Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd - [2017] NSWCATAD 355

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2017] NSWCATAD 355
Hearing dates: 13-15 June 2017, 25 July 2017 and 3 August 2017 (final submissions)
Date of orders: 30 November 2017
Decision date: 30 November 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Britton, Principal Member
F Given, General Member
Decision:
The Complaint is dismissed under s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW).

Catchwords: HUMAN RIGHTS - discrimination - less favourable treatment - assessment of less favourable treatment where no actual comparator
HUMAN RIGHTS - discrimination - causation - meaning of the expression “on the ground of” in s 7(1) of the Anti-Discrimination Act 1977 (NSW)
STATUTORY INTERPRETATION - whether a failure to act can constitute a “detriment” in s 8(2)(c) of the Anti-Discrimination Act 1977 (NSW)
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Interpretation Act 1987 (NSW)
Cases Cited: Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
Bonella v Wollongong City Council [2001] NSWADT 194
Burns v Sunol (No 2) [2017] NSWCATAD 236
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Martin v McKensey (No. 2) [2003] NSWADT 126 McEvoy v Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273
NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2016] NSWCATAD37
Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
Sivananthan v Commissioner of Police [2001] NSWADT 44
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Interpretation Act 1987 (NSW)
Category: Principal judgment
Parties: Etuati Seupule-Feau (Applicant)
Seventh Day Adventist Church (North NSW Conference) Ltd (Respondent)
Representation:
Pastor A Saunders (Agent for Applicant)

Counsel:
N Read (Respondent)
Solicitors:
MRM Lawyers (Respondent)

File Number(s): 2015/00382980

REASONS FOR DECISION

In August 2013, Etuati Seupule-Feau was dismissed from his role as pastor of the Seventh-Day Adventist Church, a position he had held for eight years. Mr Seupule-Feau lodged a complaint with the President of the Anti-Discrimination Board, alleging that by dismissing him from employment, and rejecting his application to be ordained as a Minister, the Church discriminated him on the ground of race (the Complaint). Mr Seupule-Feau nominates his race as “Western Samoan”.
After the referral of the Complaint to the NSW Civil and Administrative Tribunal of (NCAT), the Church, or more correctly, the North NSW Conference Ltd (the NNSW Conference), the respondent in these proceedings, applied for the Complaint to be summarily dismissed on the ground that it lacked substance: s 102 of the Anti-Discrimination Act 1977 (NSW) (the Act). The Tribunal (differently constituted), dismissed that application: Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2016] NSWCATAD37. The Church unsuccessfully appealed that decision: Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256.
For the reasons that follow, we have decided the Complaint must be dismissed.

Scope of the Complaint

In Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2016] NSWCATAD 37, the Tribunal determined that the Complaint did not extend to allegations of racial vilification (s 20C of the Act) and victimisation (s 50 of the Act). In its Reasons at [23], the Tribunal outlined seven allegations said to amount to unlawful discrimination under s 8(2) of the Act which fell within the scope of the Complaint. The parties agree that the parameters of the Complaint do not extend beyond these seven allegations.

Background

To put the evidence and the submissions made by the parties about the seven allegations in context, it is useful to set out some background facts about the structure of the Church and the history to the decision to terminate Mr Seupule-Feau’s employment.

Church structure

The local church is the primary operating unit within the Seventh Day Adventist Church (the Church). The local church is generally headed by a pastor who is assisted in the discharge of their role by a “council of elders”, constituted by members elected from the congregation.
The Church is hierarchical in structure. Sitting immediately above the local church is the “local conference”. The NNSW Conference, is one of nine local conferences in Australia and is responsible for the management of 90 local churches within the north-western region of New South Wales. Each local church where Mr Seupule-Feau served as pastor — Moree, Inverell and Narrabri — falls within the NNSW Conference.
Above the NNSW Conference is the Australian Union Conference, to which all local conferences in Australia belong. Above the Australian Union Conference is the South Pacific Division, which oversees Australia, New Zealand, Papua New Guinea and the South Pacific Islands. The South Pacific Division is one of thirteen divisions under the overall direction of the General Conference of the Seventh-Day Adventist Church in the United States of America.

Mr Seupule-Feau’s employment with the Church

In 2008 Mr Seupule-Feau was appointed pastor of the Moree and Inverell churches. Moree and Inverell are about 110 kilometres apart.

The Nixon report

In 2009 a number of members of the Inverell congregation raised concerns about Mr Seupule-Feau. The Conference claims that the reported concerns included: a report made to police by Mr Seupule-Feau about a member of the congregation, “division and unrest” said to have been caused by Mr Seupule-Feau and the unwillingness of members of the Inverell congregation to stand for church office. The NNSW Conference appointed Pastor Roger Nixon to investigate these reported concerns.
In a report dated 31 August 2009 (the Nixon report), Pastor Nixon described his brief as being “to interview a number of people in an effort to better understand the truth of what lay behind what appeared to be a seriously dysfunctional situation”. As part of the investigation, Pastor Nixon interviewed 23 members of the Inverell congregation including members of the Council of Elders and members of the congregation who did not hold office. In the interviews, Pastor Nixon canvassed a range of topics, including the governance of the Inverell church and Mr Seupule-Feau’s style of leadership.
Under the heading, “Why are some people unwilling to accept leadership roles?” Pastor Nixon concluded that “primarily this comes back to how they view Eti’s leadership style”. Each of the recorded answers to this question was negative and included: “poor communication”; “his anger scares me” and “unpredictable and intimidating”.
Pastor Nixon wrote that in answer to the question, “How did Eti’s pastoral management work out during the first 6/9/12 months of holding office?” a clear majority of interviewees stated that Mr Seupule-Feau did “quite well” for most of 2008 but things appeared to deteriorate “after the 2008 October Camp and when members of his family moved south”.
Pastor Nixon wrote that the responses to the question “What do you see as strengths in Eti’s leadership? What does he do well?” included:

Can be friendly and charming.

Can relate to the disenfranchised.

Theology is quite sound.

Early in his ministry he was quite affirming.

The responses to the question, “How do you think Eti could strengthen his leadership?”, included:

He really does need professional help.

Eti should be given help in understanding how to earn respect and maintain it.

Training in how to plan, team-build and how to cope with suggestions and criticisms.

Pastor Nixon wrote that those interviewees who expressed positive views about Mr Seupule-Feau were in the main elderly and not office bearers of the Church. The reported comments made by this group included:

A spiritual leader and a good friend.

This is a race matter. There’s a colour bias in Inverell.

Eti inherited these problems.

The Pastor is a decent honest man.

Eti tried to turn the church around but this was not appreciated.

The pastor visits me most weeks and he is good to me.

I am upset with the Conference sending this man to this quagmire at Inverell. This Church is run by women.

The services are too long and this is hard on the elderly.

More could be done evangelistically.

I don't think Eti can survive. I haven't seen him put a foot wrong.

Eti’s kids are victims of bullying by other church kids.

As a man, I like him but he hasn't visited me since 13 May.

The pastor is an honourable man. He asked for forgiveness.

Pastor Nixon wrote that in answer to the question was it possible for Mr Seupule-Feau to continue ministering at Inverell, eight “mostly retired” interviewees stated yes; ten disagreed and five were ambivalent and “unsettled about his leadership style”.
In conclusion Pastor Nixon wrote:

A PERSONAL REFLECTION
Given the comparatively small size of the Inverell Church, the congregation is blessed with a reasonable number of gifted, committed and energetic Christian lay leaders. It has been quite distressing to share something of their pain during the interview sessions but they have welcomed this opportunity for it has offered them relief and hopefully some measure of light for the future.
Pastor Eti, like all of us, has faults but as one elder said, he is probably not to blame for everything. Another in deep reflection said, "I think Eti has stopped being our minister. On balance, and everything considered, he needs a change and our church needs stability.
Some of those not in leadership roles, particularly the elderly who feel blessed by Eti’s ministry, would, in the event of him being posted elsewhere, need to be ministered to with wisdom and care.
Regardless of what happens, Eti, in my view, needs well qualified professional help. His wife, Peni, also needs to be encouraged to stand with him in his ministry.

Mr Seupule-Feau was not provided with a copy of the Nixon report until 2013.

First warning letter

On 1 September 2009, then President of the NNSW Conference, John Lang, wrote to Mr Seupule-Feau advising that having considered the Nixon report a decision had been made to remove him as pastor of the Inverell congregation. Pastor Lang wrote that the letter constituted a “first and final warning”.
In that letter, Pastor Lang referred to his meeting with Mr Seupule-Feau and Pastor Gordon Smith on 17 August 2009 where the following issues were discussed:

Mr Seupule-Feau’s action in reporting a member of the congregation to police, following a visit to Mr Seupule-Feau’s home to discuss alleged cyber-bullying by Mr Seupule-Feau’s daughter

The alleged unwillingness of “members of the Inverell Church to take up leadership roles because they felt there was spiritual bullying taking place by you … This approach in your role of pastor may be appropriate in some cultures but is totally out of place in the Australian culture”.

