Star City Pty Ltd v Hurst (EOD)

[2009] NSWADTAP 35

Appeal Panel - Internal

CITATION:	Star City Pty Ltd v Hurst (EOD) [2009] NSWADTAP 35
PARTIES:	APPELLANT Star City Pty Ltd RESPONDENT Paul Hurst
FILE NUMBER:	099021
HEARING DATES:	26 May 2009
SUBMISSIONS CLOSED:	26 May 2009
DATE OF DECISION:	4 June 2009
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Equal Opportunity – Complaint of Unlawful Transgender Discrimination – Refusal by Tribunal of Application for Summary Dismissal – Interlocutory Appeal – Leave Required – Nature of Appellate Discretion – Leave Refused – Anti-Discrimination Act 1977, s 102 - Administrative Decisions Tribunal Act 1997, s 113(2A)
DECISION UNDER APPEAL:	Hurst v Star City Pty Ltd [2009] NSWADT 65
FILE NUMBER UNDER APPEAL:	081040
DATE OF DECISION UNDER APPEAL:	03/26/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Allianz Australia Insurance Limited v Crazzi and Others [2006] NSWSC 1090 Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 Associated Provisional Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 Forrester v AIMS Corporation [2004] VSC 506 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Harrison v Melham [2008] NSWCA 67 House v The King (1936) 55 CLR 499 Hurst v Star City Pty Ltd [2009] NSWADT 65 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42 Paramasivam v Vice Chancellor, University of New South Wales [2003] NSWADTAP 2 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Rana v Human Rights & Equal Opportunity Commission [1999] FCA 264 Somerset Marine Inc & Ors v New Cap Reinsurance Corporation Ltd (In Liq) & Anor [2003] NSWCA 338 Stanborough v Woolworths Ltd [2005] NSWADT 203 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Waters v Public Transport Commission (1991) 173 CLR 349
REPRESENTATION:	APPELLANT K Eastman of counsel / Mallesons Stephen Jacques RESPONDENT M Tibbey of counsel / Legal Aid Commission
ORDERS:	Leave to appeal refused

1 The Anti-Discrimination Act 1977 (the AD Act) gives the Tribunal power to dismiss a complaint in whole or in part at any stage of the proceedings: where it is frivolous, vexatious, misconceived or lacking in substance; where the conduct if proven would not disclose a contravention of the Act; or if it is satisfied that no further action should be taken in respect of the complaint: s 102, s 92(1).

2 The Tribunal has dismissed an application for summary dismissal of a complaint. The applicant for summary dismissal has lodged an appeal against that decision. Such an appeal may only proceed with the leave of the Appeal Panel. This decision deals with the leave application.

3 The appellant is Star City Pty Ltd, which operates a casino and general entertainment venue at Darling Harbour. The complainant and respondent to the appeal is Mr Paul Hurst. Mr Hurst’s complaint, as limited by the Tribunal in the decision under appeal, is that Star City unlawfully discriminated against him in the provision of services, by refusing him entry to its premises on the night of 1 November 2006 because it thought of him as a transgender person.

4 The complaint was referred to the Tribunal on 15 April 2008. There was a case conference. Mr Hurst filed an affidavit as to the events on 4 July 2008. He gives an account in that affidavit of his history of attendance at functions at the casino complex dressed in female attire, and states that he is known among his friends as ‘Anne Maree’. Mr Hurst’s case is that he went to Star City on the night of 1 November 2006 with a male friend. Mr Hurst was dressed in female attire. He was refused entry. He says that the security guard gave as the reason for refusal: ‘You are known here as a man. You are not dressed appropriately and I will have to ask you to leave’. He says that he was removed from the premises in a way that he found humiliating and stressful.

5 He disputes the version of his attire given by Star City in its reply to the Anti-Discrimination Board. In his view, his attire was appropriate and was not unacceptable in that it was too revealing. He said that he had attended the casino regularly since the night of 1 November 2006 but felt too humiliated now to wear female attire.

6 Mr Hurst’s legal representative filed points of claim on 22 July 2008, and referred to s 38M of the AD Act. They included the following paragraphs:

7. The security guard in ordering the applicant to leave treated the applicant less favourably than they treated a man who was not in female attire in the same circumstances or in circumstances not materially different.

8. This means that the applicant has contravened the provisions of Section 38M of the Anti-Discrimination Act 1977.

7 Section 38M provides:

‘ 38M Provision of goods and services

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on transgender grounds:

(a) by refusing to provide the person with those goods or services,

or

(b) in the terms on which the other person is provided with those goods or services.’

