Sutherland v Van Kooten

[2001] NSWADT 121

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 4.30 to 5.00 pm, and finished around 7 pm. After cleaning up at the ground the Gilgandra team went to the Binnaway hotel for a drink and a barbecue.

7 Messrs Toomey and West, accompanied by another player Mr Guy Williams, left Binnaway in Mr West's car some time after 8 pm, arriving in Mendooran around 9 pm where they stopped for some food and refreshments.

8 Mr West went to the hotel while the other two went to the cafe across the road to order food. They then joined Mr West in the hotel and this was the time at which the alleged first incident occurred.

9 The bus carrying a number of players, as well as Mr Sutherland, left Binnaway some time later, and arrived in Mendooran some time between 9.30 and 10.00 pm. Mr Sutherland alleged that he went into the hotel, and this is when the second alleged incident occurred.

Evidence For The Complainants

Evidence of Paul West

10 Paul West gave evidence that he is an Aboriginal person, and has lived in Wellington all his life, and that he has been an Aboriginal Community Liaison Officer with the NSW Police Force for some years. He stated that he was returning from Binnaway in his car, a misty blue ford station wagon, with Darren Toomey and Guy Williams after the game on the 15th of March 1997 because the bus was going to Gilgandra but they lived in Wellington. He said that Darren Toomey was driving the car. He stated that they arrived in Mendooran at around 9 pm. He said that he had not drunk any alcohol at Binnaway, but had had several beers in the car.

11 He stated that he went through the front door of the hotel and into the toilets while the other two went into the cafe across the road. He said that whilst in the toilets, using the urinal, someone grabbed him by the arm and said

"This is not a public toilet. Now get out."

He said "Mate, I am only passing through, and I want to buy a couple of beers, and I will be on my way."

The man then left the toilet area.

12 He then went into the bar to buy some beer. There he met Messrs Toomey and Williams. He did not mention what had taken place in the toilets to them because he thought that if he carried out his intention to buy some beer the man would see that he had been telling the truth and the matter of using the toilets would not be taken further.

13 He walked up to the bar and said to the man, who was the same one who had grabbed him in the toilet area, and whom he later determined was Tim Van Kooten "Two long necks please?"

14 Mr Van Kooten said "This is not a public toilet. I don't serve you people in here any way so get out."

Mr West said "What do you mean?"

and Mr Van Kooten repeated his response in similar terms.

Mr West said "Are you refusing to serve me because I am an Aboriginal?"

And Mr Van Kooten said "yes""

Mr Toomey then said "Mate, this is the 90's, you can't do this sort of thing."

Mr Van Kooten then said "This is my pub. I can serve who I want when I want. Now leave."

Mr West then said "We are going. But what is your name?"

Mr Van Kooten said "Bill Smith."

15 After this conversation Mr West and the others left the bar. They noted that the licensee's name on the sign outside was Tim Van Kooten.

16 Mr West stated that the three players gave Mr Van Kooten no reason to refuse them service. They were not disorderly nor intoxicated. He asserted that they were refused service because they were Aboriginal people.

17 The three friends went straight to the police station where they reported what had happened to Constable Martin. They had to wait for a while because he was not there when they arrived. After this they returned to the cafe where they collected their food, and took it back to the car where they ate it. They saw the bus arrive carrying others from the Gilgandra team, and when it stopped they got out of their car and walked across the road to it. Mr West said that he did not wave the bus down, and that he did not get on the bus.

18 After those on the bus were also refused service Mr West assisted to encourage those travelling on the bus to get back on board and leave rather than causing problems at the hotel. Mr West stated that he saw Constable Martin again at that time when the crowd from the bus were milling around.

19 Mr West confirmed that there were only two women travelling on the bus, both of whom had very young children with them. He said that there were no teenagers in the party, as only the first and reserve grade teams had played.

20 Mr West stated that he had not possessed a card identifying him as an Aboriginal Police Officer for about six years. He said that his card had been destroyed. He stated that he certainly did not have one with him on the night the incident occurred.

21 Mr West stated that he found the way Tim Van Kooten had spoken to him and his friends embarrassing, downgrading, humiliating and shameful. He explained the profound impact that the incident had had on him. He stated that he suffered stress, aggravated anxiety and depression.

22 He advised that, in March 1998, he had been called to Dubbo by a senior police officer, and it was then that he found that he had been accused of impersonating a police officer. He was appalled by this allegation. He said the officer in question said that he had to counsel him about the incident in Mendooran. He felt as if it was the Police Force treating him the same way as he had been treated at the hotel. This was the reason that he had complained to the Ombudsman.

23 After this he was off work on sick leave from 2 March 1998 until 29 May 1998. He produced medical certificates to support this evidence.

He stated that he lost six weeks sick leave during this time. He stated that this leave was worth $8659,30. He provided documentary support for the leave he had taken.

24 Mr West explained that his stress had all come to a head at this time (a year later) when he was informed that Sergeant Williams, who had been investigating Mr West's complaint to the Liquor Board, had recommended that Mr West be counselled. Mr West said that this reinforced his distress as it appeared that he was being regarded as a perpetrator of, rather than a victim of, the incident.

25 Mr West explained the respect that he had gained from Aboriginal and non-Aboriginal people throughout the community through his work and his playing of Rugby League. He stated that the incident still worried him some three years after the event. He said that he is now more sensitive to racial issues.

Evidence Of Darren Toomey

26 Mr Toomey gave evidence that he is an Aboriginal person and was, at the time of the hearing, employed as an Aboriginal Student Support Officer with TAFE. At the time of the incidents he lived in Wellington.

27 He confirmed that he travelled in Mr West's vehicle, a ford station wagon, after the game, and that he was the driver. As such he did not drink any alcohol after the game.

28 When they arrived at Mendooran he went with Mr Williams to order food at the cafe, and then met Mr West in the bar of the hotel. He said that the bar was "packed" and very noisy, although it went quiet when they walked in.

29 He said that he stood about 2-3 metres back from the bar with Mr Williams while Mr West attempted to buy some beer, but that he could hear the conversation between Mr West and Mr Van Kooten quite clearly. In fact he at one stage participated in it as described above in Mr West's evidence.

30 He confirmed, almost exactly, the words used by Mr West, Mr Van Kooten and himself.

31 Mr Toomey recalled Mr West showing Mr Van Kooten some kind of card, but he did not see it and did not know what it was.

32 Mr Toomey stated that he had intended to put some money into the poker machine while they were waiting for their food to be prepared. He said that he was not given the chance to do this.

33 Mr Toomey agreed that the three players then left the bar and went to the police station and, after waiting for the constable to return, made a complaint. They then returned to the cafe, collected their food, and ate it in the car.

34 Mr Toomey confirmed that the three players were still present when the bus arrived. He said that Mr West did not flag it down. After it pulled up the three players walked across the road to it.

35 He remembered a number of people getting off the bus, and he saw Mr Van Kooten shut the doors of the hotel. He did not encourage those on the bus to try to go in. He stated that he only recalled the players, the driver and Mr Sutherland being on the bus.

36 Mr Toomey stated that he had grown up in Wee Waa where there was racism, but that he got on well with the non-Aboriginal community through football. He stated that he was the only Aboriginal person in his year at school to complete the HSC.