Mr Seupule-Feau’s stated claim that the reason for the issues at Inverell were “his colour”: “I spoke strongly against this and stated that this was not in my opinion the reason at all. I spoke of the need to minister to all people in our churches and if we were going to go down the road of race there would not be a church other than an indigenous or Samoan church that you would be able to minister in.”

Pastor Lang wrote “[T]here seems to be a serious breakdown of your professional conduct as a minister” and that the following issues must be addressed:

“1    The Spiritual manipulation and Spiritual blackmail of church members and Conference administrators who do not agree with you is totally inappropriate and quite unprofessional. It must not happen again.
2.   The manipulation of truth and incorrect information given to church members and Conference administrators is most unprofessional conduct by you and must cease.
3.   There has been a serious demonstration of poor judgment by you in your role as the church's representative. This has led directly to your credibility as the Inverell Church pastor being significantly compromised and has damaged the good name of the church and its capacity to deliver its mission.
4   You have shown a reluctance to seek or accept advice from your supervisors and act on that advice. Again, this reflects poorly on your judgment and professionalism.
5   While your family arrangements are a personal matter I need to point out that as the representative of the Seventh-day Adventist Church your current family arrangements are a matter of concern. You living in Inverell and your wife in the Cooranbong area for extended periods of time, thus separating your family, is unacceptable to your ministry at your churches at Inverell and Moree. You were invited to take this position as a family unit and you need to model the Adventist Church's family values if your pastoral ministry is to remain credible. Pr Nixon's investigation has confirmed that this matter has raised serious questions about you as a minister of the Inverell church.”

Members of the Moree and Inverell congregations write in defence of Mr Seupule-Feau

In a letter dated 15 September 2009, 15 members of the Inverell congregation signed a letter addressed to Dr Barry Oliver, the President of the South Pacific Division of the Church expressing their support for Mr Seupule-Feau (the Inverell letter). They wrote that they agreed with Pastor Nixon’s observation that the congregation appeared to be split into two camps: those who support and those who oppose Mr Seupule-Feau. They wrote that many within the congregation did not share the views of “the leadership group” and that the situation at Inverell was to be contrasted with Moree where the church “appears to have flourished”.
The letter continued:

No evidence or accusations were made about moral inappropriate behaviour or financial mismanagement or any given reasons from the Church Manual for getting rid of a pastor. It was stated that this is not the Pacific Island where the pastor calls the shots. Some very inappropriate racial comments have been made, one member even stating that maybe Pastor Eti should go back and teach the natives, implying that we are above being taught and led by a Samoan or a Pacific Islander.
This situation surely does not have God's hand over the direction being taken when there is such a lack of humility and compassion.
We have observed Pastor Eti carrying himself with dignity and humility through a time of humiliation and insults. Our voice deserves to be heard.

Two weeks later 25 members of the Moree Congregation wrote to Dr Oliver in similar terms (the Moree letter).

Church Elder retracts statement in the Moree letter

On 23 October 2009, one of the signatories of the Moree letter, church elder Robbie Noordzy, wrote to Dr Oliver, apologising for the distress and embarrassment caused to Pastor Nixon for the statement contained in the Moree letter that he had apparently favoured the leadership group and “not even taking the time to sit down and talk with Eti”. Mr Noordzy wrote that he was told by Dr Oliver that this assertion was incorrect and Pastor Nixon had in fact interviewed 23 members of the congregation and met with Mr Seupule-Feau for 90 minutes.
Three years later, Mr Noordzy was to claim that Mr Seupule-Feau dictated the Moree letter, a claim vigorously denied by Mr Seupule-Feau.

Pastor Lang accuses Mr Seupule-Feau of feeding inaccurate information to members of the Moree congregation

In an undated letter sent on 26 October 2009, Pastor Lang accused Mr Seupule-Feau of feeding members of the congregation “misinformation and lies”. Pastor Lang identified 10 statements in the Moree letter he claimed were inaccurate. These included:

“Considering the damning warning letter (which we have heard about but yet to see personally)”. Pastor Lang wrote that Mr Seupule-Feau was the only person he had spoken to about the first warning letter or given a copy of that letter.

“Pastor Nixon supposedly conducted an exhaustive review with members apparently favouring the leadership group not even taking the time to sit down and talk with Eti.” Pastor Lang claimed that Pastor Nixon had met with Mr Seupule-Feau for 90 minutes. In addition, he wrote that Pastor Nixon visited far more people than on the list supplied by Mr Seupule-Feau.

Pastor Lang wrote that the decision to investigate the complaints in Inverell was taken to “assist you in your ministry but until you are willing to see that there are areas that need attention we are not going to be able to assist you”. He went on to write that “to misrepresent the conference with these inaccurate statements is terribly wrong and is not helping you in your ongoing ministry”. He requested that Mr Seupule-Feau analyse the Moree letter and give him a reply by 31 October 2009.
In an email to Pastor Lang sent on 28 October 2009, Mr Seupule-Feau denied having disclosed the contents of the first warning letter and stated that his wife told him that the letter had been read by Pastor Smith at the meetings at “Big Camp”. He wrote it be “an injustice … to respond to [the Moree letter] as I did not write it”.

Second warning letter

In a “Second Letter of Warning" addressed to Mr Seupule-Feau dated 16 November 2009, Pastor Lang alleged that during a meeting on 3 November 2009, attended by Mr Seupule-Feau, Pastor Gordon Smith and himself, Mr Seupule-Feau was untruthful, and, on two occasions attempted to bully and intimidate Pastor Smith.
Pastor Lang wrote that the Conference had decided to remove Mr Seupule-Feau from Inverell and place him at Moree and Narrabri. In addition, he stated that Mr Seupule-Feau would be required to live in Moree. He explained that he was unable to accommodate Mr Seupule-Feau’s request to be transferred to a position in Cooranbong or the NSW Central Coast because there were no positions in that area. However, Pastor Lang wrote that at its expense the Church was prepared to relocate Mr Seupule-Feau to Cooranbong but pointed out that for the foreseeable future it was unlikely there would be any positions available in the Ministry in that area.
Pastor Lang wrote the concerns of unprofessional conduct — misrepresenting the truth, intimidating and bullying, poor judgement and failure to respond in a timely manner to a reasonable request — were not “new concerns” and “any further unprofessional conduct on your part may result in your dismissal from church employment”.
Pastor Lang requested Mr Seupule-Feau to comply with the requests he had made in the first warning letter to (i) develop strategies with Pastor Smith to address the issue of concerns, and (ii) respond to the concerns he raised about the Moree letter.

Mr Seupule-Feau responds to the first warning letter

In a letter dated 30 November 2009 addressed to Pastor Lang and copied to the Executive Committee of the NNSW Conference, Mr Seupule-Feau wrote that he was “shocked” to receive the second warning letter, especially given that after the meeting on 3 November 2009 [with Pastors Lang and Smith and himself], Pastor Lang “put [his] arms around me and said… ‘now go and enjoy your ministry’”. Mr Seupule-Feau wrote that at that meeting he and his wife felt it was pointless to respond to the allegations made by Pastor Lang as it appeared “whatever we had to say would be seen as untruths and half-truths”.
Mr Seupule-Feau rejected the allegation that during the meeting of 3 November 2009 he had attempted to intimate Pastor Smith. He claimed the reason that he and his wife stared at Pastor Smith was that they felt he had betrayed their family, pointing out that he had encouraged them to raise their concerns with Pastor Lang.

Mr Seupule-Feau wrote that his repeated requests to Pastor Lang for clarification about the allegations of “spiritual blackmailing etc”, made in the first warning letter, had not been answered. In addition, he rejected the allegation that he failed to respond to the Moree letter, pointing out that he informed Pastor Lang by letter on 28 October 2009 that it was “unethical and unwise” to respond to that letter as it was not written by him.
Mr Seupule-Feau set out in some detail various changes made at the Inverell church which corresponded with the time Daryl Hall joined the congregation. He wrote those changes were introduced without consultation with the “minister, church board of the church”. He went on to list a number of “inappropriate and offensive racial comments” said to have made by Mr Hall and other members of the Inverell congregation:

This is not the Pacific Islands where the chief speaks and everyone runs

Us Aussies when we feel we have been challenged, we can tell you to f…k off.

You have to do your time until you are part of the furniture.

Is lunch on 2nd and 4th Sabbath a Pacific Island thing because they like socialising?

Pacific Islands is an abusive culture.

Mr Seupule-Feau went on to write that Pastor Smith reported on 5 March 2009 that Pastor Lang had commented that he did not want “another Samoan at the Samoan Newcastle Multicultural Church”. Mr Seupule-Feau wrote he was willing to work with Pastor Smith on a strategy to address the issues raised by Pastor Lang in his letter of 1 September 2009, however, he was very concerned that Pastor Lang told a Moree elder that his conduct “raised serious questions in regards to integrity, judgement and use of inappropriate and intimidating communication”.
Mr Seupule-Feau requested a full copy of the Nixon report and the letter sent to the Inverell church announcing that he had been relieved of his duties.
In closing, Mr Seupule-Feau wrote that he wished to continue with the “ministry that God has given me”:

I am still only a relatively new minister and want to know that I can depend on your professional integrity, wisdom and guidance as work together for God’s kingdom and soon return of our Lord and saviour.

