Skeen v Blacktown Workers Club Ltd

[2016] FCCA 246

FEDERAL CIRCUIT COURT OF AUSTRALIA

SKEEN v BLACKTOWN WORKERS CLUB LTD [2016] FCCA 246

Catchwords:
PRACTICE & PROCEDURE – Whether the proceeding should be summarily dismissed pursuant to r.13.10 of the Federal circuit Court Rules 2001 (Cth) – whether the applicant’s claim for relief has reasonable prospect of success – whether the applicant’s claim for relief is frivolous.

Legislation:
Federal Circuit Court Rules 2001 (Cth), r.13.10
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Disability Discrimination Act 1992 (Cth), ss.5, 6, 10, 24, 27, 42, 122, 123
Federal Court of Australia Act 1976 (Cth), s.31A

Cases Cited:
Jago v District Court of New South Wales [1989] HCA 46
Aon Risk Services v Australian National University [2009] HCA 27
Reliance Financial Services v Griffiths & Anor [2010] NSWSC 1490
Spencer v Commonwealth [2010] HCA 28
Skeen v  Blacktown Workers Club Limited [2011] NSWADT 298
Purvis v New South Wales (Department of Education and Training) [2003] HCA 62
Mulchahy v Minchinton [2012] FMCA 380

Applicant: BRUCE ROBERT SKEEN

Respondent: BLACKTOWN WORKERS CLUB LTD

File Number:  SYG 977 of 2015

Judgment of: Judge Emmett

Hearing date: 10 February 2016

Date of Last Submission: 10 February 2016

Delivered at: Sydney

Delivered on: 23 February 2016

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr Colin Magee

Solicitors for the Respondents: Thomson Geer Lawyers

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 977 of 2015

BRUCE ROBERT SKEEN

Applicant

And

BLACKTOWN WORKERS CLUB LTD

Respondent

REASONS FOR JUDGMENT

1. This is an Application in a Case filed by the respondent, Blacktown Workers Club Limited (“the Club”) on 17 September 2015, seeking, inter alia, that the applicant’s Statement of Claim filed on 23 June 2015 be dismissed generally pursuant to r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), or be stayed, or struck out by reason of the claim for relief having no reasonable prospect of success and being frivolous.

2. Rule 13.10 of the Rules is as follows:

   “Disposal by summary dismissal

   The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

   (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

   (b) the proceeding or claim for relief is frivolous or vexatious; or

   (c) the proceeding or claim for relief is an abuse of the process of the Court.”

3. On 9 April 2015, the applicant (“Mr Skeen”), filed an application seeking a range of orders, including compensation and acknowledgement by the Club of certain conduct which Mr Skeen alleges involved discrimination against him by the Club by reason of his alleged disability, namely, coeliac disease.

4. Essentially, Mr Skeen contends that by not providing him with gluten-free gravy with his main meal at a particular function held by the Club, the Club failed to comply with s.5(2)(a) of the Disability Discrimination Act 1992 (Cth) (“the Disability Discrimination Act”).

5. Mr Skeen alleges further breaches in respect of the Club’s conduct following that incident.

6. Section 5 of the Disability Discrimination Act is as follows:

   “Direct disability discrimination

   (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

   (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

   (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

   (b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

   (3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.”

7. The background facts are summarised in submissions filed by the Club on 29 January 2016, as follows:

   “Background facts

   12. The Respondent relies upon affidavits by Ms Vivienne Young sworn 10 September 2015 (‘Young Affidavit’) and Mr James Morgan Stewart sworn 27 January 2016 (‘Stewart Affidavit’) in relation to the background facts. These are summarised below.

   13. The Applicant was member of the Respondent.

   14. On 11 December 2013, the Applicant attended a function at the Respondent’s premises (‘Function’). Some 870 members of the Respondent attended the Function.

   15. The Respondent offered gluten-free main meal options (including a ‘roast dinner’) and a gluten-free dessert option for Function attendees. In addition, the Respondent made provision for attendees who wished to order gluten-free gravy with their gluten-free main meal, and such gluten-free gravy could be pre-ordered by the member at no extra cost.

   16. The Applicant pre-ordered a meal with the Respondent’s staff prior to the Function. The Applicant ordered a gluten-free main meal and a gluten-free dessert.

   17. At the Function the Respondent provided the Applicant with a gluten-free main meal (a ‘roast dinner’) and a gluten-free dessert. The gluten-free main meal was not accompanied by any gravy.

   18. The Respondent contends that at the time the Applicant ordered his meals he did not request that the main meal be served with gluten-free gravy. The Applicant asserts that he specifically ordered a gluten-free main meal with gluten-free gravy.

   19. However, the undisputed facts are that the Applicant attended the Function, and was provided with a main meal and a dessert which were both ‘gluten-free’ and thereby the Respondent catered for the Applicant’s claimed disability.

   20. On 11 December 2013, after being served his main meal, the Applicant complained that his meal did not have gravy. The Respondent then sought to ascertain whether there was ‘gluten-free’ gravy available at the Function. None was able to be found.

   21. As a result of being informed of this information, the Applicant behaved in an angry and disruptive manner. The Applicant was asked to cease his behaviour. The Applicant then went to another part of the Club and purchased another main meal, which he ate. The Applicant then returned to the Function and consumed the gluten-free desert. A summary of the key events that occurred on this day are set out in the Stewart Affidavit at paragraphs [9], [22] – [23].

   22. The Respondent did not take any disciplinary action against the Applicant on this occasion in relation to his conduct or behaviour. Nor was he requested or required to leave the Club (Stewart Affidavit at paragraph [23]).

   23. On 18 December 2013, the Applicant attended the Club and placed an order with the Club’s staff for a ‘gluten- free’ meal for a New Year’s Eve function. At this point the Applicant specifically ordered ‘gluten-free’ gravy with his main meal at the New Year’s Eve function (Stewart Affidavit at paragraph [26]).

   24. Subsequently, on 18 December 2013, the Applicant behaved in a physically and verbally aggressive manner towards the Respondent’s staff and behaved disruptively to both other Club members and the general public. The Applicant’s behaviour led to his temporary suspension from the Club. A summary of the key events that occurred on this day are set out in the Stewart Affidavit at paragraphs [25] – [76], [78] – [105].

   25. On 21 December 2013, the Applicant re-entered the Premises despite being aware that he had been suspended until further notice. The Applicant refused to comply with requests that he not enter the Premises, and subsequently with requests that he leave the Premises. A summary of the key events that occurred on this day are set out in the Stewart Affidavit at paragraphs [106] – [106].

   26. In early 2014 the Respondent took disciplinary proceedings in relation to the Applicant’s conduct as a member of the Respondent, which conduct occurred on 18 and 21 December 2013. The outcome of those disciplinary proceedings was that the Applicant was found guilty of the matters alleged and the Respondent resolved to expel the Applicant from membership of the Respondent. The circumstances in which the disciplinary proceedings arose are set out in more detail in the Stewart Affidavit at paragraphs [114] – [131].”

8. The Club contends that Mr Skeen’s claims against it, as disclosed in Mr Skeen’s Statement of Claim filed on 23 June 2015, have no reasonable prospect of success. The Club further contends that the proceeding before this Court and Mr Skeen’s claims for relief are frivolous. 

9. The Court possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness (See Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 per Mason CJ at [28]). There is a broad public interest in the efficient allocation of the Court’s resources amongst all suitors and it is a consideration to which I have regard in considering the overall interests of justice. It is well recognised that the resolution of disputes serves the public as a whole and not merely the parties to a proceeding (See Aon Risk Services v Australian National University [2009] HCA 27 at [113] per Gummow, Hayne, Crennan, Kiefel and Bell JJ); Reliance Financial Services v Griffiths & Anor [2010] NSWSC 1490 per Pembroke J at [26] and [27]).

10. In considering whether a proceeding should be summarily dismissed, I note that s.31A of the Federal Court of Australia Act 1976 (Cth) (“the FCA Act”) also provides for summary dismissal where a proceeding has no reasonable prospect of success. Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“the FCCA Act”) is in almost identical terms to s.31A of the FCA Act. However, all of r.13.10 of the Rules, s.31A of the FCA Act, and s.17A of the FCCA Act involve construction of the phrase “no reasonable prospect”. All are directed to reducing costs and delay by deterring unmeritorious proceedings.