37 He said that the incident had caused him to re-think his position in the community. He said that he was embarrassed, and that the incident remains a source of distress and anger to him.

Evidence of Guy Williams

38 Mr Williams gave evidence that he was an Aboriginal person, and had participated in the game at Binnaway, and that he travelled back with Messrs Toomey and West in Mr West's car. Mr Toomey drove. They were driving to Wellington, and stopped at Mendooran for drink and food. The car pulled up on the right-hand side of the road near the cafe.

39 Mr Williams confirmed that he and Mr Toomey had gone to the cafe while Mr West went to the hotel. Messrs Toomey and Williams then went to the hotel while their food was being cooked and saw Mr West in the bar.

40 Mr Williams stated that there was a fair amount of noise in the bar. He did not recall all of the conversation which occurred, but remembered that the barman refused Mr West service, saying that he was "smart" with Mr West. He did recall Mr West asking if the refusal was "because of the colour of our skin" and the barman saying "I don't serve you sort of people". He said this last comment was made as they were leaving, and that he recalled the barman asking them to leave. He said that Mr West did not show the barman his police liaison officers card.

41 Mr Williams confirmed the complaint to the police once the constable had returned, coming back to the car to eat, and the bus arriving. He said that it pulled up on the left-hand side of the road near the hotel. He said that he and his companions were still in the car when the bus arrived.

42 Mr Williams said that Mr West did not flag the bus down. He recalled walking over to the bus with the other two and talking to some of the passengers. He said that by this time some of the people had got off. He then recalled the publican, who had spoken to Mr West, shutting the front doors and walking around to the side of the hotel premises.

43 He then remembered Mr Sutherland talking to passengers on the bus, telling them to calm down and do nothing stupid. The bus left, and the three players followed in Mr West's car.

Mr Williams agreed that "I felt a bit angry about the incident." He said "I like to go into a pub without any hassles."

Evidence of Tony Sutherland

44 Tony Sutherland is an Aboriginal person and was, at the time of the incidents, President of the Gilgandra Rugby League Football Club. He detailed a history of employment with the State Rail Authority and Local Government, and said that he currently works as Manager of the Government Access Centre in Gilgandra.

45 Mr Sutherland confirmed that the bus, which was hired and therefore not identified as carrying members of the Gilgandra Club, arrived at Mendooran between 9.30 pm and 10 pm. He said that, as well as players, there were two women whom he named, and their babies on the bus. There were no people (apart from the babies) under 18 with the party. The driver was probably the only non-Aboriginal person on the bus.

46 He stated that, as it was getting late in the evening, it had been decided to stop at the hotel so that refreshments could be purchased, and so that the women and babies did not have to use the public toilet facilities in the park.

47 Mr Sutherland stated that he had not drunk alcohol at Binnaway, and that he had had two light beers on the bus.

48 He said that he did not see Mr West flag down the bus.

49 Mr Sutherland said that he was one of the first, if not the first, off the bus, and that he walked straight towards the hotel to buy further refreshment. He did not speak to Mr West, or anyone else travelling in his car, and in fact did not know that they were in Mendooran. He stated that he walked into the public bar of the hotel, but before he got to the bar he was grabbed by the arm by a man he later determined to be Tim Van Kooten.

50 Mr Sutherland stated that Mr Van Kooten said

"Your kind are not welcome here, so get out."

Mr Sutherland said "What do you mean by your kind?"

Mr Van Kooten said "Just get out. See your black mates across the road."

Mr Sutherland said "What's this all about? What have I done? Is this because I'm a Blackfella."

Mr Van Kooten said "Yes. now get out."

51 After this conversation Mr Sutherland turned and left the bar. As he did so he stated that he heard the doors being locked behind him.

52 Mr Sutherland stated that he then spent time encouraging others in his party to get back on to the bus, along with Mr West, and Anthony Towney (another player and Aboriginal Community Liaison Officer). He stated that a number of the passengers were quite irate about what had occurred. However, he was keen that problems did not occur as a result of the incidents at the hotel. He said that if it had not been for the efforts of Messrs West, Towney and himself there could have been trouble. People were argumentative, but he did not think it was that loud.

53 Mr Sutherland described the impact of this incident on him. He said that at the time the bar was crowded, and he felt humiliated and down-graded about being an Aboriginal for the first time in his life. He felt smaller than everyone else in the bar, when he should be equal. He said that he had never experienced such treatment before.

54 He stated that his self-esteem took a severe battering from this incident, and he still feels differently about his race and position in the community. He said that he now plays sports in "koori-only sides" more than he used to, he looks for position that are "Aboriginal-identified" and he is more defensive of racial issues. He stated that he is getting better, but there was a major impact for a good while.

Evidence of Anthony Towney

55 Mr Towney stated that he is an Aboriginal person, and has been an Aboriginal Community Liaison Officer in the Police Service for five years.

56 Mr Towney was travelling on the bus with the rest of the Gilgandra team. He confirmed that all players on board were seniors, and that there were no players under 18. He confirmed that there were several women on board with their small children.

57 Mr Towney stated that the football game had finished at about dusk, and that both teams had gone to a hotel at Binnaway for about three quarters of an hour. The bus had then driven towards Gilgandra, and it had been decided to stop at Mendooran for refreshments and a comfort stop.

58 He stated that the bus pulled up on the same side of the road as the hotel, adjacent to the beer garden. Most of the people who got off the bus went through the back part of the hotel to the toilets. Mr Sutherland was the only one who went through the front door.

59 Mr Towney stated that a few minutes later Mr Sutherland came back and said that he had been refused service.

60 At this point Mr Towney became aware of Mr West and his companions who had walked across from their car on the other side of the road. At the same time people started coming out of the hotel towards the bus. They were asking questions about why they could not be served, mainly of the publican.

61 Mr Towney agreed that people were upset. They wanted to know why they could not go in. They wanted to buy refreshments and use the facilities. He said that voices were raised, but he did not hear any threats.

62 A little later the local police officer arrived. Messrs West, Sutherland and Towney encouraged people back on to the bus.

63 Mr Towney explained that this was the first game for the club after a year off, because of previous problems which he did not elucidate. He said that for this reason they were being particularly careful that trouble did not occur.

Evidence of Kelvin (Tommy) Colbran

64 Mr Colbran stated that he was a farmer near Gilgandra, and the driver of the bus on the night of the incident. He confirmed the sequence of events prior to arrival, and that the purpose of the stop was for refreshments and to use the facilities. He stated that he is a non-drinker, and that even if that were not the case he would not have been drinking whilst driving the bus.

65 Mr Colbran said that there were about three women on the bus.

66 He confirmed that the bus had pulled up on the left-hand side of the road near to the hotel. He said that he drove such vehicles carefully, and would not have pulled up in a hurry or on the wrong side of the road. He stated that Mr West did not flag the bus down.

67 He stated that when the bus stopped he got out and had a cigarette. He then walked to the front of the hotel where he met Messrs West, Toomey and Williams who told him what had happened to them. He then met Mr Sutherland coming back from the hotel who also explained what had occurred. He said that at that time the front doors were locked, and people were congregating. However, there were no raised voices.

68 After that he walked around to the back of the hotel where he met the man he identified later as being the licensee, Mr Van Kooten.

