Saade v The Beverage Boys Pty Ltd t/as theloft & Bungalow8 Bars

[2009] NSWADT 255

CITATION:	Saade v The Beverage Boys Pty Ltd t/as theloft & Bungalow8 Bars [2009] NSWADT 255
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Saade Saade RESPONDENT The Beverage Boys Pty Ltd t/a theloft & Bungalow8 Bars
FILE NUMBER:	081074
HEARING DATES:	23 & 24 April 2009
SUBMISSIONS CLOSED:	8 July 2009
DATE OF DECISION:	30 September 2009
BEFORE:	Scahill A - Judicial Member; Schneeweiss J - Non-Judicial Member ; Fitzgerald R - Non-Judicial Member
CATCHWORDS:	Age Discrimination - Goods and Services
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Alone v State Housing Commission ("Homewest") (1992) EOC 92-392 Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 Chamberlain v The Queen [1984] HCA 7; (1984) 153 CLR 521 Clegg and McEwan [3 of 1993 & 40 of 1995] NSWEOT Commissioner of Corrective Services v Aldridge [2000] NSW ADT AP 5 Department of Health v Arumugam (1987) EOC 92-195(1988) VR 319 Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 (31 March 2000) Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147 Hafez -v- Warilla Women's Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995] NSWEOT Khanna v Ministry of Defence (1981) I.C.R Sullivan v Martin (1992) EOC 92-426
REPRESENTATION:	APPLICANT In person RESPONDENT B Cross, barrister
ORDERS:	1. The complaint is dismissed 2. No order as to costs.

REASONS FOR DECISION

BACKGROUND

1 On 15 February 2008 the Anti-Discrimination Board received a complaint from Dr Saade Saade alleging discrimination on the ground of race by the management of theloft & Bungalow8 Bars in the provision of goods and services.

2 The Complainant alleged in his statement that on 15 August 2007 he and his brother were refused entry to theloft & Bungalow8 Bars by the hotel’s doorman because of their particular ethnic group which Dr Saade identifies as Lebanese. Dr Saade alleges that on 2 November 2007 he and his brother were again denied entry to theloft & Bungalow8 Bars again on the grounds of their race.

3 On 19 February 2008 the Anti-Discrimination Board wrote to the Respondent with the Complainant's allegations and the Respondent replied on 12 March 2008. The Respondent denied they had discriminated against Dr Saade and advised the security guard referred to in Dr Saade’s complaint was a direct employee of a contracted security company, Prime Protection of Prime Group Australia P/L.

4 On 18 March 2008 the Anti-Discrimination Board notified Prime Protection of the complaint and sought a response. On 1 April 2008 the Board received a response from Prime Protection seeking further details. The Board received further information from Dr Saade on 24 April 2008 and from Prime Protection on 30 April 2008.

5 On 23 May 2008 a conciliation conference between Dr Saade and theloft & Bungalow8 Bars was unable to resolve the matter. On 25 June 2008 the Anti-Discrimination Board was advised that the Complainant wanted his matter referred to the Equal Opportunity Division of the Administrative Decisions Tribunal. The matter was referred with the President’s Report dated 9 July 2008.

6 The complaint referred to the Tribunal named the first Respondent as theloft & Bungalow8 Bars and the second Respondent as Prime Protection. However on 22nd July 2008 the President of the ADB wrote to the Registrar of the Equal Opportunity Division of the ADT advising that the Complainant did not wish to pursue his complaint against the second Respondent Prime Protection.

COMPLAINANT'S CASE

7 The hearing proceeded by way of statements with most witnesses called for cross examination. Dr Saade, his brother George Saade and his wife Jamie Saade (nee Khoury) all gave evidence in the Complainant’s case.