11. In Spencer v Commonwealth [2010] HCA 28, Hayne, Crennan, Kiefel and Bell JJ at [58]-[59], considered the approach to be adopted to summary dismissal pursuant to s.31A of the FCA Act. In considering the meaning of “no reasonable prospect”, their Honours stated as follows at [60]:

    “Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.”

12. French CJ and Gummow J at [25] expressed the task of the Court to be a practical judgment as to whether an applicant has “more than a fanciful prospect of success”. Their Honours further stated that “where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the court has formed the view that the applicant is unlikely to succeed on the factual issue”.

13. During the course of this proceeding, Mr Skeen was given an opportunity to meet with a pro bono lawyer from Justice Connect. He also participated in a Court annexed mediation ordered by me pursuant to Part 7 of the Rules. That mediation, conducted by a Registrar of the Court, was unsuccessful.

14. Mr Skeen is an elderly gentleman who is passionate about his claims and finds it difficult to consider them from any perspective other than his own. Mr Skeen has hearing problems, although he is not deaf. However, those hearing problems required the use of loud microphones and resulted in many interruptions by Mr Skeen. It also involved a lack of ability on Mr Skeen’s part to listen to any concerns expressed by the Court or anyone else about the prospects of success of his proceeding, and the procedural and evidentiary difficulties that he may face. Every time such difficulties were raised with Mr Skeen, he invariably responded that he was not a lawyer and did not understand legal matters.

15. I tried on many occasions, without success, to assist Mr Skeen in understanding the limitations of the Court and the circumstances the Court must be satisfied exist in order to grant the relief sought. It was for those reasons that the matter was stood over to allow Mr Skeen to meet with a pro bono lawyer from Justice Connect. That meeting occurred but did not provide the answers that Mr Skeen wanted.

16. I accept that Mr Skeen has worked hard all his life in jobs with some level of responsibility. However, Mr Skeen no longer appears to have the ability to hear and listen to matters with which he does not agree. He has embarked on a course of action, culminating in bringing him before this Court, which far outweighs the trifling nature of Mr Skeen’s original complaint about the Club’s failure to provide him with gluten-free gravy.

17. Mr Skeen has had another proceeding against the Club, in relation to a complaint that he could not use his hearing aid properly in the Club’s premises. He alleged that the Club had discriminated against him on the grounds of disability and age by failing to prevent sound engineers from raising the volume in the Club’s Auditorium. Mr Skeen alleged that the Club had allowed the volume to be set too high on four of fifty occasions attended by Mr Skeen. In that proceeding, Mr Skeen raised similar complaints of victimisation and discrimination as in this proceeding. Again, his subsequent conduct led to the temporary suspension of his membership.  Ultimately, the Deputy President, Magistrate Hennessy, found that the Club had not discriminated against Mr Skeen either directly or indirectly (see Skeen v Blacktown Workers Club Limited [2011] NSWADT 298).

18. In order to succeed, Mr Skeen must satisfy the Court that the disability from which I accept he suffers, namely coeliac disease, was the reason for what he alleges to be discriminatory conduct by the Club in failing to provide him with gluten-free gravy. Mr Skeen must satisfy the Court that there is a causal connection between the failure to provide him with gluten-free gravy and what he contends is actionable discriminatory conduct on the part of the Club.

19. In his Statement of Claim, Mr Skeen identifies 25 particulars in support of his allegation of contravention of various sections of the Disability Discrimination Act, as follows:

    “1. Through its non-contract catering section in failing to provide me with (part of) a meal on 11 December 2013, reasonably adjusted, as arranged through a respective customer service department, I allege that the respondent breached section 5 – Direct Discrimination, of the Disability Discrimination Act 1992.

    2. Through its Human Resources section, in failing to provide the Club's Executive Chef with appropriate training in standard procedure for the preparation of meals for patrons with particular dietary needs, resulting in the serving of (part of) a meal not reasonably adjusted on 11 December 2013, as arranged through a respective customer service department, I allege that the respondent breached section 6 – Indirect Discrimination, of the Disability Discrimination Act 1992.

    3. Through its non-contract catering section, in failing to provide me with (part of) a meal on 11 December 2013, not reasonably adjusted, as arranged through a respective customer service department, I allege that the respondent breached section 24 - Goods, services and facilities, of the Disability Discrimination Act 1992.

    4. Through its non-contract catering section, in failing to provide me with (part of) a meal on 11 December 2013, as arranged through a respective customer service department, I allege that the respondent breached section 27(2)(c) - Goods, services and facilities, of the Disability Discrimination Act 1992.

    5. With the act of Ms Kelly, a Director and President of Blacktown Workers Club, on 11 December 2013 directing a staff member to tell me to leave the club because 'I was talking to staff’ (as a second reason), I allege that the respondent breached section 10 - Act done because of disability and for other reason of the Disability Discrimination Act 1992.

    6. With the Customer Service Manager 'Narelle', advising me that I was required to leave the Club, I allege that the respondent breached Section 42 - Victimisation of the Disability Discrimination Act 1992.

    7. With the Customer Service Manager, Narelle, carrying out the direction of the Club's President, Ms Kay Kelly, I allege that the respondent breached section 122 – Liability of persons involved in unlawful acts of the Disability Discrimination Act.

    8. With the Club's Operations Manager, Mr Morgan Stewart, on 18 December 2013 dismissing my remarks, “Morgan, don't you think that a person who has a disability would make the effort to do some research into the effects of the disability, and that any research might include reference to any laws that might apply if the disabled person's needs are not met”, in a cavalier manner, I allege that the respondent breached Section 42 - Victimisation, of the Disability Discrimination Act 1992.

    9. With the action by Mr Stewart in ordering me from the club around midday on 18 December 2013, I allege the respondent breached Section 42 - Victimisation of the Disability Discrimination Act.

    10. With the action by Mr Stewart continuing to order me from the Club during the earlier part of 18 December 2013 I allege that the respondent breached Section 42 - Victimisation of the Disability Discrimination Act.

    11. With the doorman, 'Steve', during the later part of 18 December 2013 saying to me, “Bruce, you are not allowed in the Club tonight”, I allege that the respondent breached Section 42 - Victimisation of the Disability Discrimination Act.

    12. With it being most likely that the doorman, 'Steve', had been instructed in his action by either the General Manager, Mr Neale Vaughan, the Operations Manager, Mr Morgan Stewart or the President, Ms Kay Kelly, I allege that the respondent breached Section 122 - of the Disability Discrimination Act.

    13. With the 'challenge' of me being in the Club by Mr Morgan Stewart, given that Mr Stewart would have been fully aware that the events earlier on that day had been deemed by me as being Human Rights related, I allege that the respondent breached Section 42 - Victimisation of the Disability Discrimination Act.

    14. With the act of a direction to Security personnel to escort me from the premises and with Security personnel carrying out the instruction issued by Mr Stewart, I allege the respondent breached Sect 122 - Liability of persons involved in unlawful acts of the Disability Discrimination Act.

    15. With the Customer Service Manager Narelle, during the evening of 21 December 2013 uttering the words “You have to leave the club, Bruce” I allege that the respondent breached Section 42 - Victimisation of the Disability Discrimination Act.

    16. With the action of Customer Services Manager Narelle, in uttering the words “You have to leave the Club, Bruce”, being consistent with being directed by other and higher management personnel, I allege that the respondent breached Section 122 - Liability of persons involved in unlawful acts of the Disability Discrimination Act.

    17. With the writing of answers to my written questions by the Customer Service Manager being consistent with directions being given by other and higher management personnel, I allege that the respondent breached Section 122 - Liability of persons involved in unlawful acts of the Disability Discrimination Act.

    18. With the calling of the Police to escort me from the premises on 21 December 2013 I allege that the respondent breached Section 42 - Victimisation of the Disability Discrimination Act.

    19. With my removal from the Club on the evening of 18 December 2013 preventing me from participating in the Directors 'Draw' for members to receive Christmas style meats and hampers I allege the respondent breached section 27(2)(c) –Goods, services and facilities of the Disability Discrimination Act.

    20. With the issue of an unsolicited cheque as a refund of the amount paid by me for the meal and show at the New Years Eve Club function I allege that the respondent breached section 27(2)(c) - Goods, services and facilities of the Disability Discrimination Act.

    21. With the issue of a (requested) cheque for the show that I was prevented from attending on 21 December 2013 I allege that the respondent breached section 27(2)(c) – Good, services and facilities of the Disability Discrimination Act.