8 What constitutes ‘transgender grounds’ is set out in s 38B:

‘ 38B What constitutes discrimination on transgender grounds

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on transgender grounds if, on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances (or in circumstances which are not materially different) the perpetrator treats or would treat a person who he or she did not think was a transgender person or who does not have such a relative or associate who he or she did not think was a transgender person, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not transgender persons, or who do not have a relative or associate who is a transgender person, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply, or

(c) treats the aggrieved person, being a recognised transgender person, as being of the person’s former sex or requires the aggrieved person, being a recognised transgender person, to comply with a requirement or condition with which a substantially higher proportion of persons of the person’s former sex comply or are able to comply, being a requirement or condition which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

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

9 The meaning of ‘transgender’ is dealt with by s 38A which provides:

‘ 38A Interpretation

A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or

(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.’

10 The ground of transgender discrimination was added to the AD Act in June 1996, and commenced operation on 1 November 1996: see Second Reading Speech (1 May 1996), Transgender (Anti-Discrimination and Other Acts Amendment) Bill, Legislative Assembly, Hansard, p 643. The intention was to deal with discrimination experienced by persons of transgender or transsexual status by way of a single ground. The Government stated: ‘The term ‘transgender’ in the legislation has … been used to refer to all transgender persons, regardless of whether they have undergone surgical intervention.’

11 Further, the Government stated: ‘This definition is not intended to cover persons who cross-dress or who have adopted the characteristics of the other sex, say, for example, a male person who from time to time wears makeup, or high heels, who has not chosen to live as a member of the other sex.’

12 Star City’s application made 22 July 2008 commenced with counsel’s account of Star City’s version of the events on the evening of 1 November 2006. This was in line with the account given in letters to the Anti-Discrimination Board from Star City’s solicitors (included in the referral report). In essence, its position is that Mr Hurst’s attire was not suitable to allow entry to the casino gaming floor area of the complex. Star City was simply enforcing a reasonable dress code.

13 The submissions then referred to the principles relating to summary dismissal of actions. It acknowledged that summary dismissal is a power to be exercised with caution.

14 Subsequently, Mr Hurst filed submissions in reply to the application (31 October), Star City filed submissions in reply to those submissions (7 November) and Mr Hurst filed Amended Points of Claim. The summary dismissal application was heard on 12 November 2008. The Tribunal delivered its decision on 26 March 2009, and an amended decision on 24 April 2009. See Hurst v Star City Pty Ltd [2009] NSWADT 65.

15 The Tribunal ruled that Mr Hurst could not, on the evidence he had presented (there was no medical or psychological evidence of gender dysphoria), make a claim that invoked the primary meaning of transgender person under categories (a), (b) and (c) of the definition in s 38A.

16 However, it was not satisfied that his case was so hopeless as to warrant summary dismissal in relation to the extended meaning. There was evidence that might, if accepted, allow a finding to be made that he was ‘thought of’ as a transgender person, the evidence being the statement Mr Hurst said the security guard made to him. This approach is consistent with the approach taken by the Tribunal in the past. See, for example, Stanborough v Woolworths Ltd [2005] NSWADT 203 where the Tribunal said:

‘28 In the absence of extraordinary circumstances disputed questions of fact should not be resolved in a summary dismissal application. Where there is factual dispute the applicant’s version of the facts should be accepted for the purpose of determining whether the complaint should be summarily dismissed. Consequently, we must proceed on the basis that everything which the applicant has put in evidence is true (see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]). There is, however, a distinction between evidence advanced by the applicant and the conclusions which the applicant suggests can be reasonably drawn from that evidence. We are under no obligation in a summary dismissal application to accept, without question, the applicant’s assertions about a conclusion which may be drawn from the evidence. The Tribunal may reach its own conclusions about that which may be drawn from the evidence.’

17 Star City, in its application for leave, reiterates its submission that Mr Hurst’s evidence, at its best, would only lead to a finding that he is a transvestite, i.e. a person whose gender identity is unchanged (he is male), but he derives pleasure from dressing in the manner and style of the opposite gender (female). In its view, at most the evidence could only reasonably give rise to the conclusion that he is a cross dresser.

The Appeal

18 As the decision under appeal is an interlocutory one, the appellant requires leave to proceed: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2A). This decision deals with the application for leave to appeal. The application has been heard by an Appeal Panel constituted by a presidential member sitting alone: see ADT Act, ss 24A(1)(h), 113(2B).