8 Dr Saade’s complaint to the ADB forms part of Exhibit 1 [Report from the President of the Anti-Discrimination Board]. The Complainant, Dr Saade, relied on his statement dated 22 January 2009 which was exhibit 2. Dr Saade related two specific incidents in which he said he had been refused entry to theloft & Bungalow8 Bars. The first was on Saturday the 15th of September 2007 at approximately 8 p.m. when Dr Saade and his brother George Saade went to theloft & Bungalow8 Bars.

9 In summary Dr Saade stated that they were sober and well dressed. Dr Saade alleged that there were eight to 10 people in the queue waiting to go into the venue in front of him and his brother George. All those waiting were of an “Anglo-Saxon/ non ethnic” appearance. Those prior to Dr Saade and his brother were not asked whether they were on the guest list and were given entry by the doorman. When Dr Saade and his brother reached the front of the queue the doorman opened and closed his folder and asked Dr Saade whether he was on the guest list to which Dr Saade replied that they were not. The doorman refused Dr Saade and his brother entry. Dr Saade considered that the doorman had been told not to grant entry to him by a message from management through the doorman’s earpiece. Thereafter some discussion took place between the doorman and Dr Saade and his brother. Dr Saade says that as this was occurring the uniformed security guard had moved away from their conversation. Dr Saade alleges that when he asked why they were not being allowed to enter, the doorman moved them aside and said to him words to the effect of

“You know what it's like they don’t let us in. It's our fault, we have created this reputation for ourselves and that's why we are not allowed into clubs. We have no one else to blame it is our fault.”

Dr Saade took this to mean that the doorman was empathising with him in relation to his racial background and that this was the reason why he and his brother had been refused entry. Dr Saade described the doorman as being clean cut aged between 25 to 35 years old with dark hair, thin build and of Mediterranean appearance. After some further discussion with the doorman Dr Saade and his brother left.

10 Dr Saade then sent an email on the following Wednesday 19th of September 2007 to the venue’s management complaining of race discrimination in the venue’s entry policy and specifically in relation to refusal of entry to him and his brother on the 15th September.

He received a response from Scott King the General Manager of the venue and then had a telephone conversation with him. Mr King denied that the venue had a racially discriminatory entry policy.

11 Dr Saade returned to the venue on Friday 2nd November 2007 at approximately 6:30 p.m. again with his brother George. They had arranged to meet two female friends at the venue. Dr Saade alleged that a group of Anglo-Saxon/non-ethnic men in the queue in front of him were permitted entry to the venue without being asked if they were on the guest list. When Dr Saade and his brother came to the front of the queue Dr Saade alleged that he was asked by the doorman whether or not he was on the guest list to which he responded “no.” Dr Saade said that the doorman apologised and said it was guest list only. Dr Saade clarified that the doorman’s name was Aaron and that it was guest list only and that no one other than those on the guest list would be allowed entry. Dr Saade and his brother then left the venue. They were then telephoned by Jamie Khoury who indicated that she and her friend Victoria Harb had both been granted entry without question by the doorman. Dr Saade then approached the doorman again and asked why if it had been guest list only his 2 friends had been allowed in and they had not been asked their names. The doorman indicated that they must have slipped in. Dr Saade asked to speak to Mr King who was not present so he requested to speak to another manager. Dr Saade then spoke with Richard Bryant a manager who had been observing from over the road. Dr Saade questioned Mr Bryant as to why Ms Khoury and Ms Harb were permitted entry when they were not on the guest list. Mr Bryant indicated that they must have slipped through the cracks and that they could not accommodate everybody in Sydney. Dr Saade alleges that while he was having this discussion with Richard Bryant other patrons were allowed entry to the club without being asked whether they were on the guest list. Dr Saade then left the venue. He wrote to Scott King on the 5th November 2007 outlining the events but he did not receive a response to this e-mail. He then made a complaint to the ADB in February 2008.

12 Under cross examination Dr Saade said that it was clearly obvious who was security and who was the doorman. Further he rejected the contention that the venue was close to full at the time of either of his visits. He did not agree that the doorman's statement was made on the basis of empathising with him on the basis of age or gender. He was firm in his belief that the doorman was referring to his Lebanese or Mediterranean ethnic background.