Breakaway group forms within the Moree congregation

Between 2010 and 2012, Mr Seupule-Feau was the pastor of the Moree and Narrabri congregations. No disciplinary action was taken against Mr Seupule-Feau during that period. At the end of 2011, Pastor Lang retired as President of the NNSW Conference.
Pastor Paul Geelan, General Secretary of the NNSW Conference since September 2011, claims he first became aware of the issues at the Moree church in 2012 when he received complaints from members of the congregation. According to Pastor Geelan, the complaints included allegations of:

Mr Seupule-Feau providing “no leadership or planning for evangelism”.

Board meetings being “very long and frustrating”.

Mr Seupule-Feau telling “lies and half-truths in order to get his way”.

On 18 October 2012, apparently at Pastor Geelan’s request, Pastors Lang and Smith travelled to Moree to investigate the decision taken by members of the Moree congregation of Fijian origin, to no longer worship at the Moree church. Pastors Lang and Smith interviewed a number of members of the Moree congregation: long-time church members Wanda and Ross Richards, Church Treasurer, Robbie Noordzy, retired Minster and respected elder, Pastor Taranga and his two adult daughters and Senior Elder, Jerrard Henley.
In a report dated 22 October 2012, Pastor Lang wrote that the Moree letter was the genesis of the decision made by the Fijian members of the Moree congregation to break away from the congregation: “It has brought about a loss of faith for the Fijians which has resulted in total loss of confidence in the pastor”.
In his report, Pastor Lang reproduced an email sent by Mr Noodzy to Mr Seupule-Feau on 28 August 2012, in which Mr Noodzy claimed that Mr Seupule-Feau, was “totally involved in the [Moree] letter” and over time he had come to wonder whether “any of it was true”.
Pastor Lang wrote that during interview, Pastor Taranga stated the following factors contributed to the decision of the Fijian members of the Moree Church to leave the congregation: Mr Seupule-Feau’s failure to apologise for his role in the Moree letter; emails sent by members of the congregation criticising each other; frustration over the length of Board meetings; no planning for and leadership in, Evangelism.
Pastor Lang wrote that in his opinion, “the Fijians” will not return to the worship at Moree church “until there is a change in pastor and the Church operated as a true Seventh-day Adventist church.”
Pastor Lang wrote that when the second warning letter was issued, it was assumed incorrectly that “things were going well at Moree” and now, as this proved not to be the case, the issue must be addressed. He wrote “it makes me feel sick that a Minister of the Gospel would lie and tell so many untruths”.
Pastor Smith prepared a separate report to the same effect.

Ordination interview

In 2012, Mr Seupule-Feau applied to be ordained as a Minister of the Church, on his account after being encouraged to do so by Pastor Lawman. On 8 November 2012, he was interviewed by the Church Ordination Committee consisting of Pastor Lawman, (then) NNSW Conference President; David Tasker, Field Secretary, South Pacific Division of the Church, Pastor Graeme Christian, Ministerial Secretary of the Australian Union Conference and Pastor Smith.
In a document headed “Profile for Ordination candidate”, the Secretary of the Ordination Committee Pastor Smith, wrote:

During the course of the interview, much of which Eti said did not ring true. In fact, Dr Tasker commented later “all along he sensed that Eti was trying to figure out what we wanted to know and framing an answer we would want to hear, and wondering what if anything said, was genuinely true”. Knowing that the Church in Moree is disintegrating and following a similar path to the Inverell church while he was pastoring to it a couple of years ago, the committee felt there were some major issues needing to be addressed, and would not recommend any consideration at all for ordination.

Pastor Smith wrote that during the interview, Mr Seupule-Feau claimed that his mentoring with John Lang was “going very well and comfortably” and his relationship with his local church leadership was "brilliant”. Pastor Smith interposed “the reality is he will not meet with John alone, as he expressed he doesn’t have any trust there, and invites one of his members to be present every time he meets John – which is nearly driving John insane, they never feel free to talk about over major issues”.

Pastors Lawman and Geelan meet with Mr Seupule-Feau

On 23 February 2013 Pastors Lawman and Geelan met with Mr Seupule-Feau and his wife. At that meeting, Pastor Lawman advised that the complaints revealed an emerging pattern of division and people feeling they had been lied to and misled, in each of the three churches where Mr Seupule-Feau had held ministries.
Pastors Lawman and Geelan claim that at the meeting Mr Seupule-Feau was told the matters were considered sufficiently serious to warrant an independent investigation and, in addition, was offered the option of taking leave from pastoral duties and undertaking further studies.

Investigators appointed

On 12 March 2013 Jared Henley wrote to the NNSW Conference President, Pastor Lawman, advising of his intention to stand down from his position as Head Elder of the Moree church:

In short, this church needs to have Eti removed. He is toxic. I'm sick and tired of all the problems, and will probably not take up the position of elder for another year if Eti is still here in June [2013].

That letter was apparently the trigger for the decision made by Pastor Geelan to commission an investigation into the complaints made about Mr Seupule-Feau. In a letter dated 13 March 2013, Pastor Lawson notified Mr Seupule-Feau that until completion of the investigation he was stood down from his role of pastor on full pay and, in addition, was not to preach, administer or attend the Moree or Narrabri church.

Mr Seupule-Feau responds to the stand down letter

In a letter, in response to the stand-down letter, addressed to the Executive Committee dated 18 March 2013, Mr Seupule-Feau:

Asserted that he had not received any verbal or written communication form the President in the last 18 months concerning his performance or conduct.

Claimed that none of the members of the Ordination Committee chose to question his replies or seek clarification about the mentoring relationship with Pastor Lang.

Claimed that he had never been provided with any feedback about his performance.

Asserted that during a mentoring session in August 2012 when he asked if he was “meeting expectations”, Pastor Lang’s only response was that he should increase the number of weekly Bible studies.

Claimed that Pastor Lang had never expressed any concern about a support person being present during their mentoring sessions.

Denied orchestrating or directing any Fijian member of the congregation to sign the Moree letter.

Disputed that he was unable to deal sensitively with the departure of the Fijians from the Moree church. He wrote as instructed by Pastor Lawman, he informed Pastor Turaga “Moree is too small for two churches”.

Asserted that he had been denied natural justice.

Requested the opportunity to respond to the Investigator’s report before the NNSW Conference made a final decision.

Investigation conducted

On 13 March 2013, Mr Geelan instructed NHN Investigations to conduct an external investigation into the allegations made about Mr Seupule-Feau. Colin Habgood acted as lead investigator.
In the course of the investigation Mr Hapgood interviewed and obtained statements from Pastors Lang and Geelan and Messrs Noordzy, Henley and Hall. In addition, he interviewed Mr Seupule-Feau.
In a statement provided to investigators dated 3 April 2013, Mr Noordzy wrote that he was informed by Dr Oliver shortly after the Moree letter was sent that it was “grossly inaccurate”; in particular the allegation that Pastor Nixon spent only five minutes with Mr Seupule-Feau.
Mr Noordzy claimed that Mr Seupule-Feau dictated the Moree letter and his own role was that of scribe and editor. He wrote that over time his respect for Mr Seupule-Feau waned after witnessing examples of him being manipulative and dishonest. He wrote that his decision to resign as an elder of the Moree church in June 2012 was made as he found he could no longer work with Mr Seupule-Feau, “given the extent of my concerns around his integrity and abuse of trust”.
In a transcript of the interview conducted in May 2013, Mr Seupule-Feau is recorded as saying he had no input into formulating the Moree letter. Specifically, he denied the allegation that he composed, and Mr Noordzy typed the letter.
When invited to comment on the observation made by the Ordination committee that it was difficult to reconcile his “unqualified positive self-assessment” with the poor assessment by church elders in both Inverell and Moree, Mr Seupule-Feau responded that he believed his response to the interview committee was “sincere and genuine”. He added that Pastor Lang had never expressed any concerns to him during their mentoring sessions.
Following the interview, Mr Seupule-Feau provided the investigators with a number of documents, including 21 letters of support provided by members of the Church, including a number holding senior roles within the Church. Some were in the form of character references and made no mention of the stand-down decision. On the other hand, a number referred to and expressed opposition to that decision. For example, Moree church member, Brett Adams wrote that Mr Seupule-Feau had been attacked by “members who have their own agenda and seem intent on destroying Pastor Eti’s good work and ministry”. Another church member, Andrew Bennet, described Mr Seupule-Feau as a “spiritual giant” and attributed his unfair treatment to collusion between Darryl Hall (a member of the Inverell congregation and alleged to be an avid opponent of Mr Seupule-Feau) and Mr Seupule-Feau’s opponents in Moree, the Richards family and their “henchmen” Jared Henley and Robbie Noordzy. Under the heading, “the North West Equals Middle America”, Mr Bennet wrote that Northern NSW is a place where “white supremacy rules”. He stated that the “power base” at Inverell church are all “white Australians” and that some members of the church did not like taking directions from a man with black or darker coloured skin.
In a report of the investigation, dated 12 June 2013, the investigators made three key findings of fact, asserted to be established to the “Briginshaw standard”:

That Mr Seupule-Feau orchestrated and failed to disclose his role in the Moree letter

That during the ordination interview in November 2012, Mr Seupule-Feau claimed that the “mentoring was going well” but failed to mention that he refused to meet with mentor, Pastor Lawson, alone.

