Sutherland v Van Kooten

CITATION:	Sutherland & ors -v- Van Kooten [2001] NSWADT 121
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS Tony Sutherland Paul West Darren Toomey RESPONDENT Tim Van Kooten
FILE NUMBER:	991055; 991056; 991057
HEARING DATES:	15/05/2000, 16/05/2000, 17/05/2000
SUBMISSIONS CLOSED:	08/10/2000
DATE OF DECISION:	08/08/2001
BEFORE:	Innes G - Judicial Member; McDonald O - Member; Farmer L - Member
APPLICATION:	Race Discrimination - Goods and Services - Victimisation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Morrison-Liddy v Director, Department of TAFE (1989) EOC 92-246 Waterhouse v Bell (1991) 25 NSWLR 99 Alexander v Home Office (1988) 1 WLR 968
REPRESENTATION:	APPLICANT M Fraser, barrister RESPONDENT D Graham, solicitor
ORDERS:	1 Complaints of discrimination on the grounds of race and victimisation by Paul West are made out against the respondent; 2 A complaint of discrimination on the ground of race is made out by Darren Toomey against the respondent; 3 A complaint of discrimination on the ground of race is made out by Tony Sutherland against the respondent; 3 The Tribunal orders that the respondent pay damages to the complainants in the following amounts, on or before 28 days from the date of publication of this decision-; Paul West $22659.30; Darren Toomey $4000; Tony Sutherland $6000

Introduction

1 On 15, 16 and 17 May 2000 the Equal Opportunity Division of the Administrative Decisions Tribunal heard complaints referred to it by the President of the Anti-Discrimination Board made by Messrs Paul West, Darren Toomey, and Tony Sutherland against Tim Van Kooten, the licensee of the Mendooran Hotel.

2 The complaints consisted of allegations of discrimination on the grounds of their race in breach of the NSW Anti-Discrimination Act, and in the case of Mr West a further complaint of victimisation under that Act. The complaints arose from incidents which occurred at the hotel on 15 March 1997. The three complainants alleged that they were all refused service at the hotel on the grounds of their race.

3 The complaints, lodged respectively on 19 March 1997, 18 July 1997, and 30 July 1997, were investigated by, and attempts were made at conciliation by, the President of the Anti-Discrimination Board. These attempts were unsuccessful, and the complaints were referred for hearing in 2000.

4 The Tribunal determined that these complaints should be heard together, which they were on 15, 16 and 17 May 2000.

Background

5 The complainants were in the case of Messrs West and Toomey players in, and in the case of Mr Sutherland the President of the Gilgandra Rugby League Football Club. On 15 March 1997 the club played a trial game against the Binnaway club involving its first and reserve grade players. These players, all adults according to the evidence of the three complainants, travelled to the game in a hired and unmarked bus and a number of cars.

6 Because of the weather at that time of year the game started later than usual. Messrs West and Sutherland gave evidence that the game commenced around…