of the board (whose identity he can no longer recall). That board member had told him that Boofhead could not get on the bus when he was dirty, smelly and unhygienic.
Mr Reurich said that, between 19 and 21 December 2014, he and Boofhead went to the Club unhindered once or twice.
The evidence established that on 19 December 2014, two days before the second incident, there was a discussion about Boofhead’s status as a mindDog and whether he was in fact permitted to enter the Club as a mindDog but there was no discussion about his appearance, no allegation by any officer or employee of the Club that he smelt, nor any evidence of any directive given to Mr Reurich that Boofhead had to meet particular hygiene standards. Despite Mr Tripp’s insistence that he had been so informed, I do not accept that Mr Tripp had or could have been informed as at 21 December 2014 that Boofhead could not get on the bus when he was dirty, smelly or unhygienic. Accordingly, I do not accept Mr Tripp’s version of this conversation.
It is appropriate at this point for me to comment on my impression of Mr Tripp as a witness. I generally found him to be an unsatisfactory witness. Mr Tripp gave me the impression that he simply does not like Mr Reurich. That is no doubt a result of the interactions between them. But that break down in their relationship affected the reliability of Mr Tripp's evidence and in some cases, such as this incident, I have not been able to accept his evidence.
3.3 Ms Muscat makes inquiries
On 22 December 2014 Ms Muscat telephoned Ms Phillips at mindDog and Penny from the AHRC. The purpose of these calls was to clarify the legal position in relation to permitting Boofhead into the Club in circumstances where there were concerns that Boofhead may present hygiene and health issues because, according to Ms Muscat, he was dirty, smelly and had matted fur. Ms Muscat said that in her conversations with both Ms Phillips and Penny, she asked if the Club could lawfully refuse entry to a companion animal that is not well groomed and maintained as the Club had previously asked Mr Reurich to leave the Club when Boofhead was scruffy, unkempt and smelt. Ms Muscat said that both Ms Phillips and Penny confirmed that the dog would need to meet hygiene and behaviour standards and that entry could be refused if he did not. Ms Muscat made a note of her discussions in the supervisors’ diary in the following terms:
All Supers – Re: Peter Reurich
I spoke with Catherine Phillips from "Mind Dogs" Re: Peter Reurich.
The dog needs to be well groomed & maintained. If he is scruffy, unkempt & smells we have the right to refuse entry.
Ta
Rita
Also spoke to Australian Human Rights Commission (Penny)
Dog needs to meet the hygiene & behaviour standards.
Despite what Ms Muscat told Ms Phillips and Penny, the evidence establishes that as at 22 December 2014, Mr Reurich had not been asked to leave the Club because Boofhead was scruffy, unkempt and smelt. It is not clear why Ms Muscat informed Ms Phillips and Penny that Mr Reurich was asked to leave the Club because Boofhead was “scruffy, unkempt and smells”. To the extent Ms Muscat said she informed Ms Phillips and Penny that was the case, she was clearly mistaken and I do not accept that aspect of her evidence.
3.4 26 December 2014 Incidents
According to Mr Brooks, on or about 26 December 2014 at around 11.00 am Mr Reurich entered the Club with Boofhead. Mr Brooks approached Mr Reurich and they had a conversation to the following effect:
Mr Brooks:Your dog does not meet the basic health and hygiene standards of the Club because he has a pungent smell, his coat is all matted and he is visibly dirty. Please remove your dog from the Club.
Mr Reurich: My dog doesn’t smell. You smell like cigarettes, how can you say my dog smells when you smell like cigarettes. You are a bully and you stink worse than the dog.
Mr Brooks:You cannot have a dog in here in that state. I will go and show you the paper work that says your dog has to be maintained and hygienic.
Mr Brooks prepared two contemporaneous notes of his interaction with Mr Reurich and completed an incident log dated 26 December 2014. In one of his reports he recorded that:
Boofhead emanated a pungent smell, his coat was all matted and visibly dirty, he was also not walking very well as he is an old dog. I also noticed that his nails were not clipped causing him to limp.
There was some confusion on Mr Reurich’s part as to whether the exchange with Mr Brooks referred to in the preceding paragraph occurred on 26 or 27 December 2014 but in cross-examination Mr Reurich agreed that he had attended the Club on the morning of 26 December 2014 with Boofhead and that he had a conversation to the effect set out above.
I accept that Mr Reurich attended the club with Boofhead on the morning of 26 December 2014 and accept Mr Brooks’ evidence about the interaction he had with Mr Reurich.
Later that day Mr Reurich wanted to return to the Club. Mr Reurich rang Mr Tripp and had the following conversation, which he recorded and which was the subject of an agreed transcript tendered in evidence (Agreed Transcript):
Mr Reurich: Husky RSL bus.
Mr Tripp: RSL bus, hello?
Mr Reurich: Hello, it’s Peter here. Who am I speaking to?
Mr Tripp: Mal.
Mr Reurich: Malcolm, it’s Peter. Can you pick me up from my place at XX XX Drive please?
Mr Tripp:Mate, you haven’t got your dog with you? Because I can’t have it on the bus.
Mr Reurich: Why not?
Mr Tripp:I can’t have it on the bus.
Mr Reurich: Who told you that?
Mr Tripp:Hey?
Mr Reurich: Why have they not allowed him on the bus? What’s the reason?
Mr Tripp:No mate I can’t have it on the bus.
Mr Reurich: Who told you?
Mr Tripp:Management.
Mr Reurich: Who’s management?
Mr Tripp:Management of the bus.
Mr Reurich: Okay,well I’ll come anyhow, without the dog, but they are wrong because it’s illegal what they are doing by the way. Do you know that?
Mr Reurich agreed to go to the Club on his own. However, he did not stay long and took the very next courtesy bus home because he missed Boofhead and felt anxious and unwell.
3.5 27 December 2014 Incidents
On or about 27 December 2014 at approximately 11.00 am Mr Reurich went to the Club with Boofhead. According to Mr Brooks, Mr Reurich was wearing dirty work clothes and a hard hat and Boofhead smelt, was dirty and had matted fur. The Club had dress regulations and dirty workwear and any form of headwear was not permitted.
Mr Reurich and Mr Brooks’ recollections of the conversation that followed differs. Mr Brooks recalled that the conversation was to the following effect:
Mr Brooks:You can't come in here wearing those clothes and with a work hat. I am going to have to ask you to leave, you know the dress code Peter. Also, your dog is still dirty and smelly.
Mr Reurich: There is nothing wrong with my dog. I am just coming in here to enjoy myself. My clothes are not dirty, I have just come from work. You are bullying me and discriminating against me.
Mr Brooks:I am treating you in the manner as I would treat any other patron who would present to the Club in breach of the dress code. Please leave.
Mr Reurich recalled that he had a conversation with Mr Brooks to the following effect:
Mr Brooks: You can’t bring your dog inside. He smells.
Mr Reurich: What?
Mr Brooks:You can’t bring your dog in, he smells. And his jacket says he is a trainee. He’s not trained. He’s not a service dog. Take him outside. We have a right to refuse service dogs if they are unkempt.