That Mr Seupule-Feau informed the Ordination Committee he had a “brilliant working relationship” with local leaders and failed to mention the “significant fractures” within the churches in which he was working.

Mr Seupule-Feau responds to the investigation report

On 23 July 2013 after being given a copy of the investigation report, Mr Seupule-Feau attended the Executive Committee of the NNSW Conference. Pastor Allan Saunders attended the meeting and made submissions on behalf of Mr Seupule-Feau.
In detailed written submissions, provided to the Executive Committee Mr Seupule-Feau responded to the three key findings made by the investigators and asserted that none could be sustained.

Allegation 1: Mr Seupule-Feau orchestrated the Moree letter.

Mr Seupule-Feau pointed to an email from the Church’s Human Resources Manager sent to Pastor Lang in December 2009, advising that if this example of “dishonest manipulation can be proven”, namely, the orchestration of the Moree letter, it would “strengthen the case” against Mr Seupule-Feau.
Mr Seupule-Feau wrote that the allegation that he orchestrated the Moree letter cannot be sustained because there is “clear evidence” that he was at Inverell on the day the letter was written. Inverell is about 150 kilometres from Moree. That evidence included his diary, the monthly conference report and “members of [Mr Seupule-Feau’s] family and two Inverell members who visited his home on September 29”.

Allegation 2: Statement made at the ordination interview that mentoring with Pastor Lang was “going well and comfortably”.

Mr Seupule-Feau wrote that following monthly mentoring sessions with Pastor Lang between March and August 2012, Pastor Lang chose not to attempt to arrange any further mentoring sessions. In his opinion the August 2012 mentoring session, conducted on his return from a PNG evangelistic program, “went well”. Mr Seuple-Feau claimed that at that session when he asked whether he was meeting “mentoring expectations” Pastor Lang responded: “Eti I am happy with everything but if you could increase your Bible studies to 12 per week”.
According to Mr Seupule-Feau, Pastor Lang failed to respond to his written request made in October 2012, two months before his interview with the Ordination Committee, to provide a critique of his ministry.
With respect to his refusal to meet with Pastor Lang without a third party being present, Mr Seupule-Feau wrote that Pastor Lang never raised the issue nor asked to meet alone. He wrote that his past experience, including the allegations made by Pastor Lang in 2009, made him uneasy to meet alone with Pastor Lang. In addition, he asserted that his wife was experiencing Post-traumatic stress disorder as a result of the allegations made by Pastor Lang.

Allegation 3: Statement made to the Ordination Committee that he had a “brilliant working relationship” with local leaders

Mr Seupule-Feau wrote in the three months since he was stood down, the Fijians continue to maintain separate church programs. This, he asserted, demonstrates that their decision to separate from the Moree was unrelated to him.
Mr Seupule-Feau wrote that at Narrabri the “whole church” was supportive of his ministry and 90% of Moree members, including a number of significant leaders, now attend the Narrabri church. He conceded that while two key office bearers at Moree may be unhappy with him — Messrs Henley and Noordzy — the “overwhelming majority” of the Moree congregation respect him.

Church makes offer of study leave

On 5 August 2013, Pastor Lawson wrote to Mr Seupule-Feau and offered him the opportunity to take a period of study leave. The offer included payment of tuition fees, relocation costs to a place of Mr Seupule-Feau's choosing in NSW, Queensland or Victoria and an annual living allowance of $10,000.
In a further letter dated 20 August 2013, Pastor Geelan wrote that if the offer of study leave was accepted the Board of Directors of the NNSW Conference would withdraw all actions against Mr Seupule-Feau. Pastor Geelan advised that if the offer was not accepted, the Board would consider terminating his employment at its meeting on 27 August 2013.

Church terminates Mr Seupule-Feau’s employment

In an undated letter, Pastor Lawson notified Mr Seupule-Feau of the decision made by the Board to terminate his employment. Pastor Lawson gave the following reasons for that decision:

Loss of confidence

Loss of trust

Serious breakdown of the employment relationship

On 13 March 2013 you were advised by Pastor Lawson that:

“[T]here are critical issues of trust and ongoing confidence and sustainable Pastoral/Administration relationship. Such serious concerns go to the core of the continual Pastoral engagement between you and the church.”

A week after being notified of the decision to terminate his employment, Mr Seupule-Feau commenced unfair dismissal proceedings in (then) Fair Work Australia. On the eve of the hearing Mr Seupule-Feau discontinued those proceedings.
Over the following 12 months Mr Seupule-Feau unsuccessfully petitioned the Australian Union Conference and the South Pacific Division, seeking review of the decision to terminate his employment.

Statutory framework: unlawful discrimination

The Act makes it unlawful for an employer to discriminate against a person on the ground of race in the area of employment:

8 Discrimination against applicants and employees
(2) It is unlawful for an employer to discriminate against an employee on the ground of race:
(a) in the terms or conditions of employment which the employer affords the employee,
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee or subjecting the employee to any other detriment.
…

Section 7 of the Act defines discrimination on the grounds of race to mean:

What constitutes discrimination on the ground of race
(1) A person ("the perpetrator") discriminates against another person
("the aggrieved person") on the ground of race if the perpetrator:
(a) on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, 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, or
(b) on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

The Act defines “race” to include colour, nationality, descent and ethnic, ethno-religious or national origin: s 4.
The Act provides that if an act is done for 2 or more reasons, and one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason: s 4A.

What Mr Seupule-Feau must establish

In these proceedings, Mr Seupule-Feau characterised the Complaint as one of “direct discrimination”. In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 (Aldridge), an Appeal Panel of one of NCAT’s predecessors, the NSW Administrative Decision Tribunal (the ADT), formulated a question which it said should be addressed in all cases of direct discrimination. Applied to this case, the questions posed in respect of each of the seven allegations are:

Whether, the alleged conduct, falls within one or more substantive provision of the Act, namely s 8(2) of the Act.

If so, whether the NNSW Conference treated Mr Seupule-Feau less favourably in the same circumstances or circumstances that were not materially different than it treated, or would have treated a person, not of Mr Seupule-Feau’s race (less favourable treatment).

If so, whether one of the reasons for any less favourable treatment was Mr Seupule-Feau’s race, a characteristic that generally appertains to, or is generally imputed to persons of his race (causation).

Mr Seupule-Feau bears the onus of proof. The seven allegations do not stand and fall together.
The approach advocated by the Appeal Panel in Aldridge of separately and sequentially considering the issues of less favourable treatment and causation, presents difficulties where an actual comparator is not identified and the elements of less favourable treatment and causation are necessarily conflated. Therefore, where reliance is placed upon a hypothetical comparator, it is first necessary to ask what was the ground or grounds of the impugned conduct. It is only when the answer to that question is known that it is possible to decide whether a hypothetical person without the applicant's protected attribute would have been treated less favourably. See for example, Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63] - [65], Martin v McKensey (No. 2) [2003] NSWADT 126 at [46]; McEvoy v Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273 at [68].
Mr Seupule-Feau nominated an actual comparator in only one of the seven allegations. Therefore, in considering the balance of the allegations we must first ask whether Mr Seupule-Feau’s race was the ground or grounds of the impugned conduct.

Consideration of evidence raised in written submissions

Both parties made oral submissions at the close of the hearing. Because of the length, detail and references to numerous documents contained in the submissions made on behalf of Mr Seupule-Feau, we asked Pastor Saunders, who acted for Mr Seupule-Feau, to provide a copy of his reading notes. The notes, which were provided a week or so after the hearing, contained new evidence. In a letter received by the Tribunal on 2 August 2017, the legal representatives for the NNSW Conference objected to that evidence.
No doubt the new evidence was included because of a misunderstanding about the nature of the direction made by the Tribunal. We intend no disrespect to Pastor Saunders, but in making our decision we have disregarded the new evidence contained in his notes. The authorities have consistently identified the harm in filing submissions without, or outside, leave: see for example, NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 (at p 192); and Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 (at pp 513, 514); Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 (at p 330).