69 Mr Van Kooten said to him "What do you want?"

Mr Colbran said "A bottle of coke. I'm a non-drinker, and I'm driving the bus."

Mr Van Kooten said "get off the premises. You're with them."

Mr Colbran said "There's two Aboriginal Community Liaison Officers out there. There are no problems."

Mr Colbran stated that Mr Van Kooten then pushed him out of the hotel.

70 Mr Colbran said that he then returned to the bus. He observed one person making threatening comments to the licensee. At that point he announced that the bus was leaving, and assisted to get people back on to the bus. The police officer thanked him for this assistance.

Evidence of Leo Duff

71 Mr Duff gave evidence that he had operated a hair-dressing salon in Wellington for 52 years, and that he had cut Mr West's hair for 20 years.

He stated that for all of that time he has had a number two cut, and that he always has a good amount of hair all over his head.

Evidence For The Respondent

Evidence Of Tim Van Kooten

72 Mr Van Kooten confirmed that he was, at the time of the incident, the licensee of the Royal Hotel Mendooran, and that he had held the licence since 4 December 1996. He also confirmed that he owned the lease of the hotel in partnership with his wife Katrina Van Kooten.

73 Mr Van Kooten explained that prior to this hotel he had managed and worked in hotels for about 22 years. He had also been, for a time, the central west division delegate of the Australian Hotels Association.

74 He confirmed that incidents had occurred at the hotel on 15 March 1997, and that he had made contemporaneous notes in his hotel diary.

75 Mr Van Kooten said that on the evening of the incident he saw three men enter the bar. He recognised Messrs Toomey and Williams who had been patrons of a hotel he managed at Dubbo, although he did not know their names.

76 He said that the person he now knows to have been Mr West asked him for the toilets. He said

"Can I get you something?" to which Mr West replied

"No, we just want to use the toilets."

Mr Van Kooten said "The public toilets are down the street."

At this point the three men left the hotel.

77 Mr Van Kooten's reaction in sending potential customers away to the public toilets seemed a little unusual to the Tribunal. However, it was explained by him that upon taking over the hotel he had found the hotel toilets in poor condition. He had made an effort to improve them and keep them clean, and he sought to restrict their use to hotel patrons only. Further, there had been an ongoing dispute between the cafe owner across the street and himself, as she referred her customers to the hotel when they sought to use a toilet.

78 Mr Van Kooten stated that the three men stood outside for about 30 seconds and then came back inside. Mr Van Kooten stated that either Mr West or Mr Toomey said

"This is a public place, and you can't stop anyone from coming in here whenever they want."

Mr Van Kooten stated that the three became argumentative and one or more of them said
"We can use the toilets if we want to and you can't stop us."
Further, one or more of them said
"You're a racist."
Mr Van Kooten stated that he said
"I can stop whoever I want from coming into the hotel. Now leave."

79 Mr Van Kooten said that there were about forty people in the bar at the time plus more in the beer garden. It was show day in Mendooran and it was a very busy evening.

80 Mr Van Kooten said that before leaving the hotel Mr West said

"You are in a lot of trouble now because I'm a police officer."

Mr Van Kooten said
"Show me some ID."
He then handed Mr Van Kooten an identification card and Mr Van Kooten said
"You obviously can't read because this is an Aboriginal Liaison Officer's card. Anybody can get them in a packet of Weet-Bix."

81 Mr Van Kooten returned the card, which he described as looking like an "old driver's licence encased in plastic", and all three left.

82 Mr Van Kooten stated that the three men walked across to the cafe to collect their food, and then sat in their car eating it. He said that they were there for about an hour. He described the car as a white car.

83 Mr Van Kooten stated that while he was picking up glasses in the beer garden outside later that evening he saw "them" flag down a mini-bus. He said that the bus braked sharply and pulled over to the wrong side of the road. He saw Mr West get on to the bus and talk to the passengers. He saw Mr West get off the bus, and the bus then pulled across the road and into the hotel car park.

84 Mr Van Kooten stated that he went inside and put down the glasses he had collected. He said that he did not lock any of the hotel doors. He understood that his wife had locked the doors while he was outside.

85 Mr Van Kooten denied meeting Mr Sutherland in the front bar of the hotel and refusing him service. In fact he asserted that the first time he had met Mr Sutherland was at the conciliation conference at the Anti-Discrimination Board.

86 He then returned to the beer garden area, where he saw at least a dozen people trying to use the toilets. He said that he turned most of them away except for two who were using the urinal. He touched several on the arm to gain their attention. He said that they were all laughing and saying "you can't stop us."

87 Mr Van Kooten said that no women attempted to use the toilets, but admitted that he had been inside the male toilets for a time and so could not be certain.

88 Mr Van Kooten stated that at no stage did any of the passengers from the bus ask if they could purchase anything. I asked them all to leave as the hotel toilets are not public toilets. They returned to the bus.

89 Mr Van Kooten said that the people he turned away were all men or young men.

90 Mr Van Kooten said in his affidavit that someone who he later identified as Mr Colbran then approached him at the back door of the hotel and said that he would like to buy some drinks. In his oral evidence he said that Mr Colbran said

"I'll be right for a couple of beers?"

91 Mr Van Kooten said

"No, because you're with that bus-load of footballers who have been arguing with me about the toilets. I don't want any trouble here."

92 Mr Van Kooten said in oral evidence that he refused service to Mr Colbran because he thought he was going to supply alcohol to people who were either already intoxicated or under age. However, he only described one man as being intoxicated, and he made no effort to check ID'S of people whom he felt may have been under age.

93 Mr Van Kooten said that while the group of men were returning to the bus they were yelling abuse at him and using foul language. Once in the car park they became more aggressive. One of the men called him a "white cunt". At about this time Constable Martin arrived. He and Paul West calmed the group down and told them that they had to leave.

94 Mr Van Kooten stated that at no time did he refuse service to any of the complainants. The only person to whom he refused service was the white male at the back door of the hotel as set out above. He stated that he did this because he formed the view that many of the group trying to use the toilets were under the influence of liquor, and some of them may have been under age. When pressed on this issue he said that at least one man was far too intoxicated to serve. Others were mildly intoxicated.

95 Mr Van Kooten further stated that he did not take any of the complainants by the arm. He said that he did not speak to Mr West in the toilet area, but only in the bar of the hotel.

96 Mr Van Kooten gave evidence that he did see young men between the ages of 16 and 18 on the bus. He then said that he knew they must have been over 16 because the minimum age for football players at senior level is 16. He stated that he did not see any women on the bus.

97 Mr Van Kooten stated that he would have been too scared to use "racial words" as the situation was far too volatile.

98 Mr Van Kooten stated that on the night of the incident Mr West's hair had been very short- he had been almost bald.

99 Mr Van Kooten agreed in cross-examination that the windows in the hotel are opaque, and that you can only see through the open front door.

100 He said that, after the show that day, the pub had filled up by about 5 pm. Most of the people there were locals who had been at the pub since that time.

101 Mr Van Kooten stated that patrons at the hotel that night were from all kinds of racial backgrounds. He said that as a person of Dutch descent he has borne the brunt of racist comments himself. He said that he has never discriminated against anybody on the ground of race.