According to Mr Reurich, Mr Brooks then showed Mr Reurich the handwritten extract from the supervisors’ diary set out at [69] above.
Both Mr Reurich and Mr Brooks agreed that the conversation continued to the following effect:
Mr Reurich: How can you say that my dog stinks when you smoke cigarettes?
Mr Brooks: Take the dog out of here, or I will bar you!
Mr Reurich: This is not alright, this is disability discrimination.
Mr Brooks: Take the dog out!
Mr Reurich: Okay, Boof and I are going, but you’re acting unlawfully. This is discrimination.
As Mr Reurich and Boofhead were leaving Mr Brooks said “I’ll call the police” to which Mr Reurich replied “go ahead”.
After lunch Mr Reurich returned to the Club with Boofhead. As they were trying to enter, they were approached by Mr Brooks. They had the following conversation which Mr Reurich recorded and which was in the Agreed Transcript:
Mr Reurich: Can you …
Mr Brooks:Peter.
Mr Reurich: He doesn’t stink anymore. He didn’t stink then.
Mr Brooks:You cannot bring your dog in here.
Mr Reurich: Well you told me the reason was that because …
Mr Brooks:You cannot bring your dog in here.
Mr Reurich: Can you give it to me in writing please? Thank you.
Mr Brooks:I’m telling you now, take your dog out.
Mr Reurich: Can you give it to me in writing please?
Mr Brooks:Take your dog out.
Mr Reurich: Can you give it to me in writing then?
Mr Brooks;Take your dog out.
Mr Reurich: Will you give it to me in writing then?
Mr Brooks:I won’t give it to you in writing now.
Mr Reurich: Okay, well.
Mr Brooks:Take your dog out.
Mr Reurich: When will you give it to me in writing?
Mr Brooks:Talk to the boss next week.
Mr Reurich: Who’s the boss?
Mr Brooks:Derek Ohlston
Mr Reurich: Why can’t I speak to him now?
Mr Brooks:Because he’s not here.
Mr Reurich: Well, you know you’ve got your facts wrong.
Mr Brooks:I’m not going to argue with you mate. Take your dog out or I’ll cite you and give you a month.
Mr Reurich: You are going to give me a month are you?
Mr Brooks:Yep.
Mr Reurich: You might find yourself in court yet. Making threats like that.
Mr Brooks:Take the dog out (inaudible).
Mr Reurich: (inaudible) I’ve got a right to have him by law, by law.
Mr Brooks:I’m not going to argue with you.
Mr Reurich: I know well why …
Mr Brooks:Take the dog out.
Mr Reurich: You are arguing with me because by law he’s allowed …
Mr Brooks:Take the dog out.
Mr Reurich: Come here Boof. Come on mate ... Boofy come here [laughs]. You’re breaking the law by the way. You are breaking the law and you’re happy to break the law.
Mr Brooks:We’ll see you in court. Off you go.
Mr Reurich: Well, you will. Will you send the letter then please?
Mr Brooks:Don’t bring him in again.
Mr Reurich: Send me a letter.
Mr Reurich felt dejected and decided to leave.
Mr Brooks made a contemporaneous note of his dealings with Mr Reurich on 27 December 2014 which recorded (as written):
Peter Reurich entered the club again at approximately 11am with his dog Boofhead. I confronted him in the foyer this time he was wearing shorts and thongs and had a dirty work shirt and a hard hat on.
I told Mr Reurich he can not come into the club dressed like that and Boofhead has not had a bath and still smells and seems to be in the same condition as previously presented, with that Peter continued to abuse me and went out the front and tied his dog to the rail at the stairs where people could possibly trip on the lead. I went outside and told him to untie to dog and remove him from the premises. Mr Reurich then called me a 'Dickhead' and a 'Bully' and said he was going to sue me personally as well as the club.
3.6 28 December 2014 Incident
On 28 December 2014 Mr Reurich once again went to the Club with Boofhead and tried to enter. According to Mr Reurich, Mr Brooks stood in their way. They had the following conversation which was recorded by Mr Reurich and was in the Agreed Transcript:
Mr Reurich: Are you going to let me in today or are you going to act unlawfully again?
Mr Brooks: (inaudible)
Mr Reurich: Because, I’ll tell you what, Cathy is writing a letter to you…
Mr Brooks: Keep the dog out.
Mr Reurich: … to let you know that’s unlawful what you’re doing
Mr Brooks: Don't bring the dog in.
Mr Reurich: So you're going to act unlawfully, you don't care?
Mr Brooks:Don't bring the dog in, alright?
Mr Reurich: Well, if you direct me to take the dog out, I will but you are acting unlawfully, do you know that? You’re aware?
Mr Brooks: Take the dog out.
Mr Reurich: Do you understand? Have you read the rules?
Mr Brooks: Take the dog out.
Mr Reurich: Come Boof. Come here. Sit down, sit. [outside the front door].
Mr Brooks: (inaudible)
Mr Reurich: Trying to humiliate me for.
Mr Brooks: I’m not trying to humiliate you.
A short time later, Mr Reurich and Boofhead went back to the Club and had a further conversation with Mr Brooks at the entrance, which was again recorded by Mr Reurich and was in the Agreed Transcript:
Mr Reurich: You bastards you’re breaking the laws and you know it. I’ve told you number of times. Cathy is actually going to send you a letter (inaudible).
Mr Brooks: We’ve told you a number of times what the management's decision is.
Mr Reurich: The management is wrong and they'll find out because they’re getting a letter from Cathy. She's told me.
Mr Brooks:Write a letter to the board.
Mr Reurich: Well, I’ll have to.
Mr Brooks: In the meantime, this is the third day that I've told you the dog is not allowed in the club.
Mr Reurich: Call the police. You’ve promised to call the police. Call the police.
Mr Brooks:If you continue…
Mr Reurich: Call the police if you have to. I have every right to take him here by law.
Mr Brooks: Not by our law.
Mr Reurich: You can't make a law up. This is a, this is a federal law.
Mr Brooks: Mate, I'm not going to argue with you.
Mr Reurich: Well you’re arguing with me because you can't…
Mr Brooks: I'm not going to argue with you.
Mr Reurich: Well you are arguing with me.
Mr Brooks: Don't bring the dog here again. The next time you bring the dog in the front door, you're going to be suspended for a month and you won’t (unintelligible) right.
Mr Reurich: No, I won't. I won’t, I won’t be suspended for a month and I won’t be going…
Mr Brooks: Won’t you?
Mr Reurich: No I won’t.
Mr Brooks: How about I suspend you for a month now?
Mr Reurich: Well, if you want to try that on, you can try it.
Mr Brooks: Alright, listen to me will ya?
Mr Reurich: Can you give it to me in writing? Look, I'm not arguing with you, I'm, I’m going to come back for the raffles this afternoon right.
Mr Brooks: I'm suspending you now for a month so don't come back.
Mr Reurich: You are? Are you going to be here after lunch?
Mr Brooks: I will be here after lunch.
Mr Reurich: Well, I’m coming here for raffles and I’ve got Boofhead here which I’m entitled to do…
Mr Brooks: You’re suspended for a month.
Mr Reurich: You have no right to do that.