13 Dr Saade also confirmed that Phillip Ryan had visited him at his surgery bringing several photos to him in an effort to identify the doorman to which he had referred as making an empathising statement. Dr Saade confirmed that none of the photos had been of the doorman in question and that none of the witnesses before the Tribunal were the person who had made the empathising statement.

Evidence of George Saade

14 Mr George Saade, Dr Saade Saade’s brother also gave evidence and his statement dated 22nd January 2009 forms part of Exhibit 1. George Saade's version of events confirmed Dr Saade Saade’s evidence of both refusals of entry. He confirmed that on the first occasion of the 15th of September 2007 he had heard the doorman say words to the effect of

“It's our own fault we can't get into any clubs, We have created this reputation. We have no one to blame but ourselves, it's our fault”.

George Saade indicated that he understood this to mean they were not being allowed in because of their ethnic heritage. Under cross examination he rejected the contention that the venue was full on the first visit. He also confirmed that he believed the doorman was empathising with him and his brother on the basis of their Arabic background – and not on any other basis.

He indicated that he and his brother had both been upset and angry because of the way they had been treated on both occasions.

Evidence of Jamie Saade

15 Jamie Saade gave evidence that on the evening of the 2nd November 2007 she had arranged to meet Saade and his brother George at the venue. In her statement she stated that at approximately 7 p.m. she had arrived at the venue with her friend Victoria Harb. She stated that there were no patrons lined up in a queue awaiting admission. She said that they were greeted by a male staff attendant who smiled at them and said words to the effect of “welcome ladies” as they advanced towards the entry door. She confirmed that she had rung Dr Saade while she was inside the premises and had joined him outside the premises as he had been refused admission

RESPONDENT'S CASE

16 Richard Jacob, Richard Bryant, Scott King, Aaron Jennison, James Wicks, Anthony Prior and Phillip Ryan gave evidence on the Respondent's behalf. All except Phillip Ryan had worked for the Respondent at the venue.

All of the Respondent’s employee witnesses confirmed in their evidence a number of points

1. They had never said or heard words to the effect of
“You know what it's like they don't let us in. It is our fault we have created this reputation for ourselves and that's why we are not allowed into clubs. We have no one else to blame it’s our fault.”

2. They had never been instructed to refuse entry to the venue on the basis of race.

3. They had received training in discrimination matters during the course of their employment.

Evidence of Richard Jacob

17 Richard Jacob whose statement is exhibit “C was a senior venue manager at theloft & Bungalow8 Bars at the time of both events complained of. He is also shown to have been working on both evenings on the venue’s roster. He confirmed the common matters listed above. However, Mr. Jacob did not recall working on the evening of the 15th of September 2007 and did not recall the incident described by Dr Saade.

18 Mr Jacobs did recall the incident on 2nd November 2007. He stated that he had been observing the entry queue from a position over the road as was his practice. He specifically denied instructing the doorman to refuse entry to a prospective patron on the ground of race. He recalled speaking to Dr Saade and telling him they were running off the door list of expected guests and that his entry was refused to avoid exceeding licensed maximum numbers at the venue. Mr Jacob recalled that as Dr Saade and George Saade walked away George Saade said in the direction of the bar’s security guard “you will need more security."

Evidence of Phillip Ryan

19 Phillip Ryan Director, Legal and Industrial Affairs for the Australian Hotels Association. provided a statement which is exhibit D. He gave evidence that to assist in identifying the person who had made the alleged remarks confirming race discrimination to Dr Saade on the 15th of September 2007 he had taken three photographs to Dr Saade's dental surgery on 16 December 2008 of 3 employees of the venue - Aaron Jennison, Aaron Nicholas and Jordan Steely. Mr Ryan gave evidence that Dr Saade looked at the photos and said, “ the person I spoke to on 15th of September is not here.”