    22. With a letter of a CITATION being issued to me on 24 January 2014 describing actions by me to be decidedly contrary to what actually occurred during a period of early afternoon and in the evening of 18 December 2013, and in the evening of 21 December 2013, I allege that the respondent breached Section 42 - Victimisation of the Disability Discrimination Act.

    23. With the letter of CITATION, issued on 24 January 2014 advising that I was suspended from all privileges of membership of the Club as of the date of the letter, I allege that the respondent breached Section 42 - Victimisation of the Disability Discrimination Act.

    24. With my written 'defence' of the charges as determined in the Citation being overruled by the Board of Directors of Blacktown Workers Club Limited, the respondent, and the subsequent expulsion from membership of the Club, I allege that the respondent, on 4 March 2014 breached section 42 - Victimisation of the Disability Discrimination Act.

    25. With all alleged breaches of the DDA contained in this Statement of Claim being committed by senior 'management' personnel, including each of the Directors of the Club, the General Manager, the Operations Manager, the Executive Chef, and the Customer Services Manager but also including any non-management staff acting upon direction of management, and with all discrimination, victimisation, harassment and intimidation issues being therefore deemed as pertaining to section 123 - Conduct by directors, servants and agents

    (1)(a) the conduct was engaged in by a director, a servant or agent of the body corporate within the scope of his or her actual or apparent authority; and

    (b) that the director, servant or agent had the state of mind. ·

    (2) Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct,

    I allege that the respondent breached section 123 - Conduct by directors, servants and agents of the Disability Discrimination Act.”

1. Mr Skeen also relied on an affidavit sworn by him on 7 January 2016. That affidavit asserts Mr Skeen’s version of events and seeks to respond to the affidavit material relied on by the Club.

2. In its Defence filed on 22 July 2015, the Club identified for Mr Skeen the particular juridical hurdles that he faced in seeking to obtain the relief claimed.

3. The Club relied on the affidavits of Vivienne Mackenzie Young sworn 10 September 2015 and James Morgan Stewart sworn 27 January 2016. The evidence largely goes to factual disputes. The Club, in making submissions in support of its application, contended that the outcome of this application is unchanged even if Mr Skeen’s version of events was accepted.

1. The Club’s submissions are as follows:

   “33. In order for an unlawful act of discrimination to have occurred the ground or characteristic in question, that is, the Applicant’s disability, must have a causal effect on the decision to commit the discriminatory act.  An aggrieved person has to be able to show a relationship of cause and effect between the relevant characteristic and the action of the discriminator.  That causal connection is described under sections 5(2), 24 and 27 of the DD Act as ‘on the grounds of’.

   34. It is apparent in light of the decision of the High Court in Purvis v New South Wales (Department of Education and Training) [2003] HCA 62; 217 CLR 92 at [166], which considered the expression “because of” in the DD Act, that the appropriate approach to expressions such as ‘on the grounds of’ and ‘because of’ is to question the “true basis” or “real reason” for the act of the alleged discriminator.

   35. It appears from the terms of Particular 1 of the Statement of Claim, that the Applicant contends that by not providing gluten free gravy with his ‘gluten-free’ main meal, the Respondent failed to comply with s.5(2)(a) in that it failed to provide ‘reasonable adjustment’ for him in relation to his main meal at the Function.

   36. Therefore, in order to succeed on the allegations contained in Particular 1 of Statement of Claim the Applicant must prove:

   (i) That the Applicant had a ‘disability’ within the meaning of that term in s. 4 of the DD Act;

   (ii) That a certain ‘act’ or ‘conduct’ occurred;

   (iii) That the conduct related to the provision of ‘goods or services’;

   (iv) That the ‘conduct’ was discriminatory in relation to the terms or conditions the goods or services are made available, or the manner in which they are made available to the Applicant;

   (v) That the Respondent failed to make a ‘reasonable adjustment’ for the Applicant’s disability in relation to the terms or conditions the goods or services are made available, or the manner in which they are made available to the Applicant;

   (vi) The failure to make the reasonable adjustment in relation to the provision of the ‘goods or services’ had the effect that the Applicant was:

   a. because of his disability;

   b. treated less favourably than a person without the disability would be treated in circumstances that are not materially different;

   (vii) The real or true reason that the ‘act’ or ‘conduct’ was done was on the grounds of his disability;

   37. Whilst the Statement of Claim does not plead the nature of the Applicant’s alleged disability, it is noted for the purposes of this application that the Applicant asserts that he has either ‘coeliac disease’ or is ‘gluten intolerant’.

   38. The Applicant’s focus on the absence of gravy on his ‘gluten-free’ main meal is misplaced.  The service being provided by the Respondent was not the provision of ‘gravy’.  The relevant ‘service’ the subject of the Applicant’s claim is the provision by the Respondent of the ‘Function’ being a combination of entertainment and refreshments. 

   39. It is apparent that even on the Applicant’s version of the events relating to the Function that the Respondent did not refuse to permit the Applicant to attend the function or impose terms or conditions upon which he could attend the function in a manner that that was ‘discriminatory’ in any sense. 

   40. Nor could it objectively be concluded that the manner in which the Respondent provided the relevant service ‘Function’ to the Applicant was discriminatory.  The Respondent provided the entertainment and refreshments to the Applicant, including access to the Premises, provided a main meal and a dessert, and the Show in the same manner as was provided to persons without the Applicant’s disability. The Applicant was not treated less favourably than persons without the disability he claims to suffer.

   41. In order to comply with its obligations under the DD Act, the Respondent provided persons who wished to attend the Function and who suffered a disability involving gluten intolerance with options for ‘gluten-free’ meals, which would enable them to attend the Function and consume the same categories of meals, main meal and dessert, as was provided to persons who did not suffer the disability, and thereby, not treat them in a disadvantageous manner.

   42. Indeed the Respondent made provisions for the availability of gluten-free meals and gluten-free desserts that catered for persons with the disability the Applicant claims to suffer, in order to ensure that persons with such a disability were not treated less favourably. The provision of such meals amounted to a reasonable adjustment to the Respondent’s food menu for the Function.  As did the Respondent having available, on request and for no extra charge, gluten-free gravy for main meal.

   43. Indeed on the date of the Function the Respondent provided the Applicant with a ‘gluten-free’ main meal and dessert, which he was able to consume in light of his disability.  Thus he was not treated less favourably than persons without the disability were treated in the same circumstances, who were also provided with a main meal and a dessert to consume at the Function.

   44. From the content of Particular 1 of the Statement of Claim it is apparent that the Applicant does not (and could not) contend that that there was discrimination against him because he was being treated less favourably than those attending the Christmas Function who did not have his disability.  It is apparent that the Applicant was not treated differently to any other person who attended the Function.  He was not treated less favourably than persons without his disability were treated in circumstances which were not materially different.  The Applicant was able to attend the Function by paying the same fee ($1.00), was provided with a main meal and dessert, as were the other attendees, and he was able to attend the Show. The absence of gravy on the Applicant's main meal did not have the effect that the Applicant was treated less favourably than a person without the disability would have been treated in circumstances that were not materially different.

   45. Even on the Applicant’s own version of the events relating to the ordering of the meals for the Christmas function, as contained in paragraphs 13 – 16 of his affidavit dated 7 January 2016, it could not be said that the failure to provide the ‘gluten-free’ gravy with his main meal was done on the grounds of his disability.  It is apparent that on the Applicant’s version the Respondent agreed to provide gluten-free gravy with the main meal for the function.  Thus it agreed to reasonably adjust the goods to be provided in order to accommodate his disability.

   46. Even if the Applicant’s version is accepted, the failure on the date of the Function to provide the gluten-free gravy was not done on the grounds of his disability, but at its highest was due to either:

   (i) a miscommunication between the Applicant and the Respondent’s staff at the time he ordered the meal; or

   (ii) an administrative error on the part of the Respondent’s staff in entering the special requirements for the Applicant’s main meal into its system;

   47. Therefore, on none of the potential circumstances in which it came to be that the Applicant’s main meal was not provided with gluten-free gravy, was that conduct done on the grounds that he suffered from the particular disability claimed. 

   48. Therefore, the Applicant cannot on any version of the facts establish, on an objective basis, the critical element required to make out such a claim, namely the causal nexus between the conduct and the suffering of the disability. 

   49. There is no basis in the pleadings or the evidence before the Court, upon which it could be concluded that the Respondent determined that it would not provide ‘gluten-free’ gravy at the time of the Christmas Function to the Applicant because he suffered from coeliac disease or was gluten intolerant.