Mr Brooks: And you’ll get a letter from the board.
Mr Reurich: I want to talk to your big boss. Is the big boss going to be here?
Mr Brooks: You will talk to the big boss, don’t worry about that.
Mr Reurich: Can I speak to the big boss now?
Mr Brooks: He's not here on Sunday.
Mr Reurich: Why not?
Mr Brooks: Don't stand here arguing with me, you've got a month, now leave the club.
Mr Reurich: You can't do that. Are you kidding me?
Mr Brooks: Do you think?
Mr Reurich: You're acting unlawfully. You're acting irresponsibly. You're acting unprofessionally.
Mr Brooks: You've got a suspension mate, leave the club. You'll get a letter from the board. Don’t let him in. You’ll get a letter from the board.
Mr Reurich: Nope, you’ll be going to court. I’ll tell you what, I'm going to have you up for defamation, discrimination, discrimination, defamation and you're bullying me
Mr Brooks: Leave the club, leave the club. You're suspended for a month.
Mr Reurich went home with Boofhead and created a petition concerning Boofhead’s smell. That afternoon he returned to the vicinity of the Club with Boofhead. He did not go into the Club but tied Boofhead to a railing and asked people outside the Club if they would sign his petition agreeing that Boofhead did not smell.
Mr Mandavy approached Mr Reurich and they had the following exchange which was recorded by Mr Reurich and was in the Agreed Transcript:
… (inaudible)
Mr Reurich: And they’ve been accusing me of swearing at them (inaudible). No problem, thank you … Jeff tells me that I am barred from the club. Do you agree with that? Because there is no way I could be barred because I’ve done nothing wrong.
Mr Mandavy: Well, if Jeff barred you, that’s all there is (inaudible)…
Mr Brooks then approached Mr Reurich and the conversation, which was once again recorded by Mr Reurich and was in the Agreed Transcript, continued as follows:
Mr Brooks: What’s this?
Mr Reurich: It’s a petition.
Mr Brooks: Right, 50 metres off the premises mate.
Mr Reurich: Why is that? Why is that…
Mr Brooks: Now or I will ring the police and you get a $550 fine.
Mr Reurich: There won’t be no fine from me (inaudible).
Mr Brooks: You don’t think?
Mr Reurich: No.
Mr Brooks:You've got two minutes.
Mr Reurich: You want to screw it up?
Mr Brooks:50 metres off the premises.
Mr Reurich: You want to screw it up?
Mr Brooks:50 metres off the premises.
Mr Reurich: Why are you doing this for? Why are you doing this for?
Mr Brooks:Now.
Mr Reurich: What is your problem? I've done nothing here. I've done nothing wrong.
Mr Brooks:Mate, you're a goose.
Mr Reurich: I'm a goose?
Mr Brooks:You're a goose.
Mr Reurich: You've been talking to the same copper who (inaudible).
Mr Brooks:Get off the premises or I'll the police and you'll get a $550 fine.
Mr Reurich: Mate…
Mr Brooks:You've been warned.
Mr Reurich: I'm going off the premises…
Mr Brooks:You've been warned, you’ve been warned.
Mr Reurich: I'm going off the premises. I'm going off the premises, not because of what you said (inaudible).
Mr Reurich then left the area with Boofhead and in the days that followed continued to ask people to sign his petition.
Mr Brooks did not have a clear recollection of what occurred on 28 December 2014 but accepted, based on the recordings, that he had the conversations set out above. Mr Brooks accepted first, that he suspended Mr Reurich for one month because he thought that Mr Reurich had defied his order not to bring Boofhead into the Club in circumstances where he had been warned he would be suspended if he did so again; and secondly, that he did not suspend Mr Reurich because Boofhead smelt.
Mr Brooks relied on contemporaneous notes comprising two typed notes and a handwritten incident log report. The first typed note is described as Mr Brooks’ contemporaneous note of his dealings with Mr Reurich on 28 December 2014. The second typed note is a composite report of events which took place on 26, 27 and 28 December 2014. Mr Brooks’ first typed note recorded that:
Mr Reurich entered the club yet again on the 28th December at approximately 11am. His dog Boofhead was in the same condition as the previous 2 occasions, I again asked him to leave, Mr Reurich again abused me calling me a 'Dickhead' and 'Bully' and threatened me until such time as I became very short with him and demanded he leave the club premise, at that stage he left.
At approximately 2.30pm that afternoon he again came into the club, I again met him in the foyer, there seemed to be no change in the appearance or smell of Boofhead, as a matter of fact the dog looked as though he did not want to be there as Mr Reuirch was dragging Boofhead along by the lead.
I said to Mr Reurich I have had enough you are now suspended for 1 month. Mr Reurich then said "Fine, now I can sue you and this dirty little shithole of a club". Mr Reurich then went out of the club with a petition that he already had with him.
I witnessed Mr Reurich approach 3 patrons as they attempted to enter the club to sign his petition, they refused and when they came in they said to me "Who is that Dickhead?"
I then went out and said to Mr Reurich you need to leave the premises and not approach of 50 metres of club property as you are now a suspended person. I then witnessed him across the road trying to get people to sign his petition.
Part A of the incident log report recorded that the incident took place at 11.00 am in the reception and that Mr Brooks had informed Mr Reurich on 26 December 2014 that “he would be suspended for a month if he brought his dog back in”. Part B of the incident report recorded that:
Mr Reurich insists on bringing his dog into the Club despite being told on 3 occasions on 26, 27, 28/12-2014. When he came in with the dog on 27/12/14 I told him he had to leave and gave him appropriate documentation photocopys (sic) and that if he came back in with the dog I would suspend him for 1 month and he would have to front the board. The dog stinks and is scruffy and does not look in good condition. When he came in on 28/12/14 at 11am I told him to leave. He refused so I said you are suspended for 1 month. He came back in with the dog at app 14.30 - cont
I told him to leave so he stood outside the door with a petition trying to get people to sign it harassing them. I then went outside and told him to leave the premises 50 m from the carpark. Which after some more complaining he finally left apparently he is suing the Club and me personally.
3.7 Mr Reurich is suspended from the Club
After reviewing incident reports prepared by Mr Brooks in relation to Mr Reurich’s attendance at the Club between 26 and 28 December 2014, Mr Ohlston determined that Mr Reurich’s behaviour was unbecoming of a member of the Club and caused a letter dated 29 December 2014 to be sent to him. Mr Reurich received that letter on about 31 December 2014 after the incident described at [94]-[98] below which also occurred on 31 December 2014.
The letter relevantly said:
On Sunday 29th December, 2014 at approximately 11.00am it is alleged you entered the club with your dog. Supervisor Mr Jeff Brooks approached you and advised you are not allowed into the club with your dog. It is alleged you were informed on numerous occasions that your dog did not meet certain standards of the Disability ACT 1992 and that if you continued to enter the club with your dog you would be suspended for 1 month.