Amended Application and Notice of Appeal

19 The Amended Application for Leave to Appeal recites the following ground for the grant of leave:

- The finding in para [33] was an error of law because there was no evidence or other material to justify the making of ‘the finding decision’ [sic] that Mr Hurst was thought to be a transgender person. – The finding was unreasonable and irrational within the meaning of Associated Provisional Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223.

20 The Amended Notice of Appeal recites the following errors of law (with (a) deleted):

‘(b) there was no evidence or other material to justify the decision that the Respondent was thought to be a transgender person: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-222; and

(c) having corrected the factual error made in the reasons published on 26 March 2009 and failing to dismiss the complaint, the decision was unreasonable and irrational: Associated Provisional Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223; and

(d) the Tribunal erred with respect to the proper construction of s 38A of the Anti-Discrimination Act 1977 (NSW) with respect to the phrase ‘a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person’.’

21 The alleged errors of law are followed by a statement of ‘Particulars’.

22 The ‘factual error’ to which ground (c) above refers, concerns the text of para [33] of the reasons. In the original version of the decision published 26 March 2009, it read:

‘33 The only evidence about what the security officer thought, is Mr Hurst’s claim that he said, ‘You are known here as a woman. You are not dressed appropriately and I will have to ask you to leave’ and the following account given by the Casino’s solicitors to the Anti-Discrimination Board (Tab 3 of the President’s Report):

Mr Hurst asked if the reason the Officer had requested he leave was “because I am a transvestite”. The Officer said no and reiterated it was because Mr Hurst’s attire was inappropriate.’

23 In the amended version of the reasons published 24 April 2009, the word ‘woman’ was replaced by ‘man’.

24 The slip was an obvious one. Star City’s legal representatives wrote to the Tribunal on 8 April 2009 asking for a correction. As the request had not been dealt with by the due date for filing any appeal, they proceeded to file their original notice of appeal, and leave application, on 23 April 2009, and, in my view, somewhat disingenuously, included appeal grounds which treated the slip as representing a finding of the Tribunal. Moreover they requested, in the letter of 8 April 2009, that the Tribunal revisit the reasoning in paragraphs [34] and [35] in light of its slip, as if to suggest somehow the slip infected those reasons.

25 In my view, this request, inviting the Tribunal to make substantive alterations to its text, was inappropriate. While the Tribunal has power to amend a slip (ADT Act, s 87), its power to reopen its decision is a limited one: see further, Allianz Australia Insurance Limited v Crazzi and Others [2006] NSWSC 1090 per Johnson J at [117]; see also, the commentary in Ritchie’s Uniform Civil Procedure at [36.17.5]. The Tribunal issued the amended text on 24 April 2009, leading to the amended notice of appeal and amended leave application to which I have referred.

Reasons

26 The Tribunal said relevantly to the present appeal:

‘26 … [C]an it be said that Mr Hurst is, or has been living as a woman or is seeking to do so? There is no evidence that Mr Hurst presents to his family, friends, employer and/or neighbours as a woman. The only evidence about how he is perceived by others is that some friends know him by a female name. Little is known about his lifestyle other than that on occasion he dresses in female attire. There is no evidence about Mr Hurst’s perception of his gender identity.

27 I accept the argument put for Mr Hurst that to meet the statutory definition he is not required to establish that he lives as a woman ‘full-time’. He need only establish that he has taken some steps, however small, to seek to ‘live’ as a woman. The evidence, however, in my view, would not support a finding that he has been or is living as a woman on any basis or is seeking to do so. At its highest, it indicates that some of his friends know Mr Hurst, some of the time by a female name and that he dresses in female attire on occasion. It may be that Mr Hurst is in fact a transgender person but on the evidence before me he does not satisfy the statutory definition.

28 The above finding is not fatal to Mr Hurst’s complaint providing that there is some evidence, which, if accepted, would establish that the alleged perpetrator, in this case, the security officer who is alleged to have refused Mr Hurst entry to the Casino, thought that he was a transgender person. Section 38A defines a transgender person to include ‘a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person’.

…

30 In the Summary of Complaint prepared by Deputy President Hennessey following the first case conference in these proceedings, the legal and factual issues were identified as including the question:

Whether the security guard thought Mr Hurst was a transgender person as defined in s 38A (as distinct from a transvestite or merely a man dressed in woman’s clothing)

31 In oral submissions, Counsel for Mr Hurst made passing mention to the application of this part of the definition. The focus of her submissions was the meaning of the phrase, ‘living as a member of the opposite sex’. The written submissions barely touched on the application of s 38A. The Points of Claim did not mention the statutory definition and the Amended Points of Claim did not identify which part of the definition was relied on.