102 There were some references in Mr Van Kooten's evidence to a further incident which occurred, involving the Gilgandra Rugby League Football Club, in July of the same year. He said that a busload of club members arrived at the hotel at about 12.15 pm and that, when he advised them that people from that club were barred, after some complaint and chanting they left. The Tribunal took little evidence on this incident because, as it occurred some months after the first incident, and no complaints arose from it, it was not considered relevant.

103 Mr Van Kooten agreed that he had reported Mr West's alleged actions of impersonating a police officer to the Gilgandra police the next day. He agreed that at that time he had been aware of the complaints made about him to the Mendooran police officer, and said that he did this to provide himself with some protection if Mr West or others took action against him. He said that he discontinued this action in March 1998 when it was implied to him by the police inspector handling the matter that if he did this Mr West would not pursue his complaints. He agreed that, in correspondence to the Anti-Discrimination Board, he had threatened to re-institute this complaint.

104 In cross-examination Mr Van Kooten agreed that he had probably discussed the incident with all of the witnesses for the respondent since it occurred. He said that it had been a topic for discussion in the hotel.

Evidence of Katrina Van Kooten

105 Ms Van Kooten confirmed much of the background evidence given by her husband. This related to the ownership of the hotel, the holding of the licence, and their experience in this area. She also confirmed the evidence about the condition and use of the toilets, and the argument with the cafe owner across the road. She stated that she had often heard her husband tell people to use the public toilets down the street if they were not hotel patrons.

106 Ms Van Kooten stated that the day of the incidents was show day, and that the pub was quite full.

She stated that on the night of the incidents she was working in the hotel with her husband. In her affidavit she stated that she saw the discussion between him and Messrs West, Toomey and Williams, although she could not hear the conversation. In her oral evidence she added that she saw them return three minutes later. She also said in oral evidence that she did not see Mr West show anything to her husband.

107 Later that night she was working behind the bar whilst her husband was collecting glasses in the beer garden. Sharon Fisher, a customer, advised that the man who had been here before and said he was a police officer was across the road waving his hands at somebody. She stated that she walked from behind the bar and looked across the road. She saw Paul West get on to the bus, which was pulled up on the other side of the road. He spoke to the people on the bus and it then pulled across the road to the hotel.

108 Ms Van Kooten stated that she felt unable to cope with what may be an aggressive situation while her husband was outside. She therefore immediately locked all of the doors to the hotel except the back door so that her husband could come back in if he wanted to. She asked Peter Meyers to stand by that door. She said that her purpose was not to escalate the problem so she was as much keeping the locals in as the new arrivals out.

109 Shortly afterwards Ms Van Kooten said that she saw a police officer (she could tell by the hat) trying to open the front door. He then walked around the back and came in through the beer garden.

110 Ms Van Kooten stated that Mr West's hair was much longer on the day of the hearing than it had been on the day of the incidents.

111 She described Mr West's car as a white sedan.

Evidence of Graham Duce

112 Graham Duce gave evidence in an affidavit that he is a farmer near Mendooran.

113 On the day of the incidents he was in the bar of the hotel and no more than 10 feet away from Messrs West, Toomey and Williams when they were standing at the bar. He deposed that he was facing them the whole time.

114 He deposed that when asked what they would like they said that they wanted to use the toilets. Mr Van Kooten gave his standard answer that the toilets are just down the street. He deposed that the men walked out and back in again and then there was a verbal argument about who can and can't use the toilets. Mr Van Kooten asked them to leave and one said he was a police officer. Mr Van Kooten asked him for ID which he looked at for a second and then threw it back on the bar. He deposed that Mr Van Kooten said something like

"You can't read. It says liaison officer."

115 Mr Duce deposed that about an hour later he was sitting at the table near the back door in the beer garden when he saw the person who claimed to be a police officer wave his arm frantically in order to gain the attention of the driver of a passing mini-bus. The driver braked extremely hard and pulled to the side of the road opposite the hotel. The man who had waved got into the bus and talked to the occupants. He got off and the driver swung it across the road and parked near the hotel.

116 In his oral evidence Mr Duce described Mr West as flagging down the bus by crossing both arms above his head.

117 Mr Duce deposed that all of the passengers got off and went into use the toilets. He deposed that there were no women on the bus, but he later said that he may not have seen all of the passengers. He said that there were a few boys who looked about seventeen. Most of the passengers looked Aboriginal, but there were some who were white. A few of the passengers were intoxicated.

118 Mr Duce deposed that he heard a white man, who appeared to be in charge of the group, ask Mr Van Kooten for

"A couple of drinks"

which Mr Van Kooten refused because he was with the footballers.

119 Mr Duce deposed that all of the passengers from the bus moved out to the car-park where they yelled abuse at the publican. The police arrived and the bus eventually left.

120 In his oral evidence Mr Duce stated that he recognised Paul West, who had a shaved head on the night of the incident, but none of the other participants. Mr Toomey and Mr Sutherland were in the hearing at that time.

121 Mr Duce stated that the man who flagged the bus looked "a bit like" Mr West. He said that the sound of the bus skidding had first drawn his attention to its arrival.

122 Mr Duce said that he had arrived at the hotel at about 6 pm after having "a few" beers at the show. He was then drinking until the bus arrived. He agreed, in cross-examination, that his recollection was a bit shaky, but he could recall what had occurred.

123 Mr Duce agreed in cross-examination that he had made some notes "a bit after" the incident. It had been the subject of discussion in the hotel, and a few people had suggested that this occur. He said that "the incident was common talk for a while amongst the locals."

124 Mr Duce stated that he is a regular at the hotel and "attends most nights." However, he could not remember the time in July the same year when the bus-load of footballers had arrived.

Evidence of Garry Lincoln

125 Mr Lincoln, a local resident, gave evidence in an affidavit that on the night of the incidents he had been entering the bar of the hotel at the same time that three men unknown to him had entered. At the hearing he stated that he did not see any of them present. He then said that Mr West could have been one, but that his hair was much shorter.

126 Mr Lincoln deposed that the bar was crowded. While waiting he said he saw Mr Van Kooten offer to serve them, and heard one of them say that they just wanted to use the toilets. Mr Van Kooten replied that the public toilets were down the street.

127 Mr Lincoln deposed that the three men then went outside and talked. He deposed that they then returned and yelled at Mr Van Kooten

"The pub is a public place and you can't stop anyone coming in here whenever they want."

One then said

"You're a racist."

128 He deposed that Mr Van Kooten then said "This is my pub. I can serve who I want when I want. Now leave."

One of them then said
"You're in a lot of trouble now because I'm a police officer".

129 Mr Van Kooten asked for his ID and, after looking at it, Mr Van Kooten said

"you can't read. It is an Aboriginal Liaison Officer card. Anyone can get them in a Weet-Bix packet."

130 Mr Lincoln deposed that who can use the toilets and the Mendooran show were the main topics of conversation in the bar for the next hour. He deposed that someone then yelled that the blokes who had been here before had waved down a bus and got on it.

131 He deposed that Ms Van Kooten then came out from behind the bar, looked out at the bus, and then started locking all of the doors.

132 He further deposed that he saw Mr Van Kooten at the back door of the hotel talking to a white person who subsequently left the hotel.