It is also alleged that when Mr Brooks asked you to leave the premises he provided you with documentation. As per the Disability Discrimination Act 1992 amended 2009 your dog "Does not meet standards of hygiene and behaviour that are appropriate for an animal in a public place'. It is further alleged that you attempted to enter the club again at approximately 2.30pm on Sunday 28th December, 2014 and when Mr Brooks asked you to leave the premises you refused and then began harassing Members and Guests entering the club requesting they sign a petition.
As a result of this incident you have been given one (1) month suspension for conduct unbecoming of a member. During this suspension period you are not permitted to enter the club premises or use club facilities.
We would like to advise that this report will be tabled before the Board at the next Board meeting on Wednesday, 28th January, 2015. The Board will then decide if you will be cited to appear before them to answer for your actions which is conduct unbecoming of a member of this club. You will be advised of their decision following that meeting. Until then you remain suspended from the club.
(original emphasis)
3.8 31 December 2014 Incident
On 31 December 2014, Mr Reurich went to the Club with Boofhead, having just returned from working in Sydney. Ms Muscat was informed by Mr Feeney that Mr Reurich was in the foyer with his dog and that he had been asked to leave but that he had requested to speak with a manager. Ms Muscat and Mr Feeney went to the foyer to meet Mr Reurich. Mr Reurich asked for a glass of water and Mr Feeney went to the bar to get it. The conversation between Ms Muscat and Mr Reurich, which was recorded by Mr Reurich and which was in the Agreed Transcript, was as follows:
Ms Muscat: Hey Peter, how you doing?
Mr Reurich: Rita, can I have a drink of water before we talk because I'm really dry. I've had a three hour trip.
Ms Muscat: Yeah I’ll go, I’ll go and get you a glass from the bar.
Mr Reurich: Can you do that for me?
Ms Muscat: Yeah I’ll get you a glass from the bar.
Mr Reurich: Can you do that for me?
Ms Muscat: Yeah, we’ll go and get you a glass from the bar.
Mr Reurich: Okay, well before I talk, I’m really dry.
Ms Muscat: (inaudible)
Mr Reurich: I feel the club’s dealt unfairly with me. And you're breaking the law because that was the law. I think, I think Cathy sent you a second letter this week, did she?
Ms Muscat: No, I haven't received anything.
Mr Reurich: Well she should have done.
Ms Muscat: We have the right to refuse the dog entry.
Mr Reurich: Why? Because it smells?
Ms Muscat:(inaudible)
Mr Reurich: Because, because he smells, are you telling me he smells?
Ms Muscat: Yeah, no.
Mr Reurich: Are you trying to provoke me?
Ms Muscat: No, no.
Mr Reurich: Mate, I've been to various people who tell me he doesn't stink. You’re trying to tell me that my dog smells?
Ms Muscat: Settle down. I'm not yelling at you.
Mr Reurich: I’m not yelling at you, I’m asking for a glass of water.
Ms Muscat: Lower your voice.
Mr Reurich: I’ve got laryngitis because I want a glass of water please.
Ms Muscat: I’m going to get you a glass of water.
Mr Reurich: Thank you.
Ms Muscat: You've been given a letter from the board.
Mr Reurich: I haven't got it yet. I haven't got home yet.
Ms Muscat: We’ve posted it.
Mr Reurich: Yeah.
Ms Muscat: We posted it to you (inaudible).
Mr Reurich: Yeah, mate I know and I’ll be taking you to court for that.
Ms Muscat: (inaudible)
Mr Reurich: Because you know what, you guys are out of line to do that. Youse are breaking the law.
Ms Muscat: We're not breaking the law.
Mr Reurich: You have actually.
Ms Muscat:No we haven’t.
Mr Reurich: You have, I believe so, you’ll find out. I find the whole thing bizarre. I’ve been here on Friday night, they carried on, Saturday night was fine, Sunday night was fine, the next Friday I come here you carry on again and claim my dog stinks, he doesn’t stink, that’s a load of crap. Like you just don’t like animals or something.
Ms Muscat:No I love animals, I’ve got two.
Mr Reurich: Well you’re not showing it.
Ms Muscat:I have dogs of my own.
Mr Reurich: Yeah well that’s okay, that’s alright. You’ll find yourselves in court, that’s it. Right, I’ve got hundreds of people, I’ve got signatures of people already. I was here for two minutes and I got four people sign the book. I got told to leave the premises.
Ms Muscat:(inaudible)
Mr Reurich: No I’m not harassing the patrons at all. I tell you what, I’ll be getting millions of signatures from all your patrons in here and they’re able to come in your club. They will very happily sign that my dog does not stink and you guys are behaving totally miserable. You’re breaking the law by what you’ve done.
Ms Muscat:We’re not, we’re not breaking the law Peter, we’re not breaking the law.
Mr Reurich: Well how can you prove my dog stinks?
Ms Muscat:Because he does.
Mr Reurich: (laughs)
Ms Muscat:That’s the opinion of a lot of people that were in the club, and a lot of patrons and guests that were in the club on the days that you were allowed to have the dog in the club. You’ve left the dog …
Mr Reurich: I don’t believe that, I know what this is all about, this is a bullying tactic.
Ms Muscat:(inaudible)
Mr Reurich: This is a bullying tactic of yours. It is.
Ms Muscat:You have to (inaudible). We’ve had complaints from patrons and I have to take those complaints seriously (inaudible).
Mr Reurich: Yeah.
Ms Muscat:You obviously don’t want to (inaudible).
Mr Reurich: Well I don’t get complaints anywhere else.
Ms Muscat:You’re not allowed in anywhere else either.
Mr Reurich: That’s not true at all.
Ms Muscat:Where are you allowed in?
Mr Reurich: I don’t have to tell you anything. I can go to the shopping centre, I can go anywhere I like.
Ms Muscat:That’s fine.
Mr Reurich: I’ve not been refused by any club I’ve been to. I’ve been to a number of clubs all over Sydney, all over everywhere and no one’s ever suggested he smells. They all, they all welcome him with a smile on their face, they don’t look miserable like you. You guys look miserable, you act miserable and you’ll be ending up in court looking more miserable.
Ms Muscat:Well you take it further.
Mr Reurich: Yeah I will take it further.
Ms Muscat:(inaudible).
Mr Reurich: Ah yeah.
Ms Muscat recalled that in addition to what is set out above, in the course of the conversation, Mr Reurich said words to the following effect:
I am not going to be subject to the board’s autocratic dictatorship at the round table of knowledge. They have no knowledge of anything to do with Boofhead. You are running a grubby little club and I am going to sue you for discrimination. No one here is fit to be in charge.
Ms Muscat recalled that while she was speaking with Mr Reurich she could smell Boofhead who, according to her, was emitting a foul odour. However, Ms Muscat did not inform Mr Reurich during the course of the conversation that she thought Boofhead smelt. She only told him that other people had complained about his smell. Ms Muscat accepted that none of those complaints was recorded in writing. Ms Muscat also recalled that Mr Reurich was yelling loudly at her in what she considered to be a rude and aggressive manner. As they were standing outside the Club other patrons were walking past and staring at what she described as an embarrassing scene, with Mr Reurich asking them “Can you smell my dog? Does it stink?”