   50. Indeed, as at 11 December 2013, the Respondent was not aware, and had no reason to be aware (save for the Applicant's pre-ordering of a gluten-free meal for the Function), that the Applicant suffered from a disability in respect of gluten intolerance.  The Respondent's records indicate that the Applicant had not previously requested the provision of food or beverages that did not contain gluten.  Indeed, the Applicant's purchase history shows that both before and after the Christmas Function, the Applicant purchased food and beverage items, including bulk beer which to the best of the Club's knowledge, is not gluten-free.  (Stewart Affidavit at [17] and Annexure MS-2 being a copy of the Member Sales Audit showing a transaction history in respect of food and beverage purchases made on the Respondent's point of sale system using the Applicant's membership card).

   51. This part of the Applicant’s claim is therefore without reasonable prospects of success, in that there is no substance to the underlying claim, despite some factual controversy as to the circumstances in which there came to be no ‘gravy’ supplied with the Applicant’s gluten free main meal.

   Particular 2

   52. The Applicant appears to plead in Particular 2 of the Statement of Claim that the same conduct amounts to indirect discrimination pursuant to section 6 of the DD Act.

   53. The basis of the alleged indirect discrimination is difficult to ascertain from the Statement of Claim, however, it is assumed for the purposes of this application that this also relates to the ‘failure’ to provide ‘gravy’ with his main meal at the Christmas Function.

   54. Section 6 is in the following terms:

   6 Indirect disability discrimination

   (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

   (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

   (b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

   (c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

   (2) For the purposes of this Act, a person (the discriminator ) also discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:

   (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and

   (b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

   (c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

   (3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.

   (4) For the purposes of subs (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.

   55. Section 6 of the DD Act provides that indirect discrimination occurs where:

   (i) the discriminator requires or proposes to require the person with a disability to comply with a requirement or condition

   (ii) the person cannot comply because of the disability

   (iii) the requirement has or is likely to have the effect of disadvantaging people with the disability.

   56. Section 6 of the DD Act imposes a duty to make reasonable adjustments to avoid indirect discrimination.

   57. It is not apparent from the terms of Particular 2 of the Statement of Claim, what ‘requirement’ or ‘condition’ it is alleged that the Respondent required the Applicant to comply with, how it is said he was not able to comply with it or them due to his disability, or how it is said to have had the effect of disadvantaging the Applicant.

   58. It is apparent that even on the facts of the case as asserted by the Applicant, that ss 6 (1) and (2) of the DD Act is not engaged.  No condition was imposed upon the Applicant which, because of his disability, he did not or would not comply or was not able to or would not be able to comply.  There was no condition imposed upon him which required him to do anything in particular. He was required to pay $1.00 to attend the Christmas Function by the Respondent, but there was no condition attached to the payment or his attendance.

   59. Indeed there was no requirement that he attend the Christmas Function, or having attended that he consume the meals provided.  It is apparent that the meal provided was one that he was able to consume despite his disability, as it was in fact a ‘gluten-free’ meal.

   60. It is also apparent that there is no objective basis upon which the Applicant's claim on the grounds of indirect discrimination has a reasonable prospect of success because he cannot demonstrate discrimination, on the grounds of a disability for the purposes of 6 of the DD Act.

   61. This part of the Applicant’s claim is therefore without reasonable prospects of success.

   Particular 3

   62. It is apparent that Particular 3 of the Statement of Claim, in essence makes the same claim as that contained in Particular 1 of the Statement of Claim.

   63. For the reasons set out above in relation to Particular 1 of the Statement of Claim, this claim does not have reasonable prospects of success.

   Particular 4

   64. The Applicant also alleges that the Respondent has breached the provisions of s.27(2)(c) of the DD Act.  Section 27(2)(c) of the DD Act provides that it is unlawful for a club to discriminate against a person who is a member of the club on the ground of the member's disability by denying the member access, or limiting the member’s access to any benefit provide by the club.

   65. It is unclear from the terms of Particular 4 what the ‘benefit’ is that the Applicant says he was denied access to by the Respondent. 

   66. The term ‘benefit’ is not defined in the DD Act.  In the context of Section 27(2)(c) of the DD Act ‘benefit’ would appear to mean ‘something that is provided by the club of value to the member, but not a monetary amount, or a good or service provided for commercial gain.’

   67. The essential elements of such a breach are that:

   (i) the existence of a relevant ‘benefit’ provided by the club;

   (ii) the conduct of denying or limiting the member’s access to the benefit;

   (iii) that the reason for the club’s action in denying or limiting the member’s access to the benefit, was on the grounds of the member’s disability;

   68. It is apparent from the factual material before the Court, that to the extent that it could be said to be any relevant ‘benefit’ provided by the Respondent, it was the opportunity for the Applicant to attend the Christmas Function, at a heavily subsidised rate, and be provided with entertainment and refreshments.

   69. The factual material before the Court supports a finding that the Respondent did not deny or limit the Applicant’s access to the Christmas Function.  Indeed by providing the option of a gluten free meal, it took steps to remove any potential limit to his access to the ‘benefit’ that may have arisen due to his disability.

   70. It would stretch the bounds of credibility for the ‘benefit’ being contemplated by s.27(2)(c) of the DD Act, to be the provision of ‘gluten-free’ gravy with an otherwise ‘gluten-free’ meal.

   71. Even if it were accepted that the provision of ‘gluten-free’ gravy was the relevant ‘benefit’ for the purposes of the DD Act, it could not objectively be found that the Respondent ‘denied or limited’ the Applicant’s access to ‘gluten-free’ gravy on the grounds of the member’s disability.  The fact that he was ‘gluten intolerant’ was not the reason he was not provided with the ‘gluten-free’ gravy.

   72. As discussed above, the reason that the Applicant was not provided with ‘gluten-free’ gravy, was due to one of the following reasons:

   (i) the Applicant failed to request ‘gluten-free’ gravy when ordering his meal; or

   (ii) a potential miscommunication between the Applicant and the Respondent’s staff at the time he ordered the meal; or

   (iii) a potential administrative error on the part of the Respondent’s staff in entering the special requirements for the Applicant’s main meal into its system.

   73. Further, when the Applicant requested of the Respondent’s staff on the day of the Christmas Function that he be provided with ‘gluten-free’ gravy, attempts were made to ascertain whether any such gravy was available, and it can be inferred if it was it would have been provided (Stewart Affidavit at [20] –[21]).  Therefore, far from the fact of his disability being the reason the gravy was not supplied, it appears that unavailability of ‘gluten-free’ gravy on the day of the Christmas Function (it not having been pre-ordered) was the final reason it was not provided.

   74. As set out above, the Applicant cannot on any version of the facts establish, on an objective basis, the critical element required to make out such a claim, namely the causal nexus between the conduct and the suffering of the disability. 

   75. There is no basis in the pleadings or the evidence before the Court, upon which it could be concluded that the Respondent determined that it would deny or limit the Applicant access to  ‘gluten-free’ gravy at the time of the Christmas Function because he suffered from coeliac disease or was gluten intolerant.

   76. This part of the Applicant’s claim is therefore without reasonable prospects of success, in that there is no substance to the underlying claim, despite some factual controversy as to the circumstances in which there came to be no ‘gravy’ supplied with the Applicant’s gluten free main meal.

   Particular 5

   77. This particular alleges a breach of s.10 of the DD Act by the Respondent. It is asserted that the relevant discriminatory conduct was the Applicant being directed to leave the Premises on 11 December 2013 by an officer of the Respondent.

   78. There are two bases upon which this allegation has no reasonable prospects of success.

   79. First, section 10 of the DD Act is not a provision that can be breached by a person.  It is a facilitative provision in relation to proof of an act of ‘discrimination’ in circumstances where there were two or more reasons for the impugned conduct, one of which was due to the disability of the person.

   80. This provision is not applicable to the circumstances of the Applicant’s claim as it cannot be objectively demonstrated on the facts that the Applicant was asked to leave the Club by an officer of the Respondent on 11 December 2013.  Indeed the evidence demonstrates that the Applicant remained in the Premises throughout the evening of 11 December 2013, attended the Christmas Function and was not subject to any sanction (Stewart Affidavit at [22] –[23]).

   81. It cannot therefore be said that the Applicant has established that he has suffered any loss, injury or damage as a consequence of any action on the part of the Respondent in relation to this allegation.