Allegation 1: Mr Seupule-Feau is directed to ask his house guests to leave

Mr Seupule-Feau alleges that on 11 February 2005, Pastor Lang instructed him that the three Samoans men then staying with him as house guests must leave within a few days. Pastor Lang denies this allegation.
Before considering whether the alleged conduct falls within s 8(2) of the Act, we must address the threshold issue of whether the alleged conduct occurred.
At the time of the alleged incident, Mr Seupule-Feau was working as an intern with the Central Coast Community Church. He and his family were living in private rental accommodation in Cooranbong on the Central Coast of NSW. Pastor Lang and his wife lived a few blocks away.
Mr Seupule-Feau alleges that on the morning of 11 February 2005, his wife phoned him to advise that Pastor Lang and his wife arrived unannounced and Pastor Lang had asked to speak with him. He claims when he returned home Pastor Lang was speaking to his wife in the door way to their home and Pastor Lang’s wife was sitting in the Lang’s car, which was parked in the driveway.
In a statement dated 30 January 2017, Mr Seupule-Feau wrote that on his arrival Pastor Lang said “[the Samoan men] should not be staying at your home and they should find somewhere else to stay”. Mr Seupule-Feau claims he explained that it was part of his “cultural obligation to provide assistance for people in need”. On his account, on leaving Pastor Lang said “Eti, these people need to be out of your house as soon as possible and I will catch up with you later.”
Mr Seupule-Feau claims that later that evening at the local church convention centre, Pastor Lang approached him and asked whether his guests had left and the following exchange occurred:

ES: My wife and I have heard your instruction and we would try and pass on your instruction to these men in an appropriate way while respecting our Samoan cultural norm and responsibility.
JL: Eti, those people should find somewhere else to stay.

Mr Seupule-Feau claims that at the time he wanted to object to Pastor Lang’s instruction but feared if he did so, his employment might be jeopardised. For that reason, he felt he had no option but to adhere to the instruction.
Mr Seupule-Feau agreed that before lodging the Complaint with the Anti-Discrimination Board in August 2014, he had not raised the incident with anyone except his wife. He claimed that he and his wife discussed the incident on many occasions.
In a statement dated 2 January 2017, Mrs Feau corroborated her husband’s account of the alleged comment made by Pastor Lang.
Pastor Lang gave a different account. He claims that on 11 February 2005 while walking to the shops, he and his wife saw Mr Seupule-Feau in the driveway and stopped to chat. He claims that during that conversation, Mr Seupule-Feau complained about his Samoan house guests. According to Pastor Lang, it appeared to him underlying the complaint was Mr Seupule-Feau’s concern of having to provide for another three people on a modest intern’s wage, in circumstances where he was already supporting a family of six. He claimed that after Mr Seupule-Feau had raised the issue a number of times he said words to the effect: “If they are a problem you should ask them to leave.” He claimed that he had simply given Mr Seupule-Feau a “sympathetic ear” as he would anyone in a similar position.
Pastor Lang denied the allegation that he had used his “position, status and authority” to impose his “personal and perceived Australian values and cultural practices”. He denied threatening or seeking to intimidate Mr Seupule-Feau, pointing out that he had recruited Mr Seupule-Feau to the position only a month earlier.
In a statement dated 10 March 2017, one of the three house guests staying with Mr Seupule-Feau in February 2005, Pastor Ataoloma Ulia, wrote that on his arrival from New Zealand, a relative had arranged for him and his brother and cousin to stay with Mr Seupule-Feau until they found somewhere to live. He wrote that throughout the three or four weeks they stayed with the Seupule-Feau family, Mr Seupule-Feau was extremely gracious and welcoming. He wrote that neither Mr Seupule-Feau nor anyone else asked him or his relatives to leave. In addition, he stated that neither Mr Seupule-Feau nor his wife mentioned the alleged conversation with Pastor Lang. Pastor Ulia was not required for cross-examination.
In cross-examination, Mr Seupule-Feau said he did not tell his guests to abruptly leave but rather claimed he raised the issue in a “more appropriate Samoan way”.

Consideration

It is common ground that on the morning of 11 February 2005 Pastor Lang and Mr Seupule-Feau had a discussion about the three guests staying with the Seupule-Feau family. The only material fact in dispute is whether Pastor Lang directed Mr Seupule-Feau to request his guests to leave or merely suggested he do so. The characterisation of the comment is relevant because if, as Pastor Lang contends, he merely made a suggestion to Mr Seupule-Feau, it could not reasonably be argued that that conduct fell within a substantive provision of the Act, namely a term or condition of employment, or subjecting Mr Seupule-Feau to a detriment: ss 8(2)(a), 8(2)(c).
The NNSW Conference submits that little weight can be given to the evidence given by Mrs Seupule-Feau, given the apparent contradiction between the claim she made in these proceedings of being unable to understand English and requiring an interpreter, and her claim of having a clear recollection of a conversation in the English language which had taken place 12 years earlier. We disagree. This apparent contradiction does not necessarily establish that her testimony is unreliable. In our experience, many people whose first language is not English commonly request an interpreter, even where they have a level of English proficiency, because of their misgivings about their ability to communicate, in the stressful circumstances of cross-examination.
Neither the Seupule-Feaus, nor Pastor Lang made a contemporary note of the disputed conversation or discussed it with a third party. For over eight years it went unreported. In those circumstances, we think it unlikely that either the Seupule-Feaus or Pastor Lang have as accurate a recollection of the disputed conversation as each now claim.
Any number of possible scenarios may account for the conflicting accounts about the disputed conversation. It may that one of more of the protagonists was being untruthful or was mistaken in their recollection. It is also possible that Mr Seupule-Feau misinterpreted the comment made by Pastor Lang. Whatever the answer, the absence of any independent evidence together with Pastor Ulia’s account which contradicts Mr Seupule-Feau’s claim that he adhered to the “direction”, leads us to conclude that Mr Seupule-Feau failed to discharge the evidentiary onus of establishing that he was directed to ask his guests to leave.
This allegation is not established.

Allegation 2: Failure by NNSW Conference to investigate race-based comments

Mr Seupule-Feau claims that by failing to investigate the race-based comments recorded in the Nixon report, the NNSW Conference subjected him to “a detriment” within the meaning of s 8(2)(c) of the Act. Section 8(2)(c) of the Act makes it unlawful for an employer to discriminate against an employee on the ground of race by “dismissing the employee or subjecting the employee to any other detriment”.
The NNSW Conference contends that as Mr Seupule-Feau did not request it to investigate those comments, it was not required to do so, and therefore it could not be said that he was subjected to a detriment. In addition, the NNSW Conference asserts that the Act covers “acts” and “conduct” not inaction or omission. No authority was cited for that proposition.
We reject the proposition that s 8(2)(c) of the Act should be given the narrow meaning advanced by the NNSW Conference. Because the Act is remedial in nature, it must be construed broadly to give effect to its objects and purposes: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359; and s 33 of the Interpretation Act 1987 (NSW). The long title of the Act is “to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons.”
While we do not accept the proposition advanced by the NNSW Conference that s 8(2)(c) does not extend to acts of omission, this does not resolve the issue of whether in the circumstances of this case, by failing to conduct an investigation, the NNSW Conference subjected Mr Seupule-Feau to a detriment. Detriment has been held to mean “loss, damage or injury” that is “real and not trivial”. (See, the discussion of the meaning of the word “detriment”, in the context of s 50 of the Act, which prohibits victimisation: Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808; Sivananthan v Commissioner of Police [2001] NSWADT 44; at [40]; and Burns v Sunol (No 2) [2017] NSWCATAD 236 at [75]. That interpretation has consistently been applied in relation to the equivalent provisions of s 8(2)(c) of the Act, see for example, Bonella v Wollongong City Council [2001] NSWADT 194 at [50]. )
The Nixon report revealed that the Inverell church was deeply divided over the issue of Mr Seupule-Feau’s leadership. The report revealed that the 23 members of the congregation interviewed by Pastor Nixon, made both favourable and unfavourable comments about Mr Seupule-Feau. As was later to emerge, some members of the congregation perceived Mr Seupule-Feau’s race to be a factor in the division. See for example, the comments made by Inverell congregation member, Andrews Bennets, in a letter of support for Mr Seupule-Feau written in 2012, in which he asserted that race was a reason for the dissatisfaction with Mr Seupule-Feau expressed by the “power base” of the Inverell church.
The evidence also reveals that in 2009, Mr Seupule-Feau himself believed that his race to be one of the reasons for the division within the Inverell congregation and raised the issue with Pastor Lang. See for example, his letter to Pastor Lang of 30 November 2009.
The submission made for Mr Seupule-Feau that the Nixon report together with the Moree and Inverell letters, “document the swelling overtures of racial discrimination and abuse towards Mr Seupule-Feau”, overstates the evidence. As the Nixon report reveals, only two of the reported adverse comments about Mr Seupule-Feau mention race. The comments listed in the report that were critical of Mr Seupule-Feau were broad ranging and included his communication style: “his anger scares me”, “a very rude man”; his approach to leadership: “not organised”, “wastes time at meetings”, “autocratic”, “not a team player”, “a tendency to manipulate”; his approach to his pastoral duties: irregular pastoral visits, not preaching every Sabbath, delivering repetitive unstructured sermons. In addition, the report reveals that a number of people had “serious concerns” about the fact that at the time Mrs Seupule-Feau was living away from her husband in Cooranbong.
Similarly, while the issue of race was raised in the Moree and Inverell letters, alleging that Inverell congregation member, Darryl Hall, held negative views about the alleged Pacific Island practice of the pastor “call[ing] the shots”, it was but one of a number of issues raised in those letters about the alleged poor treatment meted to Mr Seupule-Feau, by the NNSW Conference and members of the Inverell congregation.
What would have revealed had an investigation been conducted, is a matter of speculation. While not a forgone conclusion, it is possible that an investigation would have revealed that race was a factor, consciously or otherwise, in the reason some members of the Inverell congregation were dissatisfied with Mr Seupule-Feau’s leadership. Neither party addressed whether in these circumstances, the failure to investigate amounts to a “detriment”. For current purposes, we will assume but not decide that by failing to conduct an investigation into the race-based comments recorded in the Nixon report, the NNSW Conference subjected Mr Seupule-Feau to a detriment.