Evidence of Richard Bryant

20 Richard Bryant provided a statement which is exhibit G. In addition to the common matters above he noted that he was rostered to work as a manager on 15 September 2007 but would have been working inside the venue. He did not recall specifically working on the night. He had become aware of the event with Dr Saade only after he was asked about it later by Scott King.

Evidence of Scott King

21 Scott King had been employed as the general manager of the venue and his statement was Exhibit H. In addition to the common matters above, Mr. King confirmed that he had spoken to Dr Saade after the first incident of the15th of September 2007 when he received an e-mail from Dr Saade on 19th September 2007. Mr King indicated that he had investigated the incident by speaking with the managers on duty James Wicks and Richard Bryant and that neither was aware of the incident. After receiving a further email of complaint from Dr Saade on 5 November 2007 concerning the events of 2nd November, he indicated that he had spoken with Mr Jacob who had confirmed that it had been a busy night and that he had explained to Dr Saade that “we can’t let everyone in.”

22 He stated that he contacted either Aaron Jennison or Aaron Nicholas who confirmed that there had been a man asking lots of questions about refusal of entry and people’s names. He indicated that he had relayed this information to Anthony Prior who had instructed him not to take any further action.

Evidence of Aaron Jennison

23 Aaron Jennison worked as a door host at the venue from December 2006 to May 2008. His statement is exhibit J. In addition to the common matters above Aaron Jennison noted that although the roster showed he had worked on 15 September 2007 – he did not recall anything in particular about the evening. He had first heard about the matter when spoken to by Anthony Prior in October or November 2008. He confirmed that people would be refused entry if the venue was full or the person was not on the guest list. He also conceded that someone could have slipped past him at the door and gained entry – “I’m a 22/23 year old person.” The Tribunal understood this last comment to refer to the potential for a person of this age group to be inattentive.

Evidence of James Wicks

24 Mr Wicks was employed as an operations manager at the venue. His statement is exhibit K. He was rostered to work on 15 September 2007 and would have been the most senior person working. He confirmed the common matters noted above but he did not recall speaking to Dr Saade on the night. He recalled being asked for his recollection of it subsequently by Scott King.

Evidence of Anthony Prior

25 Mr Prior is the Group General Manager – theloft& Bungalow Bars. His statement is exhibit L. Mr. Prior was firm in his denial that the Respondent’s venue refused entry to prospective patrons on unlawfully discriminatory grounds such as race or that it had a preference for “high end people”.

26 In addition to the common matters above he stated that he had been informed of both complaints by Dr Saade about the venue by Scott King. He then outlined his efforts to establish who might have spoken the alleged words to Dr Saade explaining his refusal of entry on racial grounds. Mr. Pryor said and that he had not been able to identify anyone who had spoken these words.

27 He had instructed Scott King not to take any further action about Dr Saade’s second complaint of November 2007 as he thought Dr Saade’s letter was more about social injustices than Dr Saade’s alleged refusal of entry to the venue.

28 The Complainant submitted that:

On both occasions that he had been refused entry subject of the complaint it had been on the ground of his racial appearance. On the first occasion on Saturday 15 September 2007 the doorman had made a statement empathising with Dr Saade and his brother on the ground of their racial appearance using the words “us”, “we” , “our” and “ourselves”. The attribute of race was not explicitly mentioned by the doorman, Dr Saade or his brother. Dr Saade submitted however that being of Lebanese/Mediterranean appearance was the only attribute they shared with the doorman and that the doorman’s words should be interpreted as meaning that they had not been allowed in because of their Lebanese/Mediterranean appearance.

29 On the second occasion in November 2007 when Aaron Jennison, the doorman and Richard Jacob, the Manager, had told him that he and his brother could not get in as they were not on the guest list, the concept of the guest list and capacity restrictions were a shield for racially subjective entry practices. Ms Khoury and Ms Harb had not been on the guest list and had been permitted entry at approximately the same time. Dr Saade submitted that Ms Khoury did not appear to be Lebanese. Again Dr Saade submitted that it could only have been his racial appearance which caused him not to be admitted.