133 In oral evidence Mr Lincoln said that he saw the card handed over, to Mr Van Kooten by Mr West but did not look at it.

134 Mr Lincoln also said in oral evidence that it took 3-5 minutes to close the doors.

135 Mr Lincoln identified Messrs Sutherland and West as two of the three men who came into the bar and spoke with Mr Van Kooten at the time of his arrival on the night of the incidents. He said he could not remember the third one. Mr Toomey was present at that time. Mr Lincoln later identified Mr Sutherland as the person who had claimed to be a police officer.

136 Mr Lincoln stated that he is a local and visits the hotel daily.

Evidence of Peter Meyers

137 Mr Meyers gave evidence that he was playing pool with his son in the parlour of the hotel on the evening of the incidents when he saw Ms Van Kooten come out from behind the bar and commence locking the doors of the hotel. He did not see Mr Van Kooten in the bar at that time.

138 He stated that Ms Van Kooten asked him to stand by the rear glass door and not let anyone in, but she did not tell him the reason. Then other patrons told him that a bus-load of footballers had just arrived, and that there could be trouble.

139 He said that as he stood by the door he saw "lots of men and boys" laughing and running through the beer garden to the men's toilets. At no stage did any of them try to enter the hotel. He saw Mr Van Kooten standing near the back gate at this time.

140 Mr Meyers gave no evidence about service being refused to Mr Colbran.

141 Mr Meyers confirmed that he visited the hotel about three times a week.

Evidence of Victoria Thomson

142 Ms Thomson gave evidence that she was in the front bar of the hotel near the poker machines on the night of the incidents.

143 She stated that she heard three men arguing with Mr Van Kooten over use of the toilets. She stated that she heard one of the men say that he was a police officer, and he handed over his ID after Mr Van Kooten asked for it. It was a white card. She said that Mr Van Kooten said something like "you can't read. It says Aboriginal Liaison Officer."

144 Ms Thomson said that she was only aware of the men being in the bar once. Ms Thomson stated that at no time did she hear Mr Van Kooten make any racist comments, or refuse to serve the men. She said that she was about two bar stools, or about 2.5 meters away from the men at the time. She agreed that there were 30 to 40 people in the bar and that it was quite crowded and fairly noisy.

145 Ms Thomson identified Mr West as the person who had claimed he was a police officer, although she said that he looked "more solid" now and that his hair had been shorter and darker on the night.

146 Ms Thomson was questioned on her unusual pronunciation of the word liaison. The pronunciation suggested that she may not have heard the word spoken before.

147 Ms Thomson observed that, later in the evening when there were problems outside the hotel, she had wanted to go outside to look but could not because Ms Van Kooten had locked the doors.

148 Ms Thomson said that during the day she had sold soft drinks at the show, and competed in a few events. She had arrived at the hotel at about 6.30 pm. She said that she does not drink alcohol, and was drinking coca-cola.

149 Ms Thomson noted that both she and her husband are of Aboriginal descent, and that they go to the hotel for darts and other social and sporting occasions. She said that they have never experienced any discrimination from Mr Van Kooten. She agreed that she is a regular at the hotel. She said that she has often heard Mr Van Kooten tell people to use the public toilets down the street.

150 Ms Thomson, during cross-examination, admitted that "we have talked quite a bit about the incident in the last few days".

Evidence of Janelle Stone

151 Ms Stone gave evidence that she was sitting in the beer garden on the evening of the incidents and saw three men across the road from the hotel near a white sedan. She identified one of them as Paul West, but said that his hair was much shorter at that time.

152 She said that she saw Paul West wave down the bus, describing his actions as waving both arms above his head with his arms quite wide apart. She said that the bus pulled up on the wrong side of the road. Mr West got on and talked to the passengers. The bus then pulled across to the car park near the hotel.

153 She stated that the men who got off the bus were noisy and aggressive, and that she thought they were drunk. They walked through the beer garden towards the men's toilets.

154 Ms Stone said that she saw no women on the bus, although there were some young men who looked under age.

155 Ms Stone stated that she had been at the hotel since about 7 pm, and that she was drinking coke.

156 Ms Stone agreed that she was a regular at the hotel, and that she had heard Mr Van Kooten turn people away from the toilets a number of times if they were not customers of the hotel.

157 Ms Stone agreed that the incidents had been a topic of conversation in the town, and that her father and grandfather had both talked to her about it.

158 Ms Stone agreed that the beer garden was at the same level as the road, and that it was decorated by small trees and plants. She asserted, however, that her view to the street was not obstructed.

Evidence of Stephen Drew

159 Mr Drew gave evidence in an affidavit, but was not called to give oral evidence.

160 He deposed that he had been in the public bar on the night of the incidents.

161 He said that he had seen three men walk into the bar which was very crowded. As they could not get to the bar they asked several patrons where the toilets were.

162 Mr Drew then said Mr Van Kooten asked them if he could get them anything to which the big bald one replied that they just wanted to use the toilets. Mr Van Kooten replied that the public toilets were down the street. The three men left.

163 Mr Drew said that shortly afterwards they returned to the bar and started shouting at Mr Van Kooten. They said that a pub was a public place and he could not stop them using the toilets. After abusing Mr Van Kooten and calling him a racist Mr Van Kooten asked them to leave.

164 Mr Drew said that at this point the big bald one said he was a police officer and that Mr Van Kooten was in trouble. Mr Van Kooten asked for some ID, which was provided. Mr Van Kooten looked at it and threw it on the bar and said "you can't read. It's an Aboriginal Liaison Card and anyone can get them in Weet-Bix boxes". They then all left continuing to yell abuse at Mr Van Kooten.

165 Mr Drew said that the men then sat on their car as if they were waiting for someone. Later he saw the big bald one wave down a bus and get on it. The bus then swung over to the side of the road near the hotel. He said that at this point he saw Ms Van Kooten lock all the doors of the hotel. She told some of the patrons not to open them because there could be trouble with a busload of blokes. He stated that he stayed in the bar and kept an eye on the doors to make sure no-one opened them.

Evidence of Sharon Fisher

166 Ms Fisher also only provided affidavit evidence.

167 She deposed that she was sitting in the front bar of the hotel with her husband on the night of the incidents. She stated that it was show day, and the hotel was extremely crowded.

168 She said that she thought it was around 9 pm when she heard someone behind her ask where the toilets were. She turned and saw three men of Aboriginal descent.

169 She deposed that she then heard Mr Van Kooten ask them if they wanted anything, and when they replied that they did not he told them that the public toilets were down the street.

170 Ms Fisher stated that the three men went outside, and then came back in and said that this was a public place, and a person could not be stopped from using the toilets. After some discussion Mr Van Kooten asked them to leave.

171 Ms Fisher said that at this point one of the men said that he was a police officer, and following a request for ID from Mr Van Kooten, produced a card. Mr Van Kooten looked at it, threw it down on the bar, and commented that it was only an Aboriginal Liaison Officer's card, and that anyone could get them out of a Weet-Bix packet. The men then left.

172 Later the same evening Ms Fisher deposed that she saw one of the men waving his arms whilst standing across the road. She drew this to the attention of Ms Van Kooten who came out from behind the bar and stood in the doorway. Ms Fisher deposed that she then saw a bus pull up, and that Ms Van Kooten went around and locked all the doors to the bar, saying that there could be trouble.