32 I have given careful thought to whether in these circumstances it is open to me to consider whether Mr Hurst can rely on the extended definition of a transgender person and decided that it can be for these reasons. First, the onus falls on the Casino to establish that the Complaint should be dismissed on one of the grounds set out in s 102; second, the issue was squarely raised in the Tribunal’s summary of the Complaint; and third, the issue has been addressed, albeit briefly, in the Casino’s submissions.

33 The only evidence about what the security officer thought, is Mr Hurst’s claim that he said, ‘You are known here as a man. You are not dressed appropriately and I will have to ask you to leave’ and the following account given by the Casino’s solicitors to the Anti-Discrimination Board (Tab 3 of the President’s Report):

Mr Hurst asked if the reason the Officer had requested he leave was “because I am a transvestite”. The Officer said no and reiterated it was because Mr Hurst’s attire was inappropriate.

34 This suggests that the officer accepted that Mr Hurst was a ‘transvestite’. Without hearing his evidence, the Tribunal cannot know whether the officer thought Mr Hurst was living or seeking to live as a woman or merely dressed as a woman or, what he understood by the term ‘transvestite’.

35 It is apparent that the security officer’s evidence is critical. In my view it would be premature to dismiss the complaint summarily before that evidence has been provided and tested.’

27 In Somerset Marine Inc & Ors v New Cap Reinsurance Corporation Ltd (In Liq) & Anor [2003] NSWCA 338, the Court refused leave to appeal against a decision made by the judge at first instance dismissing a summary dismissal application. Such a decision is a discretionary decision. The Court referred to the cases of House v The King (1936) 55 CLR 499 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. The Court stated (per Hodgson JA, Meagher JA agreeing) at [28]:

‘If leave is granted, the Court will have to decide first whether the primary judge’s decision is reviewable having regard to the principles in House v The King and General Steel , the claimants application for summary dismissal of the opponents’ proceedings should be granted. In my opinion, for the reasons I have given, it is unlikely that the Court of Appeal would consider the primary judge’s decision reviewable on the principles in House v The King , and, even if it did, it is unlikely that it would decide in favour of summary dismissal having regard to the principles in General Steel .’

28 The question for me at this stage therefore is whether an Appeal Panel would consider the primary tribunal’s decision reviewable on the principles in House v The King and, even if it did, would it be likely to decide in favour of summary dismissal having regard to the principles in General Steel. House v The King provides the ‘orthodox analysis’ or ‘orthodox approach’ in relation to the circumstances in which there may be appellate intervention into the exercise of a discretion by a trial judge: see Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42 (Macedonian Orthodox Church) per Gummow ACJ, Kirby, Hayne and Heydon JJ at [25] and [137].

29 Reading the Amended Application for Leave and the Amended Notice of Appeal together, it appears to rely upon the following grounds from the well known statement in House v The King per Dixon, Evatt and McTiernan JJ at 505-506: (i) judge acts on wrong principle; (ii) judge mistakes the facts, and (iii) the result is unreasonable or plainly unjust.

30 In Macedonian Orthodox Church, Gummow ACJ, Kirby, Hayne and Heydon JJ noted further at [138]:

‘The question is what the particular statute or rule of law conferring the discretion contemplates as relevant or irrelevant factors. If it mandates that particular weight be given to one factor, that mandate must be obeyed. But, in the absence of any such mandate, the question of what weight the relevant factors should be given or what balance should be struck among them is for the person on whom the discretion is conferred, provided no error of law is made, no error of fact is made, all material considerations are taken into account and no irrelevant considerations are taken into account, subject to the possibility of appellate intervention if there is a plain injustice suggesting the existence of one of the four errors just described even though its nature may not be discoverable, or if there is present what has come to be known as " Wednesbury unreasonableness [ Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223].’

31 In my view there is no tenable case to be advanced based on ‘mistake of facts’. It was plain that the Tribunal had made a slip in its original text of para [33] of its reasons. Throughout the history of this complaint, starting at the Anti-Discrimination Board in 2007, Mr Hurst has consistently given as his version of the interchange that the security guard said ‘You are known here as a man …’ (et cetera). It was an obvious slip, and was, belatedly, corrected.