   82. Even if it could be established that he was “told to leave the club” there is no material to demonstrate that one of the reasons he was told to leave the Club was on the grounds of his disability.  Even on the Applicant's version of the events he was asked to leave “because he was talking to staff” (Particular 5 of the Statement of Claim) and not because of his disability. 

   83. This part of the Applicant’s claim is therefore without reasonable prospects of success, in that there is no substance to the underlying claim, regardless of any factual controversy as to the circumstances of his conduct and his interaction with the Respondent’s officers and staff on 11 December 2013 at the Christmas Function.

   Particulars 6 and 7

   84. The Applicant’s allegation in particular 6 is one of ‘victimisation’ pursuant to section 42 of the DD Act. The particular asserts as a factual basis for the alleged breach an allegation that he was “required to leave the Club”.  It is not clear on what date this conduct is alleged to have occurred, but it has been assumed for the purposes of this application that it was on 11 December 2013.

   85. Section 42 is in the following terms:

   Victimisation

   (1) It is an offence for a person to commit an act of victimisation against another person.

   Penalty:  Imprisonment for 6 months.

   (2) For the purposes of subsection (1), a person is taken to commit an act of victimisation against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

   a) has made, or proposes to make, a complaint under this Act or the Australian Human Rights Commission Act 1986; or

   b) has brought, or proposes to bring, proceedings under this Act or the Australian Human Rights Commission Act 1986 against any person; or

   c) has given, or proposes to give, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Australian Human Rights Commission Act 1986; or

   d) has attended, or proposes to attend, a conference held under this Act or the Australian Human Rights Commission Act 1986; or

   e) has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Australian Human Rights Commission Act 1986; or

   f) has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Australian Human Rights Commission Act 1986; or

   g) has made an allegation that a person has done an act that is unlawful by reason of a provision of this Part;

   or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).

   86. There is no evidence before the Court that the Applicant, at the time at which the purported conduct alleged in particular 7 occurred (which is not admitted), had directly or indirectly made the Respondent aware that the Applicant had done, or proposed to do, an act or thing referred to in any of the paragraphs in section 42(2)(a) to (g) (inclusive).

   87. Further, neither the Statement of Claim or the evidence discloses any material facts which could support a finding that the Respondent subjected, or threatened to subject, the Applicant to any detriment on any of the grounds set out in section 42(2)(a) to (g) (inclusive), or, on the ground that the Respondent believed that the Applicant had done, or proposed to do, an act or thing referred to many of the paragraphs in section 42(2)(a) to (g) (inclusive). 

   88. Further, the material before the Court does not establish that the Respondent subjected, or threatened to subject, the Applicant to any detriment.

   89. Detriment is not defined in the DD Act.  In ordinary usage detriment means “loss, damage or injury” (Macquarie dictionary, 2006): Mulchahy v Minchinton [2012] FMCA 380 at [29]. As set out above, there is no evidence that the Applicant was in fact required to leave the premises on 11 December 2013, as a result of the alleged conduct (Stewart Affidavit at [23]). Nor is there any evidence that he suffered in the other detriment arising in relation to this alleged conduct (Stewart Affidavit at [24]).

   90. Even if the Applicant could prove that he was advised that he was required to leave the Club (which is not admitted), there is no material upon which it could be objectively determined that this ‘act’ was done on the ground that the Applicant had done, or proposed to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive) on 11 December 2013.

   91. This part of the Applicant’s claim is therefore without reasonable prospects of success, in that there is no substance to the underlying claim, regardless of any factual controversy as to whether the alleged conduct of the Respondent’s officers and staff on 11 December 2013 at the Christmas Function actually occurred.

   92. Particular 7 of the Statement of Claim appears to refer to the same ‘act’ as alleged in Particular 6.  In particular 7 the Applicant alleges a breach of s.122 of the DD Act.

   93. Section 122 is in the following terms:

   Liability of persons involved in unlawful acts

   A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2, 2A or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act.

   94. It is apparent that this section does not of itself create a basis for an allegation of breach of the DD Act, by the Respondent, but is a facilitative provision designed to permit persons not directly responsible for the impugned act to be deemed to have also breached the relevant provision of the DD Act.

   95. This provision is therefore not applicable to the Applicant’s application before the Court, as the Respondent is the only ‘party’ joined to the proceedings.

   96. This part of the Applicant’s claim is therefore without reasonable prospects of success.

   97. Further, when regard is had to what is at the core of the Applicant’s complaint in respect to particulars 1-7 of the Statement of Claim, namely the non-provision of ‘gluten-free’ gravy, in the context of the overall ‘goods or services’ or ‘benefit’ provided by the Respondent, in circumstances where he was otherwise able to attend the Christmas function was provided with the gluten-free meal, his claim could only be seen as frivolous or vexatious.

   Particular 8

   98. In particular 8 of the Statement of Claim the Applicant alleges that the conduct of Mr Stewart in “dismissing my remarks…in a cavalier manner” amounted to victimisation as defined in section 42 of the DD Act by the Respondent.

   99. First, it is denied that Mr Stewart undertook the conduct alleged.  Mr Stewart’s version of the events of this meeting are set out in paragraphs [26] to [61] of the Stewart Affidavit, and in particular at paragraphs [51] and [52].

   100. Secondly, there is no evidence before the Court that the Applicant, at the time at which the purported conduct alleged in particular 8 occurred (which is not admitted), had directly or indirectly made the Respondent or Mr Stewart aware that he had done, or proposed to do, an act or thing referred to in any of the paragraphs in section 42(2)(a) to (g) (inclusive).

   101. Indeed there is no evidence that the Applicant had in fact taken any such steps at the relevant time.

   102. Further, the material before the Court does not establish that the Respondent subjected, or threatened to subject, the Applicant to any detriment.  The Statement of Claim does not identify what, if any detriment the Applicant is said to have suffered as a result of the alleged conduct.

   103. However, even if the Applicant could establish that he suffered some detriment from the conduct, neither the Statement of Claim or the evidence discloses any material facts which could support a finding that the Respondent subjected, or threatened to subject, the Applicant to the detriment on any of the grounds set out in section 42(2)(a) to (g) (inclusive), or, on the ground that the Respondent believed that the Applicant had done, or proposed to do, an act or thing referred to many of the paragraphs in section 42(2)(a) to (g) (inclusive). 

   104. There is no material upon which it could be objectively determined that this ‘act’ was done on 11 December 2013, on the ground that the Applicant had done, or proposed to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).

   105. This part of the Applicant’s claim is therefore without reasonable prospects of success, in that there is no substance to the underlying claim, regardless of any factual controversy as to whether the alleged conduct of Mr Stewart on 18 December 2013 actually occurred.

   Particulars 9, 10, 11, 12 13 and 14

   106. Particulars 9, 10, 11, 12, 13 and 14 of the Statement of Claim, all relate to incidents that occurred on 18 December 2013 at the Respondent’s Premises.  The Applicant primarily alleges that each of the actions taken were alleged to have been taken by the Respondent, its employees or officers on that date amounted to ‘victimisation’ pursuant to section 42 of the DD Act (although Particulars 12 and 14 are pleaded as breaches of s.122).

   107. The allegations primarily relate to the circumstances in which employees of the Respondent directed that the Applicant leave the Premises and not be permitted to re-enter until further notice.

   108. The Respondent’s version of the events of this date is set out in paragraphs [66] to [88] of the Stewart Affidavit. It is not in dispute that the Applicant was directed to leave the Respondent’s premises, and that steps were taken to have the Applicant removed from the Premises and to prevent his return later that evening.

   109. Whilst, the Statement of Claim does not identify the relevant ‘detriment’ alleged to have been suffered by the Applicant, in relation to each allegation, it is assumed for the purposes of this application that it was the Applicant’s ‘removal’ from the Premises.

   110. The Applicant must establish that he was subject to the relevant detriment(s), on the grounds that he had done, or proposed to do, an act or thing referred to in any of the paragraphs in section 42(2)(a) to (g) (inclusive) of the DD Act.

   111. As set out above, there is no evidence before the Court that the Applicant, at the time at which the purported conduct alleged in these particulars occurred, had directly or indirectly made the Respondent, Mr Stewart or other officers or employees of the Respondent aware that that he had done, or proposed to do, an act or thing referred to in any of the paragraphs in section 42(2)(a) to (g) (inclusive) of the DD Act.