On 31 December 2014 Ms Muscat prepared a diary note which, but for the last dot point which she added subsequently, recorded her discussion with Mr Reurich. The diary note does not refer to any complaints made by patrons about Boofhead’s smell nor does it refer to Boofhead in fact smelling.
On a date after 31 December 2014 Ms Muscat prepared a further report of her conversation with Mr Reurich. That report included:
The dog as I remember on the day looked un-kept & quite dirty. The dog is black and white however the dog was not white. The dog was dirty. As I approached Peter I could smell a stench of what can only be described as ‘wet dog’ coming from ‘boofhead’. Like stale sea water. The smell was quite pungent.
This was the first time that Ms Muscat recorded in writing that Boofhead smelt. Ms Muscat said that she prepared this report because she wanted to have something in writing about Boofhead’s smell.
3.9 Mr Reurich lodges a complaint with the AHRC
On about 2 January 2015 Mr Reurich lodged a complaint alleging disability discrimination against the Club with the AHRC (First AHRC Complaint).
3.10 Assessment of Boofhead
In January 2015 Mr Reurich contacted Ms Phillips at mindDog and informed her that he had been suspended from the Club because of Boofhead. Ms Phillips agreed that mindDog would assess Boofhead to ascertain if he was unhealthy or dirty.
On 9 January 2015 Ms Phillips and mindDog’s assessor, Gayl O'Grady, met with Mr Reurich and Boofhead. On that occasion Ms Phillips observed that Boofhead was in good condition, his coat was clean and he had no odour. Ms O’Grady, who assessed Boofhead, observed that he was clean, did not have an unpleasant odour, smelt of salt water, which was not an unpleasant smell, and had quite dry skin so she recommended some natural remedies. Ms O’Grady also observed that, like most mindDog clients, Mr Reurich was highly emotionally invested in the care and wellbeing of Boofhead and that Mr Reurich probably valued Boofhead’s wellbeing more highly than his own. She described Boofhead’s coat as shaggy and that it looked unkempt but was of the opinion that Border Collies have a naturally scruffy coat. Mr Reurich informed Ms O’Grady that Boofhead bathed in the sea at Jervis Bay on a regular basis and was also washed with detergent from time to time. In Ms O’Grady’s experience, dogs that were bathed in this way did not have an offensive odour.
At Mr Reurich’s request, Ms Phillips wrote a letter dated 24 January 2015 to the Club about mindDog and psychiatric assistance dogs in which she stated:
Peter has informed us that he has been denied access to Club Jervis Bay when a staff member named Rita claimed that his mindDog Boofhead was dirty and smelled.
Under the Commonwealth Disability Discrimination Act 1992 Part 9, it is illegal to refuse access to social and sporting clubs because an individual has an assistance dog. Boofhead is such a dog.
Under Section 54A of the Act, an assistance dog may be refused access on the grounds that it is unhealthy or dirty. On that one occasion it is possible (but unlikely) that Boofhead did have an odour.
However, Peter is well within his rights to bring a clean Boofhead into the club.
I and our Senior Assessor, Gayl O'Grady, met with Peter end Boofhead on Friday, January 9, 2015. Boofhead was in good condition, his coat was clean and had no odour.
To claim that a dog is dirty when it is not, in order to refuse access, is an infringement of the law.
If Club Jervis Bay continues to refuse access to Boofhead, then Peter may lay a formal complaint with the Human Rights Commission.
If you need more information about mindDogs please contact me on xxxx.xxx.xxx.
3.11 The period from 31 January 2015 to 2 February 2015
On 31 January 2015, Mr Reurich went to the Club with Boofhead. Mr Brooks informed Mr Reurich that he, but not Boofhead, could come in. Mr Reurich left feeling disappointed as, having waited until what he considered to be the end of the suspension period, he was looking forward to returning to the Club. He did not want to spend time there without Boofhead. Mr Brooks does not recall this conversation but I accept that Mr Reurich attended the Club on 31 January 2015, believing the suspension period had ended, and had a conversation with Mr Brooks as he recalled.
On 1 February 2015 Mr Reurich returned to the Club with Boofhead. On that occasion he had a conversation with Mr Feeney to the following effect:
Mr Feeney: Your dog can’t come in.
Mr Reurich: He is a service animal, that is discrimination.
Mr Feeney: He can’t come in. You’re liable to be barred again.
Mr Reurich: On what basis?
Mr Feeney:Because you are on the premises illegally with your petition. And also because of aggression.
Mr Feeney can vaguely recall having a conversation to this effect.
On 2 February 2015 Mr Reurich once again went to the Club. On that occasion he had a conversation with Mr Ohlston to the following effect:
Mr Reurich: They barred me. And now they say they'll let me in but not the dog. By law, you know that I'm allowed to take my dog in.
Mr Ohlston: Yes, if it meets certain criteria.
Mr Reurich: What's the certain criteria?
Mr Ohlston: Well, one is that it must be clean.
Mr Reurich: Well are you saying he's dirty, still, now?
Mr Ohlston: Well, doesn't look dirty to me.
Mr Reurich: Well, he hasn't been any different from day one to how he is now.
Mr Ohlston: There's other criteria too. He must never leave your side
Mr Reurich: If I tell him to stay somewhere, he stays there. I go to the bar, or the toilet, and he stays there. He's not a problem. And I'm happy to do that.
Mr Ohlston: Well, again, I've heard that you leave him in a room and go away.
Mr Reurich: No, that's not true at all. I've left him sitting there when I go to the bar or the toilet, or get my money to get my raffle. There's nothing wrong with that.
Mr Ohlston: There have been reports about your behaviour.
Mr Reurich: My behaviour? How is my behaviour wrong when I'm asking them to accept the fact that they're breaking the law? Which they were.
Mr Ohlston: I think it's the manner in which you go about it. You're abusing people.
Mr Reurich: That's not true, I never shout at anybody ever. JC accused me of swearing. I definitely did not swear. He tried to use that to throw me out of the Club as well.
Mr Reurich pointed to the letter dated 24 January 2015 from mindDog which he said was near Mr Ohlston and the conversation, which was partially recorded and which was in the Agreed Transcript, continued as follows:
Mr Reurich: I would eat nothing, he told me I had to spend money. That was years ago, forget that, this is now, I took the dog in, they let me in the door, everything’s good, I sat in there like I do now, he come up and accused me of him not being a seeing eye dog, and I said no he's not but he's service dog, he's entitled to be here.
Gave him my card and he ran off with it. I didn't give it to him. I showed it to him, and he’s grabbed it and took off with it. When I asked for it back ten minutes later because I was scared he was going to cut it up, he held it away from me and wouldn't give it to me. I had to get it off him right. That's not good professional behaviour. Your president, I think, who's the president, that little bloke, who's that? Who's the president or was it you here that time?
Mr Ohlston: Rod Simpson.
Mr Reurich: Yeah, that same day, first question he asked me - am I a veteran as if that's got a difference to do, what difference does that make if I'm a veteran or not? Then they were looking for every excuse under the sun to stop him from being here. They couldn't find nothing. So the next three days I was allowed in, there was not a problem, he was well behaved. You can have a look at the tapes, alright.
Mr Ohlston: Mm. Alright.
Mr Reurich: So, is there a problem now or not?