30 The capacity restrictions were not genuine as a basis for the refusal of his entry on either occasion. On the basis of his calculations the venue had a capacity of more than 1,000 and this had neither been exceeded nor approached at either time of his refusal of entry.

31 Dr Saade rejected the Respondent’s submission that he had “spiced up" his evidence. His first email to Bungalow8 which did not quote the full conversation he had with the doorman was intended to start a dialogue with the venue. He had not then embellished the conversation subsequently to support his account of the doorman’s empathising with him on the ground of race.

32 The venue had not been energetic in its investigation of his allegations as

i) they had only provided photos of staff that could not possibly have fitted his description of the doorman who had empathised with his refusal of entry;
ii) Scott King had not questioned security staff as he had requested;
iii) the investigation that Scott King had claimed to have made on 24 September 2007 could not have been completed within the time frame;
iv) his complaints at the time of refusal of entry had not been recorded in the occurrence book; and
v) the Respondent had not presented evidence of CCTV footage of either occasions on which he had been refused entry.

33 George Saade and Jamie Khoury were both credible witnesses corroborating is account on both occasions of refusal of entry.

RESPONDENT'S SUBMISSIONS

34 The Respondent's representative submitted that:

- Dr Saade had moved away from his initial claim that he had been discriminated against on the grounds of his race to a complaint that he had been discriminated against on the grounds of his racial appearance;
- The Respondent’s staff had all denied saying or hearing the words
“You know what it's like they don’t let us in. It's our fault, we have created this reputation for ourselves and that's why we are not allowed into clubs. We have no one else to blame it is our fault.”
- The Respondent had provided clear evidence that it had educated staff and its policies in relation to racial discrimination.
- The Respondent clearly did not have a “whites only” policy as Dr Saade had given evidence that he had entered the venue on previous occasions.
George Saade was not a reliable witness in that he had an extraordinary recollection of a mystery woman standing with him and his brother late in giving his evidence;
- The complainant had behaved unreasonably in refusing to accept other possible explanations for his refusal of entry and in insisting that his racial appearance was the only possible reason;
- The Complainant had “spiced up” his evidence in a number of ways such as inventing a mystery woman, three phantom Anglo-Saxon men who were provided with entry prior to himself on the night 15th of September 2007 and that he had embellished the conversation that he said had occurred after he had made his initial complaint to the venue by e-mail.
- The fact that Ms Khoury who is also Lebanese had gained entry at the same time that Dr Saade was refused entry clearly indicated that there was no racial bias in operation.
- Mr. Jacobs had repeatedly provided reasons on the November occasion to Dr Saade relating to the guest list and capacity limits.
- Dr Saade was mistaken in his estimate of the venue’s capacity and that in fact it had a capacity of 600 people.
- Even accepting Dr Saade’s account of what occurred in September of 2007 there was no mention of race in what the Doorman was alleged to have said.
- In November 2007 Dr Saade was clearly provided with the reasons of guest list and capacity restriction.
-Dr Saade was motivated by personal vendetta as indicated in his first e-mail to the venue of the 19th of September 2007. His words in that e-mail were “ I was overwhelmed by the sense of what was about to happen” were evidence of Dr Saade’s unreadiness to accept the genuine reasons for the refusal of his entry to the venue.
-The venue had undertaken exhaustive efforts to identify who may have said words to Dr Saade as suggested by him on the first occasion in September 2007, including providing him with photos of staff members.
-It was unlikely that the Respondent would circumvent its own policies in relation to racial discrimination by having a door loop which was used surreptitiously;
-CCTV footage carried no audio tracking and therefore was of little benefit in clarifying what might have been said to Dr Saade on either occasion that he was refused entry.
-The case of Sullivan v Martin (1992) EOC 92-426 was authority for the principle that the inability of the Respondent to produce a person who had empathised with the Complainant on the occasion in September 2007 did not warrant the Tribunal drawing an inference that the witness had not been produced because the Respondent had unlawfully discriminated against the Complainant on the grounds of his race.