Was Mr Seupule-Feau’s race one of the reasons for the failure to investigate?

As there is no evidence of an actual comparator, we must first consider whether one of the reasons Pastor Lang failed to investigate the race-based comments recorded in the Nixon report, was Mr Seupule-Feau’s race. The question raised is whether Mr Seupule-Feau’s race was one of the "real", "genuine" or "true" reasons for the failure to investigate: Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis) at [13], [14], [166]. To establish causation, race need not be the sole or even the dominant or substantial reason for the impugned conduct.
As conceded for Mr Seupule-Feau, there is no direct evidence that race was a reason for Pastor Lang’s failure to investigate the race-based comments recorded by Pastor Nixon. Therefore, it is necessary to decide whether having regard to the totality of the evidence that inference can be drawn from the primary facts. In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70], referring to Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, the Tribunal identified the principles relevant to that task:

a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts;

an inference must be reasonably drawn on the basis of the primary facts;

an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;

a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";

the inference must be a logical one, and not supposition;

an inference cannot be made where more probable and innocent explanations are available on the evidence.

Until his retirement from his role of NNSW Conference President in late 2011, Pastor Lang was the key decision-maker in relation to Mr Seupule-Feau’s employment. It is apparent that the Moree and Inverell letters soured Pastor Lang’s view of Mr Seupule-Feau. He concluded that Mr Seupule-Feau played some role in their creation and was the source of the “misinformation”. He concluded that Mr Seupule-Feau had been duplicitous and disloyal to both himself and the NNSW Conference.
While he may have been mistaken, Pastor Lang’s belief that Mr Seupule-Feau was the source of the alleged the “misinformation” in the Moree letter was not without basis. For example, the letter contained details about the conduct of the Nixon investigation and the subsequent interaction between the NNSW Conference and Mr Seupule-Feau, critically the issue of the first warning letter. Given that this information was apparently known to only a small group of people and it was used to bolster the argument that Mr Seupule-Feau had been unfairly treated, Pastor Lang’s deduction that Mr Seupule-Feau was the most likely source, is unremarkable.
On the available evidence, we could not be satisfied that race was a factor in the conclusion reached by Pastor Lang that Mr Seupule-Feau had been duplicitous and disloyal. However, it does not follow that it played no role in his failure to investigation the race-based comments contained in the Nixon report. We believe the following factors to be relevant to that assessment.
First, as discussed above a fair reading of his report does not suggest that Pastor Nixon identified race to be a central or even significant issue in the developing schism within the Inverell Church.

Second, it is apparent from his letter to Mr Seupule-Feau of 1 September 2009, that Pastor Lang held the view that by raising the race issue, Mr Seupule-Feau was attempting to deflect responsibility for and excuse his own shortcomings in the emerging problems within the Inverell Church. His rejection of Mr Seupule-Feau’s contention that his race played a role in the division within the Church must be seen in that light.
Third, there is no evidence to suggest that in his role as President of the NNSW Conference, Pastor Lang had a tendency to be especially pro-active when he learnt of criticisms made by congregation members against those in leadership positions within the Church.
It may have been prudent for Pastor Lang to have taken steps to enquire into the race-based comments recorded in the Nixon report. It may also be that consciously or otherwise that race was a contributing factor in Pastor Lang holding a poor opinion of Mr Seupule-Feau and his failure to investigate the comments in the Nixon report. However, the available evidence does not support a finding that Mr Seupule-Feau’s race was one of the reasons he failed to investigate the comments.
It follows that Allegation 2 is not substantiated.

Allegation 4: the decision to issue the stand down letter

For convenience, we deal with Allegations 3 and 4 in reverse order.
By being stood down from employment, Mr Seupule-Feau was subjected to a to a detriment within the meaning of s 8(2)(c) of the Act.

Less favourable treatment

Mr Seupule-Feau contends that he was treated more harshly than Caucasian pastors. In support he points to the treatment afforded to the two Caucasian pastors listed below. As requested by the parties, we will not refer to the pastors by name.

Pastor 1 was alleged to have been involved in sexual misconduct. In 2011, the Church advised Pastor 1 of its intention to conduct an investigation into that allegation and advised that he would be considered innocent unless proven guilty and the Church would reimburse his “reasonable legal costs”. At some point after the commencement of the investigation, the Church stood down Pastor 1 from his role.

Pastor 2 had a history of alcohol abuse. He was relieved from his duties but not stood down. After completing 12 months’ rehabilitation, which was apparently funded by the Church, he resumed full-time pastoral duties.

Before considering these examples, as the High Court instructed in Purvis, we must first identify the objective features or circumstances surrounding the decision to stand down Mr Seupule-Feau. They include:

The fact that the Fijian members of the Moree congregation had decided to worship separately from the main congregation.

The 2012 reports prepared by Pastors Lang and Smith, which recorded that some members of the Moree congregation, including some of its Fijian members, had expressed dissatisfaction with Mr Seupule-Feau’s leadership.

The August 2012 disclosure made by Mr Noordzy to Pastor Lang that Mr Seupule-Feau had dictated the contents of the Moree letter and he had acted as scribe.

The announcement by the Head Elder of the Moree Church, Mr Henley, that he was not prepared to continue as an elder if Mr Seupule-Feau continued in the role as pastor.

The absence of any adverse report concerning his performance or conduct being given to Mr Seupule-Feau in the intervening period between the issue of the second warning letter and the issue of the stand-down notice, November 2009 to March 2013.

The favourable views expressed by some members of the Moree congregation about Mr Seupule-Feau’s leadership.

The NNSW Conference submits that neither of the two nominated comparators support the proposition that Mr Seupule-Feau was afforded less favourable treatment, contending that the surrounding circumstances in each case was materially different to those surrounding the treatment afforded to Mr Seupule-Feau.
There is scant evidence about the circumstances surrounding the treatment afforded to the two nominated comparators making it difficult to determine whether the circumstances surrounding their treatment were the same or similar, to the circumstances surrounding the treatment afforded to Mr Seupule-Feau. Nonetheless, the fact that neither was stood down, at least initially, in the face of apparently serious allegations, supports Mr Seupule-Feau’s contention that his treatment by the NNSW Conference was unnecessarily harsh.

Was race one of the reasons for the stand down decision?

The stated reason given to Mr Seupule-Feau in the notice dated 13 March 2013 for the stand down decision, was his alleged inability to “achieve and sustain the standards and levels of performance required by the church”, namely trust and building and sustaining pastoral relationships. Signed by Pastor Lawman the letter was drafted by Pastor Geelan, then Secretary of the NNSW Conference.
With respect to the issue of trust, the notice referred to the statements made by Mr Seupule-Feau at the Ordination interview on 8 November 2012, that “mentoring was going well” and he had a “brilliant working relationship” with local leaders of his Church. The letter asserted that Mr Seupule-Feau had failed to disclose to the Committee that he had refused to meet with his mentor (Pastor Lang) alone and that there were “significant fractures” within each Church under his control.
With respect to building and sustaining pastoral relationships, Pastor Lawman wrote that Mr Seupule-Feau’s relationship with both his mentor and local church leadership was now dysfunctional as evidenced by Mr Seupule-Feau’s:

Refusal to meet with Pastor Lang without another person being present.

His “apparent orchestration” of the Moree letter.

(At times) negative and hostile dealings with colleagues.

“Apparent manipulation of the local congregation to support your alleged personal grievance with the Church administration”.