Mr Ohlston: There is, in so far as it's been before the board of directors and the board of directors have said…
Mr Reurich: Have the board of directors got this letter from MindDog, well you've got the letter there, you've seen the letter haven't you? Have you read that?
Mr Ohlston: Of course I have. When it goes before the board, then they can make a decision as far as the dog goes.
Mr Reurich: But what I'm talking about, is you're talking about Club policy and I'm talking about federal law, as stated in there, can you not read? That says federal law.
Mr Ohlston: Did you read the rest of the letter too then?
Mr Reurich: Yes. And the letter says I should be allowed in the Club and this is what she's asking you to do, so have you read the rest of the letter?
Mr Ohlston: Yes.
Mr Reurich: So, in other words you're not going to let the dog in?
Mr Ohlston: Not until, not until the board makes judgment on that letter.
Mr Reurich: Okay but how come I heard, I went to the papers, right and you know that.
Mr Ohlston: Mm hmm.
Mr Reurich: And you talked to Adam.
Mr Ohlston: Mm hmm.
Mr Reurich: And you told Adam…
Mr Ohlston: No, I didn't speak to Adam
Mr Reurich: You didn't speak to Adam?
Mr Ohlston: No.
Mr Reurich: Well who spoke to Adam?
Mr Ohlston: No, not me
Mr Reurich: Somebody spoke to Adam and said if my dog was washed, he’d be allowed in the Club. Now this is after I was barred. Now, I'm only being barred, but what reason did he bar me, do you know what reason he barred me for, can you explain why he barred me?
Mr Ohlston: Initially, from what I can gather and what reports I've seen, it was the state of your dog.
The alleged requirements or conditions with which Mr Reurich said he had to comply were that:
(1)he not enter the Club with Boofhead;
(2)if he entered the Club with Boofhead, Boofhead was to be:
(a)with him at all times;
(b)with him at all times unless he went to the bathroom;
(c)with him at all times unless he went to the bathroom or the bar;
(d)in Mr Reurich’s line of sight;
(3)Boofhead meet unspecified and subjective standards of hygiene and behaviour;
(4)he not ride the courtesy bus with Boofhead; and
(5)Boofhead ride the bus but not go on the seat.
Mr Reurich submitted that these conditions changed over time and were often imposed in an arbitrary and capricious way and without the Club informing him about them.
In my opinion, the only conditions imposed by the Club at various points that were established by the evidence for the purposes of s 6(1)(a) of the Act were that if he entered the Club, Boofhead was to be with Mr Reurich at all times unless he went to the bathroom or the bar, and that Boofhead meet unspecified standards of hygiene.
Next Mr Reurich must establish that because of the disability he does not or would not comply, or is not able or would not be able to comply, with the requirement or condition. Assuming that the requirements or conditions are sufficiently identified, there is no evidence that Mr Reurich does not or would not be able to comply with them because of his disability. First, Mr Reurich could and often did comply with a condition that he was to be with Boofhead at all times except when he went to the bar and bathroom. Secondly, while Mr Reurich would not be able to comply with a condition that Boofhead meet unspecified standards of hygiene that is not because of his disability. In my opinion, people without disabilities would also struggle to meet a requirement that is unspecified and subjective. Thus the requirements of s 6(1)(b) are not met.
The third requirement is that the condition has or is likely to have to the effect of disadvantaging persons with the disability. Given my findings in the preceding paragraph and the cumulative requirements of s 6(1) it is not necessary to consider this factor.
The same analysis as set out above applies in relation to s 6(2) of the DD Act.
It follows that Mr Reurich has not established that the Club indirectly discriminated against him.
6.6 Summary of findings of unlawful discrimination
For the reasons set out above, the Club unlawfully discriminated against Mr Reurich on the following occasions:
·26 December 2014 (Incidents 3 and 4);
·27 December 2014 (Incidents 5 and 6);
·28 December 2014 (Incident 7);
·19 April 2015 (Incident 14);
·12 June 2015 (Incident 20); and
·10 July 2015 (Incident 21).
7. RELIEF
Mr Reurich seeks the relief set out in his further amended originating application as follows:
(i)an apology from the Respondent
(ii)an order declaring that the Respondent committed unlawful discrimination contrary to the [DD Act]
(iii)an order directing the Respondent not to repeat or continue such unlawful conduct to the Applicant or any other person
(iv)an order that the Respondent permit the Applicant to access the Respondent 's premises with his dog
(v)an order that the Respondent not impede the Applicant in respect of the goods, services and facilities provided or made available by the Respondent to the Applicant and his dog
(vi)an order that the Applicant's dog may remain untethered whilst remaining in the Applicant's control whilst on the Respondents premises
(vii)An order reinstating the Applicant's membership, or alternatively an order reimbursing the amount he paid for membership
(viii)An order that the Respondent pay compensation to the Applicant, being:
a. Approximately $500 for the repair or replacement of glasses.
b. Approximately $1000 for damage to the Applicant's mobile phone.
c.$50,000 by way of damages for non-economic loss being for pain and suffering by reason of the hurt, distress, and physical and emotional suffering caused by the Respondent's unlawful interactions with the Applicant since December 2014, and
d.$50,000 as aggravated damages by reason of insult and humiliation caused to the Applicant by the Respondent since December 2014
(ix) An order that the Respondent pay interest on all outstanding amounts.
(x) An order that the Respondent pay the Applicant's costs.
(xi) Such further orders or relief as the Court considers just.
Mr Reurich has prioritised the relief he seeks as follows:
(1)of most concern to him are the declaration of breach and the order directing the Club not to repeat or continue such unlawful conduct in relation to Mr Reurich or any other person;
(2)next are the orders concerning readmission to the Club;
(3)thirdly, an apology;
(4)fourthly, orders for compensation; and
(5)fifthly, orders for damages for non-economic loss and aggravated damages and interest thereon.
7.1 Some principles
Section 46PO(4) of the AHRC Act (see [195] above) sets out the orders the Court can make upon being satisfied that there has been unlawful discrimination by any respondent.
In Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389 at [337] Barker J noted that it was generally accepted that an order for damages by way of compensation for loss or damage suffered because of the conduct of a respondent may be made under s 46PO(4)(d) of the AHRC Act where actual loss or damage has been suffered and there is a causal connection between the loss or damage suffered and the respondent’s conduct.
In Qantas Airways LtdvGama (2008) 167 FCR 537, where at first instance the primary judge found breaches of the Racial Discrimination Act 1975 (Cth) and the DD Act, French and Jacobson JJ said the following at [94] in relation to the primary judge’s assessment of damages for the purposes of s 46PO(4) of the AHRC Act:
His Honour’s reasoning in relation to assessment of damages has already been outlined. The damages which can be awarded under s 46PO(4) of the HREOC Act are damages “by way of compensation for any loss or damage suffered because of the conduct of the respondent”. Such damages are entirely compensatory. In many cases, as in damages awarded under s 82 of the Trade Practices Act 1974 (Ch) the appropriate measure will be analogous to the tortious. That may not be every case. Ultimately it is the words of the statute that set the criterion for any award. In any case the discretionary character of the remedy allows an award of an amount “by way of compensation” which does not fully compensate for the loss suffered. In that respect, however, we are not satisfied that his Honour made any error.