   112. Indeed there is no evidence that the Applicant had in fact taken any such steps at the relevant time.

   113. It is apparent from the material before the Court that the conduct alleged on the part of the Respondent, was taken by the Respondent as a direct response to the behaviour and conduct of the Applicant in the Premises of the Club.  Whether or not the conduct occurred as alleged by the Respondent or as alleged by the Applicant, the underlying causal factor was the Respondent’s perception of the inappropriateness of the Applicant’s behaviour and conduct at that time.

   114. Neither the Statement of Claim or the evidence discloses any material facts which could support a finding that the acts of Respondent were done on any of the grounds set out in section 42(2)(a) to (g) (inclusive), or, on the ground that the Respondent believed that the Applicant had done, or proposed to do, an act or thing referred to many of the paragraphs in section 42(2)(a) to (g) (inclusive).

   115. At paragraph [77] of the Stewart Affidavit, the Respondent states that the decision to require the Applicant to leave the Respondent’s premises was not taken on the grounds that the Applicant had a disability, or that the Applicant had made an allegation that the Respondent had acted unlawfully, or proposed to make a complaint, or take proceedings under the DD Act.

   116. Further, at paragraphs [104] of the Stewart Affidavit, the Respondent states that the decision taken on the evening of 18 December 2013, to attempt to prevent the Applicant from entering the Respondent’s premises, and the decision to require the Applicant to leave the Respondent’s premises and suspend him from returning to the premises until further notice, were not taken on the grounds that the Applicant had a disability, or that the Applicant had made an allegation that the Respondent had acted unlawfully, or proposed to make a complaint, or take proceedings under the DD Act.

   117. There is no material upon which it could be objectively determined that these ‘acts’ were done on the ground that the Applicant had done, or proposed to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive) on 18 December 2013.

   118. This part of the Applicant’s claim is therefore without reasonable prospects of success, in that there is no substance to the underlying claim, regardless of any factual controversy as to whether the alleged conduct on the part of the Applicant occurred as he alleges or as alleged by the Respondent.

   Particulars 15, 16, 17 and 18

   119. Particulars 15, 16, 17 and 18 of the Statement of Claim, all relate to incidents that occurred on 21 December 2013 at the Respondent’s Premises.  The Applicant primarily alleges that each of the actions taken were alleged to have been taken by the Respondent, its employees or officers on that date amounted to ‘victimisation’ pursuant to section 42 of the DD Act (although Particulars 16 and 17 are pleaded as breaches of s.122).

   120. The allegations primarily relate to the circumstances in which employees of the Respondent directed that the Applicant leave the Premises and called the Police to provide assistance with the removal of the Applicant from the Premises.

   121. The Respondent’s version of the events of this date is set out in paragraphs [106] to [113] of the Stewart Affidavit. It is not in dispute that the Applicant was directed to leave the Respondent’s premises, and that steps were taken to have the Applicant removed from the Premises, including calling the Police to escort the Applicant from the Premises when he refused to leave.

   122. Whilst, the Statement of Claim does not identify the relevant ‘detriment’ alleged to have been suffered by the Applicant, in relation to each allegation, it is assumed for the purposes of this application that it was the Applicant’s ‘removal’ from the Premises.

   123. The Applicant must establish that he was subject to the relevant detriment(s), on the grounds that he had done, or proposed to do, an act or thing referred to in any of the paragraphs in section 42(2)(a) to (g) (inclusive) of the DD Act.

   124. As set out above, there is no evidence before the Court that the Applicant, at the time at which the purported conduct alleged in these particulars occurred, had directly or indirectly made the Respondent, Mr Stewart or other officers or employees of the Respondent aware that that he had done, or proposed to do, an act or thing referred to in any of the paragraphs in section 42(2)(a) to (g) (inclusive) of the DD Act.

   125. Indeed there is no evidence that the Applicant had in fact taken any such steps at the relevant time.

   126. It is apparent from the material before the Court that the conduct alleged on the part of the Respondent, was taken by the Respondent as a direct response to the behaviour and conduct of the Applicant in the Premises of the Club.  Whether or not the conduct occurred as alleged by the Respondent or as alleged by the Applicant, the underlying causal factor was the Respondent’s perception of the inappropriateness of the Applicant’s behaviour and conduct at that time.

   127. Neither the Statement of Claim nor the evidence discloses any material facts which could support a finding that the acts of Respondent were done on any of the grounds set out in section 42(2)(a) to (g) (inclusive), or, on the ground that the Respondent believed that the Applicant had done, or proposed to do, an act or thing referred to many of the paragraphs in section 42(2)(a) to (g) (inclusive).

   128. At paragraph [109] of the Stewart Affidavit, the Respondent states that neither the decision to require the Applicant to leave the Respondent’s premises on 21 December 2013, or the decision to request the attendance of the Police to assist with the Applicant’s removal from the premises were taken on the grounds that the Applicant had a disability, or that the Applicant had made an allegation that the Respondent had acted unlawfully, or proposed to make a complaint, or take proceedings under the DD Act

   129. There is no material upon which it could be objectively determined that these ‘acts’ were done on the ground that the Applicant had done, or proposed to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive) on 21 December 2013.

   130. This part of the Applicant’s claim is therefore without reasonable prospects of success, in that there is no substance to the underlying claim, regardless of any factual controversy as to whether the alleged conduct on the part of the Applicant occurred as he alleges or as alleged by the Respondent.

   Particular 19

   131. The Applicant alleges in paragraph 19 that his removal from the Premises on 18 December 2013, resulted in a breach of s. 27(2)(c) of the DD Act.

   132. In particular the Applicant claims that his removal from the Respondent’s premises on the evening of 18 December 2013 prevented him from participating in the Director’s ‘Draw’ for members that was to occur that evening. 

   133. The Respondent’s version of the events in respect to this issue are set out in paragraphs [70] to [76] and [78] – [79] of the Stewart Affidavit.  Whilst the Applicant had been directed to leave the Respondent’s premises earlier that day, it is undisputed that he returned to the Premises at or around the time that the ‘draw’ was made (at 7:00 pm) on 18 December 2013.

   134. There is no evidence before the Court that the Applicant was in fact denied access, or that his access was limited to any ‘benefit’ provided by the Respondent.

   135. Even if the Applicant could establish that he was denied access to the ‘benefit’, the Applicant would still have to establish that this was done on the ground of his disability.

   136. The factual material before the Court supports a finding that the Respondent did not deny or limit the Applicant’s access to the ‘draw’ due to the fact that he suffered from coeliac disease or was ‘gluten intolerant’. The grounds for the denial or limiting of access to the benefit (if any) were due to the opinion formed by the Respondent as to the inappropriate nature of the Applicant’s conduct earlier that day.

   137. The Applicant cannot on any version of the facts establish, on an objective basis, the critical element required to make out such a claim, namely the causal nexus between the denial of access to the benefit and the suffering of the disability. 

   138. This part of the Applicant’s claim is therefore without reasonable prospects of success, in that there is no substance to the underlying claim, despite some factual controversy as to whether in the circumstances the Applicant was in fact denied access to the ‘draw’.

   Particulars 20 and 21

   139. The Applicant alleges in paragraphs 20 and 21 further breaches of s. 27(2)(c) of the DD Act.

   140. In particular the Applicant claims that he was prevented by the Respondent from attending two functions which he had intended to attend at the Respondent’s premises on 21 December 2013 and New Year’s Eve.

   141. There is no dispute that due to the Respondent’s decision to suspend the Applicant’s membership of the Club, he was thereby prevented from attending the relevant functions.  It is also not in dispute that the Respondent refunded the Applicant the costs of tickets that the Applicant had purchased for each function.

   142. At paragraph [112] of the Stewart Affidavit, the Respondent states that it did not ‘deny’ the Applicant’s access to the show on the evening of 21 December 2013 on the grounds that the Applicant had a disability, namely due to the fact that he suffered from coeliac disease or was ‘gluten intolerant’. 

   143. Similarly, at paragraph [113] of the Stewart Affidavit, the Respondent states that it did not ‘deny’ the Applicant’s access to the New Year’s Eve function on the grounds that the Applicant had a disability, namely due to the fact that he suffered from coeliac disease or was ‘gluten intolerant’.

   144. It is apparent from the content of the Stewart Affidavit that the grounds for the denial or limiting of access to the benefits, in both cases, were due to the Respondent’s decision to suspend the Applicant’s membership of the Club, which was based upon the opinion formed by the Respondent as to the inappropriate nature of the Applicant’s conduct on 18 December 2013.  

   145. The Applicant cannot on any version of the facts establish, on an objective basis, the critical element required to make out such a claim, namely the causal nexus between the denial of access to the benefit and the suffering of the disability. 