In conclusion, Pastor Lawman wrote that while some positive reports about aspects of Mr Seupule-Feau’s ministry, they are “overwhelmed” by recurring issues of trust, confidence and ongoing ability to sustain pastoral/administrative relationships.
In detailed submissions, Mr Seupule-Feau referred to what he believed to be numerous shortcomings in the investigation conducted by NHN Investigations and challenged the findings contained in the report of that investigation. These submissions are misconceived. The quality or otherwise of the investigation is irrelevant to the question of whether race played a role in the stand down decision. Relevant to that question is the history to the making of that decision, the objective seriousness of the alleged conduct stated to be the grounds for the decision, and the information available to Pastors Geelan and Lawman at the time the decision was made. As noted, the decision was made the day after the Moree Head Elder announced he was no longer prepared to continue in his role if Mr Seupule-Feau continued as pastor. Three months earlier, the Ordination Committee had concluded that Mr Seupule-Feau had not been candid in his interview for ordination. Six months earlier, the Fijian members of the Moree congregation formed a breakaway group. Two and a half years earlier, the Nixon report revealed fractures and discontent within the Inverell congregation.
As Mr Seupule-Feau points out, one of the stated grounds for the stand-down decision was his alleged role in relation to the Moree letter. While expressed in the stand-down letter as being a tentative view, we think it likely that when the letter was written Pastors Geelan and Lawman probably shared Pastor Lang’s view that Mr Seupule-Feau had some involvement in the letter. Mr Seupule-Feau contends that this conclusion was against the weight of evidence. Even if accepted, this does not establish that race played a role in in the pre-emptive conclusion reached by Pastors Geelan and Lawman. But in any event when the stand-down decision was made, the information available to the leaders of the Conference, which included the disclosure made by Mr Noordzy, provided some basis for the belief that Mr Seupule-Feau played a role in creating the letter.
As the evidence concerning Pastor 1 and Pastor 2 reveals, a decision to investigate the conduct of an employee did not necessarily trigger a stand down decision, even where the employee was the subject of allegations of a serious nature. Other more benign options including taking no action until the investigation was finalised, were available to and were exercised by the Conference.
As there is no direct evidence that race was a factor in the stand-down decision we must consider whether that inference can be drawn from the available evidence. Pastor Geelan’s claim that given the seriousness of these matters it was considered necessary that Mr Seupule-Feau be stood aside until the investigation was completed, is plausible. By this time, a breakaway group had formed in Moree and the Head of its Council of Elders had announced his intention to resign. On their face, the stated grounds for deciding to stand down Mr Seupule-Feau, were objectively serious. While it is possible that race may have played some role in the decision, the available evidence does not support that inference being drawn.
It follows that Allegation 4 is not established.

Allegation 3: revision to the stand down letter

We understand Mr Seupule-Feau to contend that he was subjected to a detriment by the actions of Pastor Geelan in revising the stand-down letter dated 13 March 2013. The letter went through a number of drafts. According to Pastor Geelan, the letter was drafted in consultation with Tony Brown of AWB Workplace Solutions, an external organisation used by the NNSW Conference in workplace matters.
Included in the material provided to the Tribunal was the final version of the stand-down letter and two drafts of that letter. There are a number of differences between these versions, some of form, some of substance. Neither of the draft versions of the letter contain any mention of an investigation. Both state “we have reached the stage where we can no longer engage you as a pastor” and invite Mr Seupule-Feau to comment on whether his engagement as a pastor should continue. In contrast, the final version of the letter informs Mr Seupule-Feau that a decision will be made about his employment after an investigation has been conducted. A further difference, is the inclusion of the following statement in the final version of the letter: “We have also been advised of an apparent problem you have with the Aboriginal community”.
Apart from pointing to the differences between the draft and final versions of the letter, Mr Seupule-Feau has failed to articulate how the actions of the NNSW Conference, in revising the letter, subjected him to loss or damage. We are not persuaded it did. Nonetheless, we will address the contention that race was a reason for the revisions being made.
The fact that Pastor Geelan sought advice about the contents of the stand down letter and that it went through a number of drafts, is unremarkable. The letter was significant and potentially exposed the Conference to an unfair dismissal claim. It seems likely that this perceived risk lay behind the decision to abandon the original plan reflected in the early drafts, of simply inviting Mr Seupule-Feau to comment on whether his employment should cease, without an investigation.
Mr Seupule-Feau claimed that the inclusion of the statement about his “apparent problem” with the Aboriginal community was a deliberate slur. He claims he had an excellent relationship with the Aboriginal community, as evidenced by the letters provided to the Tribunal by some of its members. Pastor Geelan explained that the reference to Mr Seupule-Feau’s apparent problem with the Aboriginal community was included in the final version of the stand down letter because the issue had been raised by Mr Henley. He points out that the statement is a verbatim extract taken from the letter sent by Mr Henley to Pastor Lawman dated 12 March 2013.
It seems likely that the reason Pastor Geelan included the offending statement was to strengthen the grounds of the stand down decision. While this suggests that by that time, the leaders of the Conference had concluded that Mr Seupule-Feau must go, of itself it does not establish that his race was one of the reasons they reached that view, or that race was one of the reasons the offending statement was included in the final version of the stand down letter. Nor do the available facts taken as a whole support that inference being drawn.
Allegation 3 is not substantiated.

Allegation 5: Mr Seupule-Feau is required to live in Moree

In the “second and final warning letter” dated 16 November 2009, Pastor Lang informed Mr Seupule-Feau that a decision had been taken that in 2010 he was to hold appointments as pastor of the Moree and Narrabri Churches and, in addition, would be required to live in Moree.
Mr Seupule-Feau submits that it was not a condition of his employment that he must live in a particular location. In addition, Mr Seupule-Feau contends that the letter was “invalid” because it was apparently not placed on his employment file and bore only Pastor Lang’s signature, when Church policy required that he countersign the letter and a copy placed on file. In addition, he points out that the “official letter” confirming his appointment as pastor of Moree and Narrabri signed by the NNSW Conference Secretary, Robert Dale, made no mention of the requirement that he live in Moree.

The invalidity point

A failure by an employer to adhere to a requirement of its employment policy may be caught by a substantive provision of the Act. However, of itself, it does not evince less favourable treatment or causation. While the failure to countersign the second warning letter and place a copy on Mr Seupule-Feau’s file may give rise to a remedy or demonstrate poor administration, without evidence of less favourable treatment and causation they do not amount to direct discrimination.

The residential requirement

When he decided to require Mr Seupule-Feau to live in Moree, Pastor Lang was aware that Mr Seupule-Feau had requested a transfer to the Central Coast or Coorabong, where his wife and some of his children were then living. The stated reason for refusing to accede to that request was the lack of vacancies in that area for the foreseeable future.
According to Pastor Lang, it is usual for pastors to live in the area where they are appointed to minister. He stated that while the Church attempts to accommodate personal preferences this is not always possible and points in support to the Church Manual. He stated that Inverell is a one and half drive away from Moree and a further hour from Narrabri. In his opinion, had he remained living in Inverell, it would have been impossible for Mr Seupule-Feau to properly perform his pastoral role in Moree and Narrabri.
In cross examination, Mr Seupule-Feau conceded that pastors generally reside in the area where their church is located. He asserts that the reason Pastor Lang directed that he live in Moree was to ensure he had “maximum exposure” to the Moree congregation and was thus more likely to “rub someone up the wrong way”.
Pastor Lang’s claim that when the decision was made requiring Mr Seupule-Feau to live in Moree, there were no vacancies on the NSW Central Coast or Cooranbong is uncontradicted.
As discussed above, the evidence revealed that by the time the second warning letter was written, Pastor Lang held a poor opinion of Mr Seupule-Feau and had concerns about his honesty. We accept Mr Seupule-Feau’s hypothesis that when Pastor Lang wrote the second warning letter, he probably would have moved to terminate his employment had there been firm evidence to support his suspicion about his role in the Moree letter. That finding is consistent with the advice given by the Church’s Human Relations Manager to Pastor Lang in an email dated 8 December 2009.
As conceded by Mr Seupule-Feau, apart from the general contention that Pastor Lang held him in low regard because of his race, there is no evidence to support the proposition that race played a role in Pastor Lang’s decision to require that he live in Moree. While a possibility, the available evidence does not support that inference being drawn.
Allegation 5 is not substantiated.

Allegation 6: termination of Mr Seupule-Feau’s employment

There is significant overlap between this allegation and Allegation 3. The parameters of this allegation appear to be the decision to terminate Mr Seupule-Feau’s employment and the steps taken by the NNSW Conference, immediately preceding that decision, specifically, the issuing of the stand down notice and the commissioning of an investigation. Mr Seupule-Feau asserts that there were multiple shortcomings in the procedures and processes followed by the NNSW Conference which led to the ultimate decision to terminate his employment.
We examine below the submissions made by Mr Seupule-Feau about the processes which led to the termination of his employment and make some general observations. We will then return to consider whether his race played a role that decision.

The revisions to the stand down letter

We dealt above with the submissions made by Mr Seupule-Feau about the revisions made to this letter.