THE LAW
Issues
35 The relevant sections of the Anti-Discrimination Act 1977 are sections 4, 4A, 7, 19 and 53.

36 Section 4 of the Act provides

“race includes colour, nationality, descent and ethnic, ethno-religious or national origin”

Section 4A of the Act provides that if an act is done for two or more reasons and one of the reasons consists of unlawful discrimination, the act is taken to have been for the unlawful discriminatory reason.

Section 7(1) of the Anti-Discrimination Act 1977 defines discrimination on the ground of race for the purposes of the Act:
A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race
...

Section 19 of the Anti-Discrimination Act 1977 prohibits discrimination in the provision of goods and services. Of relevance to Dr Saade’s complaint of racial discrimination are the following:
Provision of goods and services
It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:
(a) by refusing to provide the person with those goods or services...

Section 53 of the Act says this:
53. An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

37 At the hearing Mr Prior spoke on behalf of the venue and denied that its employees acted in breach of the Act or that Dr Saade was refused entry on the basis of his race.

The Test of Direct Discrimination

38 The proper test to be applied when determining a case of direct race discrimination was considered in Commissioner of Corrective Services v Aldridge [2000] NSW ADT AP 5.

39 In that matter the Tribunal Appeals Panel expressed the test as follows

Did the Commissioner, on the ground of race (or a characteristic of race) treat Mr. Aldridge less favourably than it treated or would have treated a non-Aboriginal person in the same circumstances, or in circumstances which were not materially different?
It is useful, for the purposes of analysis, to identify and label the two key components of this question. The first component is differential treatment and the second is causation. Logically differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation.
For differential treatment to occur the treatment of the complainant must be less favourable than the treatment which was or would have been afforded to a person of a different race (in this case the treatment of a non-Aboriginal person) and that treatment must have occurred in circumstances which are the same or not materially different. The treatment which was afforded to the complainant must be objectively less favourable than the treatment which was actually afforded to a non-Aboriginal person, or which would have been afforded to a non-Aboriginal person, in the same circumstances as the complainant or in circumstances which were not materially different. As Mahoney JA observed in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 19 when discussing this component of the element of direct discrimination:

These words require that there be two situations or sets of circumstances, the actual and the hypothesized, so that it can be determined by a comparison whether treatment in the former is "less favourable" than in the latter.

40 These statements clearly express the relevant law. The question is, did the Respondent, on the ground of Dr Saade’s Lebanese descent, or a characteristic that is generally imputed to persons of Lebanese descent, treat Dr Saade less favourably than it treated or would have treated a person of a different race in the same circumstances, or in circumstances which were not materially different? If so, did it do so because of the complainant’s Lebanese descent.

The Complainant’s case

41 In order to show racial discrimination for the purposes of the Act, Dr Saade is required to show that he was treated less favourably in the circumstances than a person who was not of his race was treated and that he was treated in this way because of his Lebanese descent. That is, Dr Saade must show that his treatment was different by comparison to someone who was not of his race and that it was because of his descent that he was so treated. The issues for the Tribunal to determine are:

(a) whether Dr Saade was treated less favourably by the Respondent’s staff when he tried to enter the Respondent’s premises; and
(b) if so, was the reason for his less favourable treatment his Lebanese descent

42 In proving a breach of the Act, Dr Saade carries the burden of proof to the standard of the balance of probabilities. This standard was restated in Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 as being, in all civil cases, a requirement that the standard of proof to be met by the applicant is on the balance of probabilities.

Findings

43 The Tribunal finds that the respondent provides services within the meaning of section 19 of the Anti –Discrimination Act. Those services include entry to licensed premises.