In relation to the assessment of general damages by the primary judge at [99] their Honours said:
Appeal ground 6 asserted that the award of $40,000 by way of general damages was “manifestly excessive”. Qantas pointed out that in his reasons for decision, taking Naidu [2005] NSWSC 618 as a starting point, his Honour posited (although he did not say so expressly) a maximum figure of $200,000 if the discriminatory conduct could have been regarded as having caused his depressive illness. The figure of $40,000 which he selected reflected “… 20% as appropriate for the contribution to his condition of those discriminatory actions that I have found to have been proved” (at [127]). While the reasoning may be less than satisfactory, it reflects the difficulties of assessment of general damages where depressive illness is a serious element of the sequelae of a relatively few and isolated episodes of discriminatory conduct. The damages which may be awarded under s 46PO(4)(d) are in the discretion of the Court. They are “… by way of compensation for any loss or damage suffered because of the conduct of the respondent”. That remedial provision does not require that a damages award must provide full compensation. It may be that a lesser compensatory award will be made according to the circumstances of the case. The fact that the discriminatory conduct was a contributor to the onset of a depressive illness but not its sole cause, may be taken into account when determining what is an appropriate sum “by way of compensation”. In the circumstances we are not satisfied that his Honour erred in setting the award at $40,000. Having regard to the seriousness of the illness which his Honour found was suffered by Mr Gama, it cannot be regarded as excessive. Appeal ground 6 therefore fails.
In Mulligan Mr Mulligan sought a declaratory order that Virgin Australia had committed unlawful discrimination contrary to specified sections of the DD Act, an order directing the respondent not to repeat or continue that unlawful conduct and damages by way of compensation, including aggravated damages and exemplary damages. Mr Mulligan claimed $50,000 for non-economic loss, $50,000 for aggravated damages and $100,000 for exemplary damages to “punish the Respondent for their unlawful conduct and to deter like or further unlawful conduct against [Mr Mulligan] or other disabled customers”: at [158].
In light of its findings, the Full Court considered it appropriate to make a declaratory order of breach but declined to issue the direction to the respondent sought by Mr Mulligan because the Full Court found that there was “no reason to believe that the airline [would] not adhere to its relevant legal obligations having regard to the reasons in the judgment”: at [160]. Relevantly, in relation to damages at [165] and [167]-[168] the Full Court said:
165 Mr Mulligan made no claim for damages for economic loss. His claim was essentially one for general damages for pain and suffering relating to the stress he suffered as a result of Virgin Australia's conduct. As noted above, he also sought aggravated damages and exemplary damages.
…
167 As to his claim for aggravated damages, we accept that such damages are available under s 46PO(4) in an appropriate case to compensate a person where the harm they have suffered has been aggravated by the manner in which the conduct occurred, as well as in other circumstances, such as those discussed in Elliott v Nanda (2001) 111 FCR 240 at 297-298 by Moore J. Again, however, the matter needs to be taken no further because we are not satisfied that Mr Mulligan has identified any conduct on the part of Virgin Australia which would warrant an award of aggravated damages.
168 In these circumstances, the Court considers that Mr Mulligan is entitled to compensatory damages in the amount of $10,000.
7.2 Declaratory orders
I am satisfied that, in light of my findings above, it is appropriate for the Court to make orders declaring that the Club’s conduct in relation to certain incidents on 26, 27 and 28 December 2014, 19 April 2015, 12 June 2015 and 10 July 2015 constituted unlawful discrimination contrary to ss 23(a) and (b), 24(b) and s 27(2)(c) and (d) of the DD Act as specified above.
I am not satisfied that this is an appropriate case in which to make an order directing the Club not to repeat or continue such unlawful discrimination. Mr Reurich is no longer a member of the Club and I do not propose to make orders for his reinstatement as a member (see [358] below). Further, as similarly found in Mulligan at [160], given the circumstances of this proceeding and the findings made, I do not think it is necessary to make the more general order because there is no evidence to suggest that the Club would be likely to repeat or continue this discrimination.
7.3 Orders for reinstatement
The Club submitted that any orders for reinstatement of Mr Reurich to the Club would be oppressive and burdensome and may lead to further litigation. I agree. The relationship between the parties has broken down to such a degree that it would not be productive or realistic to make orders in the nature of reinstatement of Mr Reurich to the Club.
7.4 Apology
Mr Reurich seeks an apology from the Club. He has not provided any proposed form of apology for the Court’s consideration.
The Court has power to order an apology pursuant to s 46PO(4)(b). The circumstances in which this Court has ordered apologies was extensively examined by Mortimer J in Wotton v Queensland (No 5) (2016) 157 ALD 14; [2016] FCA 1457. At [1553]-[1554] her Honour relevantly said:
[1553]… The respondents refer to the observations of Hely J in Jones v Scully (2002) 120 FCR 243; 71 ALD 567; [2002] FCA 1080 (Jones v Scully) at [245] that “the idea of ordering someone to make an apology is a contradiction in terms”. That observation has some force and it has been followed in a number of other decisions of this Court to which the parties did not refer. In Jones v Toben (2002) 71 ALD 629; [2002] FCA 1150, Branson J said (at [106]) that “I do not consider it appropriate to seek to compel the respondent to articulate a sentiment that he plainly enough does not feel”. In Jones v Bible Believers’ Church [2007] FCA 55, Conti J similarly said (at [65]) that such an order would be “inappropriate”.
[1554]All three of those cases dealt with claims of offensive behaviour based on race arising under s 18C of the RDA, but the approach taken by Hely J in Jones v Scully has also been followed in cases dealing with other types of discrimination. In Forest v Queensland Health [2007] FCA 1236, which dealt with disability discrimination, Collier J expressed the view (at [13]) that “a court-ordered apology serves little purpose”. The Full Court allowed an appeal from her Honour’s decision in Queensland (Queensland Health) v Forest (2008) 168 FCR 532; 249 ALR 145; [2008] FCAFC 96 without reference to her Honour’s comments regarding an apology. In Poniatowska v Hickinbotham [2009] FCA 680 (Poniatowska), a sex discrimination case, Mansfield J expanded on the view that an ordered apology might be inappropriate, focusing on whether such an order would go further than was necessary to “recognise” wrongdoing and whether it would result in an apology that lacked sincerity (at [324]–[325]):
I do not propose to direct that any apology should be ordered against any respondent in the particular circumstances. Ms Poniatowska has already received an apology from Ms Sharrad in respect of the June 2005 allegations, and from Mr Lotito in respect of the Lotito allegations. Although I have made adverse findings against the respondents other than Mr A Hickinbotham and Homes, in my discretion under s 46PO(4) of the HREOC Act, I do not propose to order that any further apology be given.
There are a number of reasons for that. In the first place, in my view, the adverse findings made against the respondents in respect of the conduct concerning them individually is sufficient recognition for Ms Poniatowska of the inappropriateness of that conduct. The imposition upon those respondents, who variously denied the conduct specifically attributed to them or in some respects denied its significance, would put them in the position of requiring them to apologise for conduct which they did not accept that they had severally engaged in: see for instance the observations of Branson J in Jones v Toben (2002) 71 ALD 629; [2002] FCA 1150 at [106]; Jones v Bible Believers’ Church [2007] FCA 55 at [65].