32 In General Steel at 129-130 ([8]-[10]), Barwick CJ (sitting in the original jurisdiction of the High Court) reviewed the authorities on summary dismissal. He said:

‘8. … It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action – if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal – is clearly demonstrated. …

9. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so to speak apparent at a glance”. (at p129)

33 Barwick CJ cited with approval the following statement of Dixon J (as he then was) in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91:

‘A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.’

34 Finally, he said:

‘10. … On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. (at p130)’

35 The Chief Justice went on to dismiss the plaintiff’s application.

Assessment

36 Star City’s key submission is that even allowing for the requirement that the complainant’s case is to be treated ‘at its highest’, that case does not engage the final clause of s 38A of the AD Act (imputed or ‘thought of’ transgender status). To use the language of pleadings employed by Barwick CJ in his statement in General Steel, the submission being put, in essence, is that the complainant lacks a cause of action.

37 As is to be expected, the statements made in the higher courts relating to strike-out applications refer to the matters asserted in the pleading and ask whether, if proven, they would found a cause of action. This is not a pleadings jurisdiction, though like procedures are used – such as filing of points of claim and points of defence.

38 The provisions of the ADT Act (which apply to proceedings under the AD Act, subject to any inconsistency with specific provisions of the AD Act: see AD Act, s 116) permit the Tribunal to inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice, and permit the Tribunal to act with as little formality as the circumstances of the case permits (ADT Act, s 73). These are, in my view, statutory indications that militate against summary dismissal of claims even further than the cautions sounded in the courts of pleadings and in cases such as General Steel.

39 It may be that the appropriate standard in anti-discrimination matters was best expressed by Sir Ronald Wilson in Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 at p 78,900 where he said referring to a Commonwealth provision equivalent to s 102 of the AD Act and in substantially the same terms:

‘A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance.

On the other hand, a different criterion was suggested by my colleague, Commissioner Moss, in a sex discrimination case in which the Reasons for Decision were delivered on 26 September 1990. The Commissioner said:

"I should not exercise the power of summary dismissal contained in s.79 (identical to s.25X) in this matter unless it is clear that the complainant has no reasonable prospect of success."

With respect, I wonder if this test does not raise the threshold too high. It is possible that a complainant's case will exhibit substance, notwithstanding that the ultimate outcome remains clouded in doubt. Bearing in mind that the power to dismiss a complaint summarily may be exercised at any stage of an inquiry, I believe it may be inappropriate in some cases to relate the criterion of "lack of substance" to the complainant's prospects of success at all. It may sometimes be sufficient, once the complainant has had every opportunity to identify the subject matter of the complaint and produce all available evidence in support, simply to ask the question whether there is anything of substance which requires an answer from the respondent. Even this brief discussion serves to confirm me in the belief that it is unwise to postulate any rules intended to guide the exercise of the power in question. That exercise must be governed by the words of the statute itself in the context of the particular circumstances of the case.

I find it consistent with the pastorally sensitive and conciliatory purpose of the Act to interpret the power of summary dismissal conferred by s.25X as reflecting the intention of the legislature that it is in the public interest, as well as in the interests of both parties, that the hearing of a complaint which is clearly shown to be lacking in substance should be summarily terminated. Certainly, it is no kindness to a complainant to shrink from the exercise of the power conferred by s.25X of the Act in circumstances where that exercise is clearly warranted.’

40 Sir Ronald Wilson’s test was approved in Rana v Human Rights & Equal Opportunity Commission [1999] FCA 264 (Fed Ct FC). For an illustration of a case where summary dismissal was upheld, see Paramasivam v Vice Chancellor, University of New South Wales [2003] NSWADTAP 2. The Victorian Courts have attached some significance to the fact that the principal statements on this subject in General Steel and Dey and like cases arise in the context of rules regulating the pre-trial environment. On the other hand provisions such as those under notice in this appeal and by Sir Ronald Wilson allow for the strike out application to be made at any stage of the proceedings including at trial. See further, State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 (CA) per Ormiston J at 108; Forrester v AIMS Corporation [2004] VSC 506 per Kaye J at [17]-[25].

41 As Star City pointed out in its submissions, even with the mistake corrected, there are some difficulties in understanding the next part of the Tribunal’s reasons. Paras [33] and [34] do not appear to fit together. In para [33] (as amended) the guard’s statement (‘You are known here as a man’ (et cetera)) is recited, and Star City’s version of the exchange that the guard had said ‘no’ when Mr Hurst, according to Star City’s account, had asked was he being asked to leave ‘because I am a transvestite’.