   146. This part of the Applicant’s claims in these paragraphs are therefore without reasonable prospects of success, in that there is no substance to the underlying claims.

   Particulars 22, 23 and 24

   147. Particulars 22, 23, and 24 of the Statement of Claim, all relate to the disciplinary proceedings taken by the Respondent, arising from the incidents that occurred on 18 and 21 December 2013 at the Respondent’s Premises. The Applicant in essence alleges that the disciplinary proceedings, instituted by the Notice of Charge, and the outcome of the proceedings, being his expulsion from the membership of the Respondent, amounted to victimisation in breach of s.42 of the DD Act.

   148. The Respondent’s version of the events in relation to the Disciplinary proceedings are set out in paragraphs [114] to [131] of the Stewart Affidavit.

   149. It is apparent that the relevant detriment alleged to have been suffered by the Applicant, is respectively his suspension (particular 23) and his ‘expulsion’ from the membership of the Respondent (particular 24).

   150. The Applicant must establish that he was subject to the relevant detriment(s), on the grounds that he had done, or proposed to do, an act or thing referred to in any of the paragraphs in section 42(2)(a) to (g) (inclusive) of the DD Act.

   151. The Notice of Charge alleged that the Applicant engaged in conduct which was unbecoming of a member; and that the Applicant engaged in conduct prejudicial to the interests of the Respondent (Stewart Affidavit at [115] and Annexure MS-8).  The particulars of the charges contained in the Notice of Charge, clearly relate to the alleged conduct on the part of the Applicant on 18 December 2013 and 21 December 2013.

   152. In relation to the Applicant’s claims as set out in particulars 22 and 23 of the Statement of Claim, the Respondent asserts (at paragraph [116] of the Stewart Affidavit) that the Notice of Charge was not issued in respect of the Applicant's behaviour at the Christmas Function, the meals ordered by the Applicant for either the Christmas Function or the New Year's Eve function or any potential disability affecting the Applicant.

   153. The Respondent asserts that the decision of the Respondent’s Board to issue the Notice of Charge, was not taken on the grounds that the Applicant had made an allegation that the Respondent had acted unlawfully, or proposed to make a complaint, or take proceedings under the DD Act (Stewart Affidavit at paragraph [117]).

   154. Further, the decision of the Respondent’s Board to suspend the Applicant from all privileges of membership of the Respondent (as conveyed in the Notice of Charge) until the charges were heard and determined, was not taken on the grounds that the Applicant had made an allegation that the Respondent had acted unlawfully, or proposed to make a complaint, or take proceedings under the DD Act (Stewart Affidavit at paragraph [118]).

   155. Neither the Statement of Claim, nor the evidence discloses any material facts which could support a finding that the issuing of the Notice of Charge by Respondent was done on any of the grounds set out in section 42(2)(a) to (g) (inclusive), or, on the ground that the Respondent believed that the Applicant had done, or proposed to do, an act or thing referred to many of the paragraphs in section 42(2)(a) to (g) (inclusive).

   156. It is apparent from the material before the Court that the issuing of the Notice of Charge by Respondent, was taken by the Respondent as a direct response to the behaviour and conduct of the Applicant in the Premises of the Club.  Whether or not the conduct occurred as alleged by the Respondent or as alleged by the Applicant, the underlying causal factor was the Respondent’s perception of the inappropriateness of the Applicant’s behaviour and conduct at that time.

   157. There is no material upon which it could be objectively determined that issuing of the Notice of Charge by Respondent was done on the ground that the Applicant had done, or proposed to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).

   158. Therefore, the Applicant’s claims as set out in particulars 22 and 23 of the Statement of Claim are without reasonable prospects of success, in that there is no substance to the underlying claim, regardless of any factual controversy as to whether the alleged conduct on the part of the Applicant occurred as he alleges or as alleged by the Respondent.

   159. In respect to the allegation in particular 24 in relation to the findings and determination of the Respondent’s Board in regards to the Notice of Charge, the Respondent asserts (Stewart Affidavit at paragraph [125]) that at the Citation Meeting the Respondent’s Board did not consider the circumstances of the Applicant's behaviour at the Christmas Function, the meals ordered by the Applicant for either the Christmas Function or the New Year's Eve function or any potential disability affecting the Applicant.

   160. Nor did the Respondent’s Board, as part of its consideration of the matters before it at the Citation meeting, have regard to, or take into consideration, any circumstances in which the Applicant had made an allegation that the Respondent had acted unlawfully or proposed to make a complaint or take proceedings under the DD Act (Stewart Affidavit at paragraph [126]).

   161. This is supported by the contents of the Board Minutes for the Citation Meeting (Annexures MS-13 and 14 of the Stewart Affidavit).

   162. The decision of the Respondent’s Board to find the Applicant guilty of the two charges alleged in the Notice of Charge, was not taken on the grounds that the Applicant had made an allegation that the Respondent had acted unlawfully, or proposed to make a complaint, or take proceedings under the DD Act (Stewart Affidavit at paragraph [128]).

   163. The decision of the Respondent’s Board on 11 March 2014 to resolve to expel the Applicant from membership of the Respondent, was not taken on the grounds that the Applicant had made an allegation that the Respondent had acted unlawfully, or proposed to make a complaint, or take proceedings under the DD Act (Stewart Affidavit at paragraph [130]).

   164. Neither the Statement of Claim or the evidence discloses any material facts which could support a finding that the findings of guilt in respect to the charges contained in the Notice of Charge, or the sanction imposed by Respondent were done on any of the grounds set out in section 42(2)(a) to (g) (inclusive), or, on the ground that the Respondent believed that the Applicant had done, or proposed to do, an act or thing referred to many of the paragraphs in section 42(2)(a) to (g) (inclusive).

   165. It is apparent from the material before the Court that the findings of guilt in respect to the charges contained in the Notice of Charge, or the sanction imposed by Respondent, were determined by the Respondent based upon the information provided to them in respect to the alleged behaviour and conduct of the Applicant in the Premises of the Club on 18 and 21 December 2013.  Whether or not the conduct occurred as alleged by the Respondent or as alleged by the Applicant, the underlying causal factor in relation to the relevant ‘acts’ were the allegations of inappropriate behaviour and conduct on the part of the Applicant on those dates.

   166. There is no material upon which it could be objectively determined that that the findings of guilt in respect to the charges contained in the Notice of Charge, or the sanction imposed by Respondent were done on the ground that the Applicant had done, or proposed to do, an act or thing referred to in any of paragraphs (a) to (g) (inclusive).

   167. This part of the Applicant’s claim is therefore without reasonable prospects of success, in that there is no substance to the underlying claim, regardless of any factual controversy as to whether the alleged conduct on the part of the Applicant occurred as he alleges or as alleged by the Respondent.

   Particular 25

   168. Particular 25 contains an allegation of discrimination pursuant to section 123 of the DD Act.  This allegation is essentially one alleging that the conduct of the Respondent’s officers and employees who participated in the alleged discriminatory conduct and victimisation of the Applicant amounted to a breach of s.123 of the DD Act.

   169. This allegation has no reasonable prospects as the facts as pleaded in the Statement of Claim cannot constitute a breach of section 123 of the DD Act, as Section 123 of the DD Act does not of itself impose a duty or obligation which can be breached by Respondent.  It is a provision to facilitate proof of the state of mind of a body corporate.”

1. For completeness, I also refer in full to Mr Skeen’s submissions handed up at the hearing of this application, as follows:

   “APPLICANT'S OVERVIEW OF CASE STATUS

   As it pleases the Court, I advise that I have noted firstly that in its reference to Section 17A(2) of the Federal Circuit Court of Australia Act 1999(Cth), the Respondent seems to defining itself as the FIRST PARTY, when in fact the Respondent is the second party. The Respondent points this out by quoting the section of the FCCA Act thus. Relevantly, s. 17A of the FCCA Act provides:

   17A Summary judgement

   (2) The Federal Circuit Court of Australia may give judgement for one party against another in relation to the whole or any part of a proceeding if:

   (a) the first party is defending the proceeding or that part of the proceeding; and ...........................

   As it pleases the Court, the First Party is prosecuting the proceeding and it is the Respondent that is defending.