44 The Respondent does not contest that Dr Saade was refused entry to its premises on the 2 occasions in September and November 2007 subject of this complaint.

45 The Tribunal finds that those services were refused on the nights of 15 September 2007 and 2 November 2007 to the complainant when he was refused entry to the Respondent’s venue.

Direct Discrimination
Identification of race

46 The Tribunal notes that in his evidence Dr Saade referred to his racial appearance variously as being “a particular ethnic group (Lebanese)” Dr Saade also referred to his “‘perceived’ racial orientation”, “non Anglo-Saxon and ethnic” “arab/mediteranian (sic)/Lebanese”.

47 The Tribunal has accepted that Dr Saade’s descent and ethnic origin in terms of the definition of Race in section 4 of the Anti-Discrimination Act 1977 is Lebanese.

Differential Treatment

48 The Tribunal accepts and it was not contested by the Respondent that Dr Saade was not permitted entry to the venue on either occasion complained of.

49 The Tribunal must now determine whether persons who were not perceived to be of Lebanese descent would have been granted entry in circumstances not materially different to those Dr Saade found himself in on both occasions. It would appear to the Tribunal that the appropriate comparator in both instances would be someone not perceived to be of Lebanese descent in the queue behind Dr Saade who was not on the guest list for the evening. This appears to be the appropriate comparator because the Tribunal accepts that it was the concern of the Respondent’s staff that the venue numbers not be exceeded. Hence if Dr Saade was refused entry on the basis that he was not on the guest list and that prospective numbers would be exceeded if he were granted entry at that time then anyone who sought entry very shortly afterwards who was not on the guest list should also have not been permitted entry.

50 Dr Saade and George Saade gave evidence that there were others in the queue prior to them who were Anglo Saxon/not of Lebanese appearance who were permitted entry to the venue on both occasions that they were refused entry. However no evidence was provided to the Tribunal about the racial appearance of any patrons provided entry to the venue after Dr Saade had been refused entry on the first occasion .

51 In relation to the second occasion Dr Saade gave evidence that Jamie Saade who in his opinion does not appear to be of Lebanese descent and who was not on the guest list was permitted entry to the venue around the same time Dr Saade was refused entry on the second occasion He also gave evidence that others were permitted entry to the venue while he was querying the doorman’s decision to refuse him entry having established that he was not on the guest list . However the Tribunal cannot be clear about whether Jamie Saade entered the venue before or after Dr Saade Nor can the Tribunal be clear about the door staff’s view of Jamie Saade’s racial appearance. Further the Tribunal cannot be clear about the racial appearance of those who entered the venue while Dr Saade was querying his refusal of entry with the door staff.

52 The respondent’s witnesses have given evidence that on both occasions there were guest lists with approximate numbers that the Respondent was using to regulate entry to the venue in order not to exceed lawful capacity. The respondent’s argument would appear to be that others were permitted entry in circumstances that were materially different in that those who were permitted entry at around the same time as Dr Saade were either on the guest list for the evening or that their entry would not cause lawful numbers to be exceeded.

53 The Tribunal cannot find that the first leg of the definition of direct discrimination is satisfied. That is the Tribunal cannot find that Dr Saade was refused entry and therefore treated differently to others in circumstances that were not materially different in terms of section 7 of the Act.

Causation

54 It is clear that the Complainant, Dr Saade feels aggrieved by the events that have occurred. It is also clear that Dr Saade believes that he has been subject to racial discrimination.

55 Further the Tribunal understands that it is Dr Saade’s contention in terms of section 7(2) that he was refused entry to the venue on the ground of a characteristic that is generally imputed to persons of that race - that is that persons of Lebanese descent are “trouble” and are therefore not suitable for admission to the Respondent’s venue

56 However all of the witnesses employed by the Respondent who were cross examined by Dr Saade deny having refused entry to Dr Saade on the basis of his race and deny having heard the statement on which Dr Saade relies as evidence of the racial basis for his refusal of entry in September 2007. No-one has been identified by either the Complainant or the Respondent as having made the alleged statement concerning racial reasons for Dr Saade’s refusal of entry in September 2007.