173 Ms Fisher deposed that she is a non-drinker, but enjoyed talking with people at the hotel.

Evidence of Phillip Bell

174 Mr Bell also only provided affidavit evidence.

175 He deposed that he was in the bar of the hotel on the night of the incidents and that it was very busy because of the show.

176 He saw three men come into the bar and stand next to him, looking around. The barman asked them what they would like, and they said that they just wanted to use the toilets. The barman replied that the public toilets were down the street and the men then walked out.

177 Mr Bell deposed that not long afterwards they returned and were quite argumentative. He said that they claimed that a pub was a public place and anybody could use the toilets. When the barman refuted this they started raising their voices and accused the barman of refusing them because they were black.

178 He deposed that one of the men then claimed to be a police officer and the barman asked for ID. The man handed over a card, which the barman looked at. The barman then threw it on the bar and said "you can't read. This is an Aboriginal Liaison Officers card and anyone can get them in Weet-Bix packets." The men then left.

179 Mr Bell deposed that during the next hour or so he noticed the three men standing around a white car across the road. They were eating, and appeared to be waiting for somebody.

180 Mr Bell continued that at about 10 pm someone yelled out that a bus containing the Gilgandra Footie Team had just pulled up. Mr Bell saw the barman rush in and put down an armful of glasses he had collected. He then went out towards the men's toilet.

181 Mr Bell deposed that he went to the back door to see what was going on. He stated that he saw 10 to 20 men seeking to use the toilets. Some were drunk, and some looked under age. They were laughing and saying "you can't stop us" but the barman stood in the doorway to the toilets and told them to leave.

182 Mr Bell deposed that he then saw an older white male approach the back door where the barman was standing. He asked to purchase some drinks, but the barman refused him because he was with the footballers.

183 Mr Bell deposed that there were no women on the bus.

Evidence of Baden Fisher

184 Mr Fisher only provided affidavit evidence.

185 He deposed that he was in the bar of the hotel with his wife on the night of the incidents. He stated that it was very busy because it was show day.

186 He deposed that at about 9 pm he heard someone behind him ask where the toilets were. The barman asked if he would like something, to which the person replied that he just wanted to use the toilets. The barman Mr Van Kooten then said that the public toilets are down the street. This is his usual reply in such a case. Mr Fisher stated that he didn't even look around because he has heard Mr Van Kooten say this before.

187 Mr Fisher deposed that not long after this he heard someone saying that this is a public place and you can't stop anyone using the toilets. He turned around and saw three men arguing with Mr Van Kooten about this. Mr Van Kooten then asked them to leave, and they called him a racist. One of them then said that he was a police officer. Mr Van Kooten then asked him for ID which was provided. Mr Fisher says that the man leaned between him and his wife to pass Mr Van Kooten the card.

188 Mr Fisher deposed that Mr Van Kooten read the card, threw it on the bar and said

"you can't read because this is an Aboriginal Liaison Officer's card, and anyone can get them in a Weet-Bix packet."

The men then left.

Evidence of Malcolm Mckechnie

189 Mr Mckechnie also only provided affidavit evidence.

190 Mr Mckechnie deposed that he was at the hotel on the night of the incidents.

191 He deposed that at about 9 pm he witnessed a conversation between Mr Van Kooten and three males. He said that the men did not wish to purchase anything but only to use the toilets. The publican stated that the toilets are for hotel patrons.

192 Mr Mckechnie deposed that, after the men argued for a while, one claimed to be a police officer. He said that at no time did Mr Van Kooten state that he did not serve Aboriginal people or that he did not like them on his premises.

Statutory Provisions

193 The relevant provisions of the NSW Anti-Discrimination Act in this matter are sections 7, 19, and 50. They provide as follows-

7. What constitutes discrimination on the ground of race

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, 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 of a different race or who has such a relative or associate of a different race, or
(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or
(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

19. 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 the ground of race:

(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.
50. Victimisation

(1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

Findings Of Fact
194 This matter largely turns on which version of the evidence is accepted. If the complainants version of events is accepted there is little doubt that the respondent has breached the relevant provisions of the Act. If the respondents version is accepted there is little doubt that the complaints should be dismissed. The Tribunal has therefore mainly focussed its attention on an analysis of the evidence in making its determination.

Preliminary events

195 Most of the issues here are not in dispute, but the Tribunal has made findings which provide a background to the complaint.

196 It is not in dispute that the three complainants are of Aboriginal descent.

197 It is not in dispute that the Gilgandra Football Team played a trial match in Binnaway on the 15th of March 1997. Because of the warmth of the weather the match was played late in the afternoon and finished around dusk. After tidying up the team went back to the Binnaway hotel for between half an hour and an hour and then left for home.

198 Messrs West, Toomey and Williams travelled in Mr West's car and left first. They were travelling to Wellington. Others travelled on a bus hired for the occasion. Mr Colbran drove that bus, and Messrs Sutherland and Towney were passengers. This bus was returning to Gilgandra, but both vehicles had to pass through Mendooran. By the time the vehicles reached Mendooran the bus was between 45 minutes and an hour behind the car.

199 It is also not in dispute that Mr Van Kooten is the licensee of the Royal Hotel Mendooran, and that he and his wife leased the hotel. On taking over the business some four months prior to the day in question, one of Mr Van Kooten's innovations had been to repair and clean up the toilets at the back of the hotel. Since doing that work he had regularly discouraged people who were not patrons of the hotel from using the toilets. This had caused disagreement between him and the proprietor of the cafe across the road, who apparently sent her customers to use the hotel toilets. Mr Van Kooten often sent people who he thought were not going to buy something at the hotel to the public toilets down the street.

200 15 March 1997 was Mendooran show day, so the hotel was crowded on the night in question. Many of the patrons had come straight from the show to the hotel.

201 The hotel can be entered through front doors, or through the back door after passing through the beer garden. The toilets are at the back of the hotel, and are accessed from the beer garden. There is an area for vehicles to park adjacent to the beer garden. The cafe referred to above is across the road which the hotel faces, and which is also the main road through Mendooran.

Factors In Assessing The Evidence

202 The complainants have the responsibility to persuade the Tribunal as to the validity of their case on the balance of probabilities. This is the standard of proof required in civil proceedings such as this. The Tribunal is satisfied that this is not a case serious enough to require the standard of proof to be increased, as set out in the rules in Brigenshaw's case. The test used by the Tribunal was therefore the standard test.

203 In weighing the evidence the Tribunal gave greater weight to evidence given in person, where the witness was available for cross-examination, than it did to affidavit evidence. This is not to suggest that no weight was given to such affidavit evidence. But untested evidence such as this cannot be given the same weight as tested evidence.

204 The Tribunal has also taken into account the likelihood that evidence has been "coloured" by discussions of the events amongst witnesses. Whilst this is true on both sides of this case, it is the assessment of the Tribunal that the effect of such "colouring" has been greater on the respondent's evidence. There are a number of reasons for reaching this conclusion.

205 Firstly, most of the respondent's witnesses frequented the Mendooran hotel, and it was clear from the evidence that there was a social atmosphere where such matters would be discussed. A number of witnesses confirmed that such discussions had taken place. One, Ms Thomson, even stated that such discussion had taken place in the last few days.

