Smith v Sanreef Pty Ltd - [2020] QCAT 353

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Smith v Sanreef Pty Ltd & Ors [2020] QCAT 353

PARTIES: WADE SMITH

(applicant)

v

SANREEF PTY LTD
(first respondent)

and

CHARNAI DRAPER
(second respondent)

and

HEIGHTENED SECURITY SOLUTIONS PTY LTD
(third respondent)

and

PETER LAMBOURNE
(fourth respondent)

APPLICATION NO/S:

ADL031-19

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

17 June 2020

HEARING DATE:

1 April 2020

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

The complaint referred to the tribunal is dismissed.

CATCHWORDS:
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – RACIAL DISCRIMINATION – PROVISION OF GOODS AND SERVICES – where complainant alleges that he was treated less favourably on the basis of race – whether the complaint is made out

Anti-Discrimination Act 1991 (Qld), s 10, s 45, s 124A

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondents:
Sanreef Pty Ltd and Charnai Draper: Nikki A-Khavari (counsel) instructed by Thynne Macartney, solicitors

Heightened Security Solutions Pty Ltd: self-represented

Peter Lambourne: no appearance

REASONS FOR DECISION

Wade Smith, who is an Aboriginal man, made a complaint that he had been subjected to direct discrimination on the basis of race and subjected to racial vilification in an incident on 13 April 2018 at the Hambledon Hotel in Aratula. The complaint was made to the Anti-Discrimination Commissioner Queensland (ADCQ),[1] and was referred to the tribunal on 11 June 2019.
[1]Now the Queensland Human Rights Commissioner.
Mr Smith says that when he attended the hotel with his wife that evening, he was treated less favourably than a person without the attribute of race would have been treated in the same or not materially different circumstances[2] in the following ways:
(a)his wife was falsely accused by a bartender, Charnai Draper, of failing to pay for some drinks, because in fact his wife had paid for them;
(b)when he went to the bar and gave Ms Draper a winning raffle ticket to collect a meat tray, Ms Draper grabbed the ticket and threw it away saying ‘fuck the meat tray you black cunt’;[3]
(c)Peter Lambourne (a security guard) made a false accusation to the police that Mr Smith had assaulted him, and this resulted in Mr Smith being arrested by the police and being kept in custody overnight;
(d)the next day he was banned by the manager of the hotel from attending the hotel for six months.
[2]And so was directly discriminated against on the basis of the attribute of race under section 10 of the Anti-Discrimination Act 1991 (Qld), in contravention of the goods and services area in Division 4 of the Act.
[3]Although Mr Smith does not specify in his complaint or in his contentions who is alleged to have said this to him, he confirmed at the hearing that it was Ms Draper.
The complaint in (b) was also said to be racial vilification.[4]
[4]Contrary to section 124A of the Anti-Discrimination Act 1991 (Qld).
In recent submissions,[5] the first and second respondents suggest that Mr Smith also complains that he was treated less favourably on the grounds of race by the fact that he did not receive an apology for the false accusation in (a). It is not my understanding that this is a complaint before the tribunal. It was not something complained of to the ADCQ and therefore was not part of the referral to the tribunal. There was a reference to the lack of an apology in Mr Smith’s contentions but the contentions on liability were not properly separated from the contentions on remedy so it was unclear whether Mr Smith sought to add the allegation about a lack of an apology. This was not clarified prior to the hearing. Because of the uncertainty about exactly what was before the tribunal, at the commencement of the hearing I went through the allegations with Mr Smith to make sure that everybody understood and agreed what was before the tribunal. He did not say that the fact that he did not receive an apology for the false accusation in (a) was one of his complaints of less favourable treatment on the grounds of race. Had he raised this, he would have needed to apply to amend the complaint under section 178 of the Anti-Discrimination Act 1991 (Qld).
[5]29 April 2020.
In order to determine this matter I heard from Mr Smith and from three people who were working in the bar that evening, two of whom were duty managers, and one of whom was Ms Draper, and I also heard from the manager of the hotel. I read the police report provided by the police who attended that evening, and I viewed footage from various cameras in the hotel’s CCTV system.
The hearing was conducted entirely on the telephone with no physical attendance, but I am satisfied that there was a fair hearing, and that I have been able to reach a clear conclusion on the evidence.
As for the CCTV footage, this was in the possession of the police and the first and second respondents made an application to the tribunal quite close to the hearing for its disclosure. Because of the lateness of the application, the footage was provided to the tribunal only in the afternoon of the day before the hearing. By the time of the hearing, neither side had viewed the footage and technically it was not possible to arrange it that both sides could view it simultaneously at the hearing. Therefore the hearing proceeded, with directions made for both sides to view the footage after the hearing and to make written submissions about it.[6] Unfortunately Mr Smith was unable to view the footage despite all reasonable efforts made to achieve this. Having regard to these technical problems Mr Smith informed the case manager that he did not need to view the footage. At the hearing he expressed a strong wish for me to view the footage because he said it would support his version of events. I have taken the view that I should view the footage having regard to both sides’ desire that I should do so. As for the submissions on the footage, at the hearing Mr Smith provided me with his oral submissions about the footage and has not given written submissions about it in response to the written submissions of the first and second respondents despite being given more time to do so. I presume he does not wish to do so. Overall, I am satisfied that it is fair to view the footage and accept the submissions about it.
[6]Mr Smith confirmed that he would be able to view the footage if it were supplied to him by DVD.
Having regard to the evidence which I heard and read, and on my viewing of the CCTV footage, my findings on the complaint are as follows.