57 Dr Saade does not provide any direct evidence of racial motivation in his second refusal of entry to the venue.

58 The Tribunal recognises the difficulty faced by an applicant in discharging the onus of proof in the absence of direct evidence that the treatment suffered by the applicant was on the ground of the applicant's race. As observed by the Western Australian Equal Opportunity Commission in Alone v State HousingCommission ("Homewest") (1992) EOC 92-392 at p. 78,789, racial discrimination, of its very nature, is

"... ordinarily something which is manifested indirectly and proved (where it exists) by evidence normally called circumstantial."

59 Dr Saade and George Saade were both adamant in relating the conversation in September 2007 with the person at the door which caused them to believe that they were being refused entry on the grounds of their race. It has not been possible to identify the person alleged to have made these remarks at this hearing nor to test the meaning of the apparent empathising with Dr Saade and his brother which did not include explicit references to race.

60 The Tribunal finds the Complainant and his witnesses to be credible.

However in the absence of an identified person who made the alleged comments to Dr Saade and his brother on the first occasion complained of the Tribunal cannot on the balance of probabilities find that these words were spoken.

Inferences

61 In cases where there is no direct evidence of the discrimination, the applicant may use in support inferences drawn from the primary facts: see Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147; Khanna v Ministry of Defence (1981) I.C.R.; Edwards v Bourke Bowling Club Limited [2000] NSWADT 31. It is also well established that an inference can be drawn from a combination of facts, none of which if viewed alone would support the same inference. Chamberlain v The Queen [1984] HCA 7; (1984) 153 CLR 521.

62 However, where there is another more probable and innocent, explanation available on the evidence the Tribunal cannot infer unlawful discrimination. Edwards v Bourke Bowling Club Limited [2000] NSWADT 31. : Department of Health v Arumugam (1987) EOC 92-195; (1988) VR 319; Hafez -v- Warilla Women's Refuge Ltd, Clegg and McEwan [3 of 1993 & 40 of 1995] NSWEOT.

63 In this Inquiry, we have to undertake the same exercise, asking the question whether the evidence taken as a whole supports the inference that the applicant's race was at least one of the reasons for the refusal of entry. The applicant need not establish that race was the only reason for his alleged discriminatory treatment: s 4A. The Respondent’s witnesses have been uniform in their explanations that Dr Saade and his brother were refused entry to the venue on the basis of limited venue capacity reserved for those on a guest list on both the September and November 2007 occasions. The Respondent provided evidence of the venue’s capacity and the Guest Booking Lists with size of expected parties for both the September and November 2007 occasions. The Respondent’s Managers on duty noted the necessity from time to time to make a judgment about likely numbers against the venue’s capacity and licensing restrictions.

64 The evidence, which was presented to the Tribunal, is not sufficient to enable the Tribunal to be satisfied on the balance of probabilities that an act of racial discrimination against Dr Saade took place on either alleged occasions within the meaning of the Anti-Discrimination Act. The Tribunal cannot be satisfied that Dr Saade was refused entry to the venue on either occasion on the basis of his race. The belief of the Complainant, however sincerely held does not alone provide sufficient evidence for his claims.

65 The Complainant’s motivation in bringing the case was not in the Tribunal’s view as suggested by the Respondent blinded by his anger in being refused entry to the venue.

66 The Tribunal accepts that the Complainant has genuinely experienced the refusals of entry as racially based refusals. The Tribunal accepts that the Complainant’s motivation in bringing the complaint is to address issues of racial discrimination.

67 However the Tribunal is bound by the legal requirements set out in the Anti-Discrimination Act.

Decision

For these reasons, the Tribunal finds that insufficient evidence has been provided to substantiate the complaint and accordingly dismisses the complaint.

The Tribunal makes no order as to costs.