In my opinion, it is not appropriate that I order an apology in this case and I do not propose to do so. As has been identified in other cases, it would serve little purpose and would likely lack sincerity. The declarations which will be made in relation to the breaches which have been established are sufficient to record the fact that the Club acted contrary to the DD Act and unlawfully discriminated against Mr Reurich.
7.5 Damages
Mr Reurich seeks orders for payment of damages for actual loss for his glasses, in the sum of approximately $500, and his mobile phone, in the sum of approximately $1000, and for non-economic loss for pain and suffering and aggravated damages.
7.5.1 Actual loss – glasses and mobile phone
Mr Reurich has alleged that his glasses were damaged on 19 December 2014. As I have found that there was no unlawful discrimination on the part of the Club on that day, Mr Reurich is not entitled to that claimed loss.
Mr Reurich says that his mobile phone was damaged on 19 April 2015 during the altercation with Mr Tripp: see [133] above. Although I note that, from the video of the incident on that day, Mr Reurich’s phone continued to work and to record the incident with Mr Tripp. Putting that to one side, while I have found that the Club unlawfully discriminated against Mr Reurich on that date, it is not clear whether or how Mr Reurich’s phone was damaged and if so, whether the alleged damage occurred on 19 April 2015. Even if I was satisfied that the phone was damaged on 19 April 2015 as a result of the contravening conduct, there is no evidence of Mr Reurich’s actual loss, for example, the actual cost of replacement or repair of his mobile phone as a result of the alleged damage.
In those circumstances I am not satisfied that Mr Reurich is entitled to damages by way of compensation for the cost of his glasses and mobile phone.
7.5.2 Non-economic loss for pain and suffering
Mr Reurich claims $50,000 for “pain and suffering by reason of the hurt, distress, and physical and emotional suffering caused by the [Club’s] unlawful interactions with [him] since December 2014”.
Mr Reurich gave evidence of the unhappiness, anxiety, dejection and, in some cases, bouts of depression that he said were caused by the Club’s conduct. For the incidents in relation to which I have found the Club unlawfully discriminated against him, Mr Reurich gave the following evidence as to his pain and suffering:
·in relation to Incidents 3 and 4 which occurred on 26 December 2014 Mr Reurich deposed that he felt unhappy that his dog was excluded by the Club and that Boofhead was not permitted on the courtesy bus. He felt anxious about going to the Club on his own;
·in relation to Incidents 5 and 6 which occurred on 27 December 2014 Mr Reurich deposed that he felt dejected and disappointed when he was again told to “take the dog out”;
·in relation to Incident 7 which occurred on 28 December 2014 Mr Reurich gave evidence that he felt bewildered, in shock and started to feel depressed. He believed that Boofhead did not smell and that the Club was using that as an excuse to bar him because they did not like him and Boofhead;
·in relation to his period of suspension Mr Reurich claimed he experienced periods of anxiety and had trouble sleeping;
·in relation to Incident 14 which occurred on 19 April 2015, following Mr Reurich’s altercation with Mr Tripp, he said he felt upset and depressed;
·following Incident 21 which occurred on 10 July 2015 Mr Reurich said the expulsion caused him to feel upset, sad and embarrassed because, as outlined at [35] above, the Club was a significant place for Mr Reurich. Being barred from the Club has meant that Mr Reurich can no longer go to his local club, has caused him to lose contact with some of the friends he made at the Club and has made him feel that some members of the local community have been turned against him. Mr Reurich said that he feels miserable for long periods of time except when he goes for walks and swims with his friends and Boofhead.
Mr Reurich claims $50,000 for non-economic loss for pain and suffering, an amount which I consider to be excessive, even if Mr Reurich had made out all of his claims.
This is not a case where the Club’s unlawful discrimination caused Mr Reurich’s disability. Rather it exacerbated his symptoms. It caused him to suffer anguish, upset, depression and some level of paranoia, given his feeling that, as a result of the expulsion, some members of the community have turned against him. While I accept that Mr Reurich has suffered as a result of the Club’s unlawful conduct, the impact of that conduct does not fall within the most serious of categories. Further there is no medical evidence that the conduct caused Mr Reurich’s condition to deteriorate. However, the Club was an important part of Mr Reurich’s life. It was a place where he could socialise and meet people. The contravening conduct resulted in him being denied access to the Club and ultimately to his expulsion. That has, as the evidence demonstrates, had a negative impact on Mr Reurich.
Having regard to the number of incidents which I have found amounted to unlawful discrimination as summarised at [347] above, the circumstances of the case and the Mr Reurich’s evidence of the impact of the conduct on him, in my opinion, Mr Reurich is entitled to an amount of $16,000 for non-economic loss for pain and suffering.
7.5.3 Aggravated damages
Mr Reurich also claims aggravated damages which are available under s 46PO(4)(d) of the AHRC Act in an appropriate case: see Mulligan at [167]. He submitted that there may be some circumstances of aggravation, such as when Club staff said things like “I don’t like you”, “I don’t like your dog” and when he was called a “goose”.
In Elliott v Nanda (2001) 111 FCR 240 at [179]-[185] Moore J set out some of the circumstances which may result in an award of aggravated damages. They were the manner in which a proceeding is conducted, for example where a plaintiff suffered added distress because of the method of cross-examination; where the proceeding is “unjustifiable, improper or lacking in bona fides”; and where there is delay occasioned, in that case, by a failure of the respondent to participate in the proceeding before the Human Rights and Equal Opportunity Commission which caused the applicant to suffer additional stress and mental anguish.
None of those or any similar circumstance is present here and the matters relied on by Mr Reurich to give rise to his claim for aggravated damages do not meet the threshold requirements for an award of damages of that nature. I do not think that an award of aggravated damages is warranted in this case.
7.6 Interest
Mr Reurich seeks interest on “all outstanding amounts” pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth). The Club made no submissions in relation to Mr Reurich’s claim for interest.
There is no good cause shown why such an order should not be made. Accordingly, I am satisfied that an order for the payment of interest should be made on the amount to be awarded to Mr Reurich. In the absence of Mr Reurich specifying the date from which he seeks interest, it should be calculated from the date of the filing of the originating application commencing this proceeding.
8. COSTS
The Club requested that I reserve on the question of costs. Accordingly, I will make orders for the parties to file and serve submissions on costs, not exceeding five pages in length, within 3 weeks of the date of publication of these reasons and to indicate in those submissions whether the question of costs can be dealt with on the papers or whether an oral hearing is required.
9. CONCLUSION
I will make declarations and orders giving effect to these reasons.
Finally, I wish to record the Court’s gratitude to Ms Burnett of counsel, who was assisted by Mr Klank, and who appeared pro bono for Mr Reurich. Ms Burnett and Mr Klank were of considerable assistance to the Court.
I certify that the preceding three hundred and seventy-eight (378) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 17 August 2018
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