42 I accept that it is difficult to reconcile the contents of para [33] and the preceding paragraphs with the statement at sentence one of para [34]. But Star City has, in its representations to the Board and its submissions to the Tribunal below and this Appeal Panel, consistently pressed the case that Mr Hurst is merely a transvestite, and the AD Act’s transgender provisions do not extend protection to transvestites (or cross dressers). The substantial point being made by the Tribunal in para [34] is that it is not possible for it to reach a definitive conclusion on whether Mr Hurst is merely to be regarded as an (unprotected) cross dresser or the circumstances are such that he is to be regarded as having been treated as a transgender person. In my view, the non-sequitur found in sentence one of para [34] is not sufficient to warrant the grant of leave.

43 While I recognise that the Tribunal is not a court of pleadings, and it is socially important that the bringing of anti-discrimination complaints not be unduly impeded, I do not endorse the stance that may be seen as reflected in the opening words of sentence two of para [34] [‘Without hearing his evidence’] and sentence one of para [35] [‘It is apparent that the security officer’s evidence is critical.’].

44 At the point of a summary dismissal application, the focus should be on the particulars asserted by the complainant or plaintiff, and any proposed evidence that is to hand. I am not inclined to adopt the stance reflected in the above passages.

45 I agree to this extent with Star City’s position. It should not be put to the trouble and expense of producing evidence in defence if there is no evidence from the complainant sufficient to warrant the case remaining on foot. This is an interlocutory decision of a significant kind. See further Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 at [8].

46 I note that the submissions for Mr Hurst also recognise that the Tribunal may have overstated the degree of importance to the resolution of the case of the security guard’s evidence. There is an issue as to whether the question of what a person is thought to be is to be approached by reference to an objective examination of all the circumstances or is merely to be determined by reference to the subjective understanding of the person who took the action which is said to have been unlawfully discriminatory. Mr Hurst’s submissions refer to the High Court’s decision in Waters v Public Transport Commission (1991) 173 CLR 349.

47 One of the constructions that could, possibly, be put on the security guard’s comment, as reported by Mr Hurst, is that Star City did not admit persons perceived to be of one gender who dressed in the manner and style of the opposite gender. While this behaviour is characteristic of transvestites, drag queens and some services provided by prostitutes, the difficulty is that it is also characteristic of persons who are transgender. The Second Reading Speech sought to draw a neat distinction between mere cross dressers and transgender persons. While Star City’s submissions have given considerable emphasis to this material, care must be taken in giving any weight to what is said in extrinsic materials when determining the meaning of words actually used in statutes: see, generally, Harrison v Melham [2008] NSWCA 67 per Spigelman CJ at [12], [14], [16] and Mason P at [160]-[168].

48 Mr Hurst describes himself as homosexual or gay. He refers to a regular practice of cross dressing. He does not have any professional expert evidence supporting gender dysphoria. Here all we know of what the security guard might have been ‘thinking’ about Mr Hurst’s sexual identity, on Mr Hurst’s version, is that ‘You are known here as a man. You are not dressed appropriately and I will have to ask you to leave’.

49 The words used by the security guard, and the circumstances more generally, might point to the refusal being grounded on such considerations as: ‘a man should be dressed as a man’, ‘we do not admit men wearing female attire’, or ‘persons whose gender is male may not be admitted if they present themselves as female persons’.

50 The last interpretation may, in turn, infer arguably that the alleged perpetrator does not admit persons who have recast their sexual identity to that of a woman. If the last interpretation is adopted, then that interpretation might lay open for consideration the question of whether the person was assumed to belong to a group of persons that includes transgender and transsexual persons, and that such persons are not to be tolerated, at least so far as entry to the gaming floor was concerned.

51 Moreover, I doubt whether a member of the community who makes a statement that refers to cross dressing does so with any clear distinction in their mind about the scientific differentiation made today between people who engage in cross dressing for pleasure, but without affecting their underlying sexual identity, and those that engage in what may appear to be cross dressing but who in fact have an altered sexual identity of which their dress preference is an aspect.

52 My view is that were this matter to go to a full Appeal Panel hearing, the Tribunal would not be found to have erred to the extent of infringing the boundaries on the exercise of a judicial discretion set by House v The King and, if it has, for a full Appeal Panel applying the General Steel principles to be likely to upset the ultimate decision.