The factual basis for complaint (a) is correct. What happened was that Ms Draper served Mr Smith’s wife with drinks at the bar. While Ms Draper was waiting for her to pay for the drinks, she turned to collect empty glasses from the bar. A little later she realised she had not received money for the drinks. Unknown to her, in the meantime Mr Smith’s wife had paid a different bartender for the drinks. When Mr Smith came up to the bar a little later, Ms Draper said to him that his wife had not paid for the drinks purchased earlier. Ms Draper went to the table where Mr Smith and his wife were sitting and repeated the allegation. Mr Smith and his wife explained that the payment had been made to the other bartender. Ms Draper then confirmed this with the other bartender.
The question is whether, in circumstances that are the same or not materially different, Ms Draper would have made the same accusation if Mr Smith, or his wife, did not have the attribute of race. In other words, would Ms Draper have treated a white man or woman in the same way?
Having heard Ms Draper give evidence I am quite sure she would have treated a white man or woman the same way given the same circumstances. There is nothing that makes me begin to think that her reaction that day was influenced in any way by race. Indeed, Mr Smith himself, when cross-examining Ms Draper, accepted that what happened was simply a mistake and unconnected with race. He did not withdraw this complaint however.
In the circumstances this is not direct discrimination within section 10 of the Anti-Discrimination Act 1991 (Qld).
Turning to (b), the context is that one of the duty managers requested security to remove Mr Smith and his wife from the premises. The reason for this is in dispute. Mr Smith says that it was because the duty manager was of the erroneous belief that Mr Smith’s wife had not paid for some drinks and informed security about this. He says that he was told by security to leave the premises ‘because you did not pay for your drinks’. The duty manager says that it was because Mr Smith and his wife had become argumentative and aggressive when discussing with staff the issue about the allegedly unpaid drinks.
There is no help from the footage one way or the other because it starts after the alleged argumentative and aggressive behaviour. However, the weight of evidence supports the first and second respondents’ case. There is direct evidence of the argumentative and aggressive behaviour from the duty manager concerned and from Ms Draper. This is corroborated by the later behaviour of the couple which can be seen on the footage, particularly the behaviour of Mr Smith’s wife.[7] Ms Draper says, and I accept, that the issue about the drinks was resolved quite quickly. If Mr Smith is right and it was still an issue, then the obvious solution was for the duty manager to ask for payment rather than eviction from the premises. Instead, it is clear from the evidence and the footage that both Mr Smith and his wife had had a considerable amount to drink, and in fact were drunk, which adds credence to the duty manager’s explanation for the decision.
[7]In particular, as Mr Smith’s wife exits the building she pushes an elderly woman out of the way who was in her path.
As a result of the need to evict Mr Smith and his wife from the premises, the security guards and one other patron spent many minutes trying to cajole Mr Smith and his wife from the premises, but they remained argumentative and unwilling to leave. At some point during this process Mr Smith produced a piece of paper, which on the balance of probabilities was the winning raffle ticket. He gave this to one of the security guards who took it over to the bar and gave it to the bartender. Mr Smith followed with the other security guard. The bartender took the piece of paper, there was a discussion and the bartender took the paper away. Since there is no audio on the footage it is possible that, during the discussion, the bartender said the racist remark to Mr Smith as alleged. However Mr Smith’s case is that he gave the bartender the ticket and the bartender grabbed it and threw it away. All three things here are incorrect. It can be seen from the footage that it was the security guard and not Mr Smith who gave the ticket to the bartender, also the bartender did not grab it. Nor it seems, did the bartender throw it away: Mr Smith gave evidence at the hearing that his son picked up the meat tray the following day. He was able to pick up the meat tray without having the ticket, which tends to suggest that it was kept aside.
The allegation is that it was Ms Draper who was the bartender concerned, but she denies having said the words. Having heard from Ms Draper I do not think that she would say these words and I accept her denial. Mr Smith witnessed a lot happening that evening and he had had a lot to drink. It seems to me there is plenty of scope there for incorrect recollection of events, misunderstanding or mishearing. In that respect there was a good 20 or 30 minutes after incident (b) when Mr Smith remained either on the premises or just outside the building and able to speak to hotel staff yet he made no complaint to any of the staff about the racist remark. He was interviewed by the police but made no complaint to them about the remark either, although he did complain that the staff at the hotel were racist because of the accusation about not paying for drinks. The next day when he spoke to the manager of the hotel he complained about being falsely accused about not paying for drinks, and received an apology. But again he did not complain about the remark. This failure to complain about the remark soon afterwards tends to show that it did not happen.
On my finding therefore, there was no such racist remark. In the circumstances this is not direct discrimination within section 10 of the Anti-Discrimination Act 1991 (Qld) and it is not racial vilification.
As for (c), again it is my finding that this did not happen. It can be seen from the police report that Mr Lambourne did not accuse Mr Smith of assaulting him. Indeed it can be seen from the police report that Mr Smith was not arrested for assault, but was arrested for disorderly behaviour in licensed premises.
As for (d) it is correct that Mr Smith was banned from attending the hotel for six months. I was told by the hotel manager and accept, that it is his policy always to ban a patron from attending the hotel for at least six months when police are called. He gave evidence about white persons being banned for that period of time or longer. Again I am quite sure from this evidence that the decision to ban Mr Smith and the length of the ban was not influenced by race.
In the circumstances the complaint fails and is dismissed.