A flawed investigation

Mr Seupule-Feau contends that the investigators were biased, failed to conduct a comprehensive investigation and made findings based on “no evidence”. He attaches particular significance to the manner in which the investigators dealt with the allegation made by Mr Noordzy about his role in the MoreeMoree letter.
As noted above, in October 2012 Mr Noordzy disclosed to Pastor Lang that Mr Seupule-Feau dictated the Moree letter and he had acted as scribe. Shortly before making that disclosure Mr Noordzy started to distance himself from the Church. In mid-2012, Mr Noordzy resigned as Church Elder. A few months later, his in-laws and children joined the breakaway Fijian group in Moree. In early 2013, Mr Noordzy disclosed to Mr Henley that he would not attend any church services where the sermon was delivered by Mr Seupule-Feau.
In a statement given to the investigators dated 3 April 2013, Mr Noordzy wrote that he acted as typist and Mr Seupule-Feau “dictated the basics of the [Moree] letter”. He wrote that initially he had been supportive but his respect for Mr Seupule-Feau declined gradually over time. He claimed that he observed Mr Seupule-Feau “cry a lot” at Board meetings, which he believed to be a device to get his own way. He alleged that after disclosing to Mr Seupule-Feau problems within his marriage, Mr Seupule-Feau misrepresented their conversation to his in-laws. In addition, he alleged that Mr Seupule-Feau had lied to his wife, sister in law and mother.
Mr Noordzy wrote that a “final straw” in his decision to inform Pastor Lang about his concerns about Mr Seupule-Feau was the “Fijian split” together with the conclusion reached by his father-in-law, Pastor Turaga that Mr Seupule-Feau had no regard for the leaders of the Conference and had lied about the Moree letter. A further reason he gave for deciding to inform Pastor Lang, was the decision made by the Adventist Aviation Association to discontinue their monthly visits to Moree as a result of Mr Seupule-Feau’s decision to impose “irrational and unrealistic” requirements on the Association.
In a record of an interview conducted on 8 May 2013, Mr Seupule-Feau claimed that while the content of the Moree letter was correct he was not involved in it and had “no idea” who wrote it. In a supplementary statement sent to the investigator after the interview, Mr Seupule-Feau stated that he believed that the allegations made by Mr Noordzy were prompted by the decision taken by the Board of the Moree church to “disfellowship” Mr Noordzy’s wife.

Mr Seupule-Feau submits that his diary and other contemporaneous records “put beyond doubt” that he was not in Moree on 26 September 2009, the day the letter was written. He asserts that Mr Noordzy’s claim to have acted as scribe is inconsistent with his use of the personal pronoun in the statement he provided to investigators: “I wrote a letter to Dr Oliver on 26 September 2009” (emphasis added). Mr Seupule-Feau wrote that he will “maintain to his dying breath” that he had no connection with the Moree and Inverell letters. Further, he asserts there is not “one piece of supporting evidence” to support the claim that he was connected with the Moree letter. He submits that the failure of the investigators to inquire about his whereabouts on 26 September 2009, demonstrates their lack of objectivity.

Consideration

As contended by Mr Seupule-Feau and conceded by the NNSW Conference, there were significant shortcomings in the investigation conducted by NHN by NHN Investigations. The primary shortcoming in our view, was the decision to limit the number of people interviewed — Pastors Lang and Geelan and Messrs Hall, Norrodzy, Henley. In circumstances where it was widely acknowledged that opinion about Mr Seupule-Feau was divided, the decision to only canvass the views of this small group, none who were considered ” supporters” of Mr Seupule-Feau, especially in respect to the allegation that Mr Seupule-Feau had lost the support of the congregation, was a serious error of judgement.
The failure by the investigators to attempt to obtain corroborative evidence about the competing claims made by Messrs Noordzy and Seupule-Feau about the authorship of the Moree letter, provides a number example of a shortcoming in the investigation.
However, the submission made by Mr Seupule-Feau that there was “no evidence” to support the key findings made by the investigators must be rejected. With respect to the Moree letter, the investigators were given conflicting accounts by the two protagonists. It was a case of word against word. Neither account was supported. While in these proceedings Mr Seupule-Feau put considerable weight on what he contended was the “overwhelming evidence” that he was not present in Moree on the day the disputed letter was allegedly written, he made no mention of that evidence during the interview, or in the supplementary statement he provided to the investigators. As the investigators acknowledged, Mr Noordzy’s failure to admit to his role until two years after the letter was sent raises issues about the reliability of his claims. Nonetheless the finding made was one open on the available evidence.

The decision-making process employed by the Board

At a meeting on 27 August 2013, the Board of Directors of the NNSW Conference resolved to terminate Mr Seupule-Feau’s employment. Mr Seupule-Feau contends that the process followed by the Board was flawed for a number of reasons. First, he asserts he was denied procedural fairness because Pastors Geelan and Lawman, by initiating and overseeing the investigation and participating in the decision to terminate his employment, acted as both prosecutor and decision-maker, rendering the Board a “kangaroo court”. Second, he contends the decision was invalid because the Handbook for Australian Pastors stipulates that a decision to terminate the employment of a pastor can only be made by the Review Committee not the Board of Directors. Third, he asserts he received an email notifying him of his termination three hours before the commencement of the meeting of the Board. (This contention is disputed by Pastor Geelan who states that it was sent immediately after the conclusion of the Board meeting. Each produced to the Tribunal emails bearing the different times they claim the email was sent.) Fourth, the Board was provided only with a summary of the Investigation report and, not the 21 letters of support provided to the investigator by Mr Seupule-Feau. Fifth, the reference in the stand-down letter to Mr Seupule-Feau “having some sort of problem with the Aboriginal community” was a slur used by the Church administration to cast doubt on his integrity.

Conclusion

Mr Seupule-Feau concedes that there is no direct evidence that race was a factor to terminate his employment. He contends that given the shortcomings in the investigation and the decision-making process, the only logical explanation is that his race must have played a factor.
By the time the stand-down decision had been taken, Pastors Geelan and Lawman had serious misgivings about Mr Seupule-Feau’s suitability for the role of pastor. Each said as much in their respective statements filed in the unfair dismissal proceedings commenced by Mr Seupule-Feau. It is hardly surprising that Pastors Geelan and Lawman considered it to be a matter of concern that the Head Elder and Treasurer of Moree had threated to resign if Mr Seupule-Feau continued as pastor. As they saw it, a pattern of conduct had emerged where Mr Seupule-Feau fell out with significant members of his congregation and this was likely to continue.
We accept that the investigation was flawed in part. In addition, we accept that the failure to provide the ultimate decision-maker, namely the Board with a full copy of the investigation report, relevantly the letters of support, probably constituted a denial of procedural fairness. However, the issue raised is whether race played a factor in the ultimate decision to terminate Mr Seupule-Feau’s employment and/or the procedural shortcomings in the processes leading up to his dismissal.
Mr Seupule-Feau feels aggrieved by the decision to terminate his employment. He apparently believes a different result might have reached had a balanced and comprehensive investigation been conducted and the Board been appraised of all of the information favourable to his case. While arguably Mr Seupule-Feau may have a legitimate grievance about the process surrounding the decision to terminate his employment, nonetheless, the available evidence does not support his subjective view that race played a role in the decision to terminate his employment and/or the decisions and steps which led to that decision.
This allegation is not established.

Seventh allegation: withholding of evidence

Mr Seupule-Feau claims that at the meeting of the Board of Directors on 23 July 2013, Pastor Geelan the then Acting Chairman of the Board said, “I will neither confirm nor deny that the Moree allegations was received in writing or by hearsay”. According to Mr Seupule-Feau, this was a “deliberate concealing of evidence that denied him procedural fairness and is a breach of s 8(2)(c)”. Mr Seupule-Feau identified the concealed evidence as the statement included in the final version of the stand-down letter about the alleged concerns expressed about him by members of the Aboriginal community. As noted, that statement was included in the letter sent by Mr Henley on 12 March 2013 to leaders of the Conference. It was reproduced but not attributed to Mr Henley in the final version of the stand-down letter but not the drafts of that letter.
Pastor Geelan states he has no recollection of making that statement.
Even if accepted that Pastor Geelan made the disputed statement, the factual assumption underlying this allegation, namely that Mr Seupule-Feau was not notified of the allegation concerning his relationship with the Aboriginal community, is not established. This statement was included in the stand down letter he was given In addition, he was given a full copy of the investigation report which contained a copy of the email sent by Mr Henley on 12 March 2013 (see attachment 30 to the report).
This allegation is not established.

Conclusion

For the reasons given none of the seven allegations are established. Therefore, the Complaint must be dismissed under s 108(1)(a) of the Act.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 30 November 2017

Medium Neutral Citation:	Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2017] NSWCATAD 355
Hearing dates:	13-15 June 2017, 25 July 2017 and 3 August 2017 (final submissions)
Date of orders:	30 November 2017
Decision date:	30 November 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member F Given, General Member
Decision:	The Complaint is dismissed under s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW).
Catchwords:	HUMAN RIGHTS - discrimination - less favourable treatment - assessment of less favourable treatment where no actual comparator HUMAN RIGHTS - discrimination - causation - meaning of the expression “on the ground of” in s 7(1) of the Anti-Discrimination Act 1977 (NSW) STATUTORY INTERPRETATION - whether a failure to act can constitute a “detriment” in s 8(2)(c) of the Anti-Discrimination Act 1977 (NSW)
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Interpretation Act 1987 (NSW)
Cases Cited:	Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 Bonella v Wollongong City Council [2001] NSWADT 194 Burns v Sunol (No 2) [2017] NSWCATAD 236 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Martin v McKensey (No. 2) [2003] NSWADT 126 McEvoy v Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273 NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Seupule-Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2016] NSWCATAD37 Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Sivananthan v Commissioner of Police [2001] NSWADT 44 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Interpretation Act 1987 (NSW)
Category:	Principal judgment
Parties:	Etuati Seupule-Feau (Applicant) Seventh Day Adventist Church (North NSW Conference) Ltd (Respondent)
Representation:	Pastor A Saunders (Agent for Applicant) Counsel: N Read (Respondent) Solicitors: MRM Lawyers (Respondent)
File Number(s):	2015/00382980