206 Secondly, Mendooran is a small rural community where again incidents such as these would be much discussed. Ms Stone confirmed that she had discussed the incidents with her father and grandfather. Whilst this is also true for the complainant's and their witnesses, members of the Gilgandra Football Club, the Tribunal is satisfied that it is true to a lesser extent. Not all the relevant people live in the one town, and there are not nearly as many opportunities for discussion of events such as these.

207 Thirdly, many of the respondents witnesses had been drinking on the night of the incidents. Whilst this is also true of the complainants and their witnesses, the Tribunal is satisfied that it is also true to a much lesser extent.

208 The next factor which the Tribunal took into consideration was that the evidence of most of the respondents witnesses about what occurred outside the hotel was given by people looking from a well-lighted inside setting to what must have been a darker area outside the hotel. There is no dispute that it was dark at the time both incidents occurred. Whilst the Tribunal accepts the evidence of Mr and Ms Van Kooten as to the good lighting outside the hotel, it is satisfied that observation of events outside would be limited. Further, there was evidence from Mr Van Kooten that the windows in the front bar are frosted, so the only view for the patrons inside the bar would be through the front doors. The beer garden was at the same level as the road, and was decorated with plants and small trees according to Ms Stone.

209 A further factor which concerns the Tribunal was the identification of the complainants by the respondents witnesses. The Tribunal accepts the evidence of both Mr West and his hair-dresser Mr Duff as to the length of Mr West's hair. It is therefore concerned by the number of the respondent's witnesses who identified him as having much shorter hair or as being bald- Mr Van Kooten, Mr Duce, Ms Thomson, Ms Stone, Mr Drew. It is further concerned by the number of the respondent's witnesses who could not correctly identify the three players who were participants in the first incident, and who mistakenly identified Mr Sutherland as being involved in the first incident.

210 The Tribunal was of the view that two further matters merited mention in this list of factors. Firstly, it accepted Mr West's evidence that his car is a misty blue station waggon. It noted that several of the respondent's witnesses described it differently. Mr Van Kooten said it was a white car, Ms Van Kooten a white sedan, Ms Stone a white sedan, Mr Bell a white car.

211 Secondly, the reference by Mr Bell in his evidence to the arrival of the Gilgandra Football team merits some consideration. As the bus was unmarked, how did the person who yelled out know that it was the Gilgandra team. This could simply be a case of someone untutored in the preparation of evidence interpolating a fact that they discovered later. But it prompted the Tribunal to consider whether recollections of the July incident (about which evidence was not taken) could have become blurred with recollections of the March incident in the minds of witnesses for the respondent. This may explain such inconsistencies in the evidence as where the bus pulled up, the fact that no women were seen on the bus by the witnesses for the respondent, and the disparity in age of the people on the bus from the various accounts given. Because the Tribunal took no evidence on the July incident it did not place a great deal of weight on this as a factor, but felt that it was worth noting in its overall consideration.

The First Incident

212 The Tribunal is satisfied that Mr West did visit the toilets before ordering beers at the bar, and that he was confronted by Mr Van Kooten whilst there as set out in Mr West's evidence. The only evidence on this issue is from the two protagonists.

213 The Tribunal accepts Mr West's evidence because firstly it explains what he did whilst his colleagues went to the cafe to order food, secondly in the midst of running the hotel on a busy night Mr Van Kooten's recall is not likely to be as good as Mr West's, and thirdly it seems to the Tribunal the more natural thing for Mr West to do. If he had wanted to go to the toilet he would have been more likely to do this first. To find that he went with his friends and ordered food at the cafe, and then entered the bar with them, would be to reject the evidence of all three.

214 Having made this finding it is unlikely that Mr West and his friends would have asked for the location of the toilets when Mr West had already been there. There is no dispute that the three footballers were in the bar together, and the Tribunal accepts this. The Tribunal then finds that Mr West ordered some beers as set out in his evidence. It further finds that service to Messrs West, Toomey and Williams was refused in the manner set out by Mr West and confirmed by Mr Toomey. The Tribunal has made this finding based on the evidence of the three footballers.

215 The contradictory evidence on this issue comes from Mr Van Kooten and several people at the bar who assert that they heard the conversation. With regard to the supporting evidence the Tribunal has discounted it because of the relevant factors set out in 6,2 above, and because the people concerned could well have heard parts of the conversation and then filled in the gaps when discussing the matter with Mr Van Kooten. It is clear from all of the evidence that the bar was crowded and noisy. The two accounts of the conversation are not entirely different. Apart from Mr West's assertion that he asked for beers, as opposed to Mr Van Kooten's assertion that Mr West asked for toilets, they follow a similar pattern.

216 With regard to Mr Van Kooten's evidence, on balance the Tribunal is satisfied that it is not a true account of the situation. It has formed this view based on its previous findings that Mr Van Kooten's evidence denying meeting Mr West in the toilets was not correct, and his demeanour during the giving of his evidence and during cross-examination.

217 The Tribunal is satisfied that despite Mr West's request to purchase beer, Mr Van Kooten was annoyed enough by what he saw as Mr West's inappropriate use of the toilets to carry on the argument and refuse him service. The Tribunal further concludes that, although Mr Van Kooten was passionate about non-patrons not using the toilets, this alone could not have been enough to cause him to accept that he had been incorrect about Mr West's status when Mr West attempted to purchase alcohol. The Tribunal is therefore satisfied that the race of Messrs West, Toomey and Williams, demonstrated by their skin colour, was also a factor in Mr Van Kooten's refusal of service. The Tribunal accepts Mr West's evidence that Mr Van Kooten referred to "you people" and answered Mr West's question about being Aboriginal as confirmation of this finding.

218 The Tribunal is more troubled regarding the issue of the production by Mr West of ID, and Mr Van Kooten's allegation that Mr West attempted to impersonate a police officer. Whilst this allegation is not central to the assertion of race discrimination by the first two complainants, if the Tribunal did not accept Mr West's evidence as to the production of the card it could affect his credit overall.

219 The evidence of the respondent and his witnesses is clear that a card was produced and that Mr West claimed to be a police officer. Mr Van Kooten made these claims. Apart from Mr Van Kooten, none of those witnesses saw the card closely enough to read it. Mr Duce said that he heard the claim and saw the card, although his evidence was equivocal. Mr Lincoln heard the reference to police officer, and saw the production of ID- however he later identified Mr Sutherland as having done this. Ms Thomson heard the claim, and saw the card produced, although her pronunciation of liaison suggested that she may not have heard the word spoken before. Ms Fisher deposed that Mr West had made the claim and handed over a card, although this was untested in cross-examination. Mr Fisher gave the same evidence, but it was also untested. Mr Bell confirmed the evidence, although his evidence was untested. Finally, Mr Drew confirmed the evidence, but again his evidence was untested. Whilst Mr West and Mr Williams deny that this occurred, Mr Toomey did agree that a card had been shown.

220 Mr West's evidence with regard to the card was supported by his statement that he had not possessed a card identifying him as an Aboriginal Community Liaison Officer for some years before the incident as his card had been destroyed, and he had not got around to getting a new one. He was adamant that he had not produced a card nor said that he was a police officer.

221 The Tribunal is satisfied, on balance, that Mr West did produce a card identifying him as an Aboriginal Community Liaison Officer. However, it is not persuaded that he claimed to be a Police Officer. Both he and Mr Williams are clear on this point. Whilst the respondents witnesses are equally clear that the word Police was used, it must be remembered that the bar was crowded and noisy. Mr West, who had been an ACLO for some years, would be unlikely to suggest that he was a police officer, although he may have used the term Police. If he had said that he was a police officer he would not have so readily produced identification as an ACLO. Whilst this finding does put the credit of Mr West's evidence into question the Tribunal- bearing in mind all of the other factors that it must consider- is not persuaded that this deficiency should challenge the veracity of Mr West's evidence as a whole.

The Second Incident

222 The first question for determination about this incident is whether Mr West waved down the bus. Mr West denied that he did so, and this is supported by Mr Toomey. Mr Williams said that all three were still in the car when it pulled up. Mr Sutherland did not see Mr West flag down the bus, and nor did the driver Mr Colbran. The Tribunal notes that he would have been in the best position to see the bus being flagged down.

223 On the other hand Mr Van Kooten said that he saw "them" flag down the bus. Mr Duce also saw this, but was equivocal about how the "flagging" occurred. Mrs Stone confirmed the "flagging" but described it in a manner different to both descriptions of Mr Duce. Mr Drew also saw it, but his evidence was untested.

224 On balance, the Tribunal prefers the evidence of the complainants and their witnesses. Their denials were all quite clear, and one of them was driving the bus. The respondent and his witnesses must have been restricted by both the darkness and their positions in the beer garden. Further, there is no consistency in the method used for waving down the bus.

225 For the same reasons the Tribunal is satisfied that Mr West did not get onto the bus upon its arrival, and that it pulled over on the left-hand side of the road near the hotel, rather than crossing the road as described by the respondent and his witnesses. Mr West denied these things, and was supported by Messrs Toomey and Williams. Messrs Sutherland, Towney and Colbran - who were all on the bus - confirmed this. On the other hand Mr Van Kooten asserted that the bus had pulled up on the wrong side of the road, and had pulled across after Mr West got on it. This was supported by Ms Van Kooten, Mr Duce, Ms Stone, Mr Drew, and Ms Fisher. Had the bus done as the respondents witnesses suggest, and had Mr West arranged something with the bus passengers, why would Mr Sutherland have entered the hotel on his own.

226 Mr Sutherland's entry into the hotel is the next issue on which the Tribunal must make a finding. He asserts that he entered the front bar of the hotel on his own after being the first, or one of the first, off the bus, and that he was refused service by Mr Van Kooten. Mr Van Kooten denies this. There is no direct corroborative evidence on either side, although Mr Colbran did give evidence that he met Mr Sutherland returning from the front bar, and Mr Sutherland told him what had happened.

227 The Tribunal is satisfied that the incidents did occur as Mr Sutherland described them. This is mainly due to the serious questions of credit that have been placed against the respondent's evidence in other areas. Whilst the Tribunal recognises that Mr Sutherland bears the onus of proof on these issues, it is satisfied that the respondents evidence has been found to be so flawed in other areas that enough doubt is cast on this issue to allow the complainant to make out his onus.

228 Also, Mr Sutherland's evidence that he was grabbed by the arm by Mr Van Kooten is consistent with the evidence of Mr Colbran on how he was treated at the back door of the hotel, and Mr West on how he was treated in the toilets. Mr Van Kooten also conceded to "grabbing" or "touching" people on the arm to gain their attention.

229 Finally, the Tribunal has given some weight to Mr Colbran's evidence that Mr Sutherland immediately reported the events to him.

230 The Tribunal accepts Ms Van Kooten's evidence, supported by a number of other witnesses, that she locked the doors of the hotel. However, it is satisfied that this occurred after Mr Sutherland had left the front bar. Mr Sutherland heard the doors being locked behind him. Messrs Toomey and Williams said that they saw Mr Van Kooten lock the doors. However, it would have been difficult to see from outside who was locking the doors, and the Tribunal is satisfied that this was an assumption on their part.

231 The Tribunal notes that, according to his evidence, when Mr Van Kooten saw the bus arrive he returned to the bar to put down the glasses he was carrying. It has formed the view that Mr Van Kooten refused Mr Sutherland service before returning to the beer garden.

232 A further issue, which really only goes to credit, is whether there were women and children on the bus, and the age of the children. Mr Sutherland named the two women on the bus, and said that they both had babies with them. Mr Towney said that there were a couple of women with kids, and three or four 18-19 year olds. Mr Colbran said that there were about three women on board.

233 For the respondents evidence Mr Van Kooten could not be certain about women on the bus, but did say that there were young men who he thought may have been under age. Mr Duce did not see women get off the bus, and nor did Ms Stone, although she did see young men who she thought were under age. Mr Bell said that there were no women on board, but also thought that several of the players may have been about 17.

234 Once again, the Tribunal is persuaded by the evidence of the complainants witnesses. Their evidence was more consistent, and as participants in the trip they would have been more likely to know who the passengers were and their ages.

235 The acceptance by the Tribunal of the complainant's version of the evidence on this point reinforces the Tribunal's view that the overall evidence for the respondent was 'coloured'.

236 It is not in dispute that Mr Colbran was refused service by Mr Van Kooten at the back door of the hotel. The Tribunal accepts Mr Colbran's version of what occurred, because of the challenges to the credit of other parts of the respondents evidence. The Tribunal is satisfied that service was refused because Mr Colbran was on the bus carrying members of the Gilgandra Football Club.

237 It is not in dispute that, following the refusal of service to Mr Colbran, and the removal of other bus passengers from the toilets, the local police officer arrived. With the assistance of Messrs West, Towney, Sutherland and Colbran bus passengers were encouraged to board the bus which then left. The Tribunal so finds.

238 Finally, it is not in dispute that Messrs West, Toomey and Williams made a complaint to the Mendooran police officer about the conduct of Mr Van Kooten immediately after the first incident. It is also not in dispute that the respondent complained on 16 March to police in Gilgandra about the conduct of Mr West. This complaint was withdrawn by the respondent in march 1998, but he threatened to pursue it again in subsequent correspondence to the Anti-Discrimination Board.

Findings Of Law

Complaint Of Paul West

239 The Tribunal has already indicated in its findings in paragraphs 212 -221 above that Mr West was refused service by Mr Van Kooten, and that one of the reasons for the refusal of that service was Mr West's race. It is satisfied that this refusal constituted less favourable treatment pursuant to s 7 of the Act, and that it was on the grounds of Mr West's race, or the colour of his skin being a characteristic of that race, in breach of s 19 of the Act. Mr West's complaint of discrimination on the grounds of his race is therefore made out.

240 Mr West also alleged that he had been victimised in breach of s 50 of the Act. He relies on ss (1) (c) in that he alleged to the Mendooran Police Officer that Mr Van Kooten had refused him service immediately after the refusal of service occurred. The Tribunal found that such an allegation was made to the Police Officer concerned.

241 The detriment which Mr West alleges he was subjected to was the complaint by Mr Van Kooten that Mr West had attempted to pass himself off as a police officer, the circumstances in which that