   The 'matter' before the Court today, your Honour, is the not the proceeding as originally listed APPLICATION - Human Rights alleging unlawful discrimination under section 46PO of the Australian Human Rights Commission Act 1986 and accordingly was accepted by the Federal Circuit Court of Australia as alleged breaches of the Disability Discrimination Act 1992 (Cth) as investigated by the administrator of the Act, the AUSTRALIAN HUMAN RIGHTS COMMISSION. The matter today, your Honour, is the Respondent's Application in a Case.

   This Application in a Case was brought by the Respondent after I, as the Applicant, complied with orders by Registrar Hannigan on 14 May 2015 that the proceeding continue by way of pleadings. I, the applicant was ordered to file and serve a fully particularised Statement of Claim (SOC) – complied with; the Respondent was ordered to file and serve any Defence to the SOC – complied with; and the Applicant was given the opportunity, by way of order, any Reply to any Defence by the Respondent – complied with.

   As its pleases the Court, your Honour, on receiving, by way of service, the Respondent Application in a Case, it appeared to me at the time, that the respondent was attempting to reverse the roles. It was being implied that it was the Respondent that was the victim.

   I sought some legal advice through a 'consultation' with a pro bono lawyer supplied by Justice Connect on the Application in a Case and, I was advised that it was all about the 'fact' that I had not described my disability in my Statement of Claim.

   In my research pertaining to how the making of my Statement of Claim came about, I referred to the various ‘Instructions’ issued by the Sydney Registry of the Federal Court of Australia as to my APPLICATION – Human Rights in the Court alleging unlawful discrimination under the Australian Human Rights Commission Act 1986, and I noted a reference to Rule 41.02A(1) Federal Circuit Court Rules 2001. Not having a copy of the 'Rules' I completed the Application Form in the best way I could as a layperson. I also noted a reference to Rule 6.02 Federal Circuit Court Rules 2001 but again, I could not refer to a copy of the 'Rules’. Further on in the 'Instructions' for 'commencing an application' I noted, in paragraph 4 a reference to Part 16 of the Federal Court Rules 2011 which dealt with a need to file either a pleading by way of statement of claim or points of claim, or an affidavit setting out the evidence supporting my application; but only if the Application form is not fully completed.

   The above does, of course Your Honour, bring us back to May 14 2015 with the issue of orders by Registrar Hannigan for the completion of the Statement of Claim. In making the orders Registrar Hannigan ensured that I received a copy of Federal Court Rules 2011 Part 16 Pleadings, Division 16.1 General, 16.2 Content of pleadings - general (1) (a), (b), (c), (d), (e) and (f), and (2) (a), (b), (c), (d), (e) and (f).

   No where, Your Honour, in these 'instructions' could I find any requirement for an applicant in making either an Application (for a hearing) or in making a Statement of Claim, in a Human Rights matter, in particular one relative to an applicant's disability under the Disability Discrimination Act and on that basis, I filed and served my response to the Respondent's Application in a Case.

   I do believe, Your Honour, that it would be appropriate for me to address the Respondent's 'Reply' which I note has been given a title of Outline of Submissions.

   Your Honour, the first five paragraphs of this 'Respondent's Outline of Submissions comprise an introduction. There are references to 17A(2) of the Federal Circuit Court Act 1999 (Cth) and rule 13.10 of the Federal Circuit Court Rules 2001. The Application in a Case was filed only pursuant to r 13.10 of the 'FCCR' with no reference to s 17A(2) of the 'FCCA'.

   Paragraphs 6 to 11 deals with the power of the Court to ‘dispose by way of summary dismissal’ the proceeding. In paragraph 6. the respondent quotes the actual section 17A Summary judgement but then includes the (2) sub-section as if the 'first party' is the respondent when it is fact that the first party is the applicant. In P. 6, the respondent also refers to section of 31A of the Federal Court of Australia Act 1976 (Cth) (‘FCA Act’). Paragraphs 8 to 11. refers to particular cases, George v Fletcher and Spencer v Commonwealth.

   Well, of course Your Honour, am I, as a layperson and without any representation, expected to know all about these Federal Court Acts, Federal Court Rules, and have access to all the information as Counsel for the Respondent does?

   In paragraphs 12 to 26 under the sub heading of Background facts, the lengthy detail seems to be not a 'reply' to the Applicant's 'response to the Application in a Case' but as making an attempt at submitting further 'defence' to the Applicant's Statement of Claim.

   Paragraphs 27 to 169 also appear to be a further attempt to 'defend' the respondent against the Applicant's Statement of Claim. As stated by Counsel for the Respondent, under Background facts, the Respondent relies on upon affidavits by Ms Vivienne Young sworn 10 September 2015 ('Young Affidavit') and Mr James Morgan Stewart sworn 27 January 2016 ('Stewart Affidavit'). Relative to the 'Young Affidavit’, Your Honour will no doubt recall her own remarks in regard to the affidavit having objectionable content.

   Relative to the 'Stewart Affidavit’, all 18 pages of it, surely the Court will consider it in the same light as the Applicant. Not an affidavit in support of the Respondent's Application in a Case, but like paragraphs 27 to 169 of the Outline of Submissions by Counsel for the Respondent, one more further attempt at a defence.

   Your Honour, the Respondent appears to want to take me for a fool. It does so at its peril for I am extremely adept at picking up on anomalies both in verbal and written discourse.

   In your orders of 1 December 2015, Your Honour, both parties were 'invited’ in this matter before the Court today, namely the Respondent's Application in a Case, to “file and serve any evidence by way of affidavit and any submissions."

   My filing and serving related mainly to the main thrust of the Application in a Case - that I failed to describe the relative disability. I submitted that there was no requirement for me to do so. In the 'reply', I cannot find anywhere where the Respondent is saying “Oh yes, you do.” I do have to ask the Court to consider whether I got it right or if I got it wrong because it does not appear that the Respondent is able to decide.

   However, Your Honour, there appears to be a glimmer of truth beginning to appear whereby the Respondent seems to acknowledge the possibility that my allegations, particularly my reference to breaches of Sections 5 and 6 of the Disability Discrimination Act ('DDA'), based on ‘reasonable adjustment’ could apply, depending on whether the Court believes the 'version' of the Applicant or the version of the Respondent as now, over two years after the occurrences, we are able to read words (P. 11 of 'Stewart Affidavit' ......... If the person buying a ticket (for the Christmas Function), had any special dietary requirements, they were required to contact the Club (Applicant's note: that would be via the Eventsfifty5 section of the Club) to make arrangements with the Respondent's staff to pre-order their meals. The Respondent's staff were trained not to enquire about the reasons behind a person's dietary requirements..........

   Paragraph 32. of the Respondent's Outline of submissions, as a further 'defence' to the allegations in the Applicant's Statement of Claim that the Respondent did make reasonable adjustment, the words “in respect to the pleadings relating to the absence of 'gluten-free gravy’, (note to the Court: it was a case of no gravy at all when the request was for the serving of gluten-free gravy instead of gravy containing gluten), it is apparent that section 24 of the DD Act could potentially have application to the circumstances of the applicant's claim” are indicative of a success of the allegations of breaches of sections 5 and 6 being dependent on the Respondent being able to prove, without any doubt, that the Applicant did not specifically order a meal that was to be reasonably adjusted by the replacement of gravy containing gluten with gravy not containing gluten.

   The Respondent has been unable, right from the start of the proceeding, to present any substantial form of evidence.

   I repeat Your Honour, that I believe I have good prospects of successfully prosecuting my claim and that it ought to be determined that the proceedings are not frivolous or vexatious.

   I submit my Overview of Case Status to the Court.”

   (Errors in original.)

2. For all the reasons referred to by the Club in its written submissions cited in paragraph 23 above, I accept and adopt in their entirety the accuracy of those submissions as to the lack of prospect of success of Mr Skeen’s proceeding against the Club as disclosed in the Statement of Claim which should, otherwise, be struck out.  

3. I am satisfied that Mr Skeen has pursued a frivolous claim that has no, or no reasonable, prospect of success. Moreover, Mr Skeen has no more than a fanciful prospect of success, even if Mr Skeen’s version of events was to be accepted.

4. The Club did not contend that Mr Skeen’s proceeding is an abuse of the Court’s process or that his claim is vexatious. On that basis, I have considered only the Club’s contentions that Mr Skeen’s proceeding has no reasonable prospect of success and is frivolous.  

5. Accordingly, in all the circumstances, and having regard to the overall interests of justice, I am satisfied that the proceeding before this Court, commenced by way of application filed on 9 April 2015, should be summarily dismissed pursuant to r.13.10 of the Rules.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:    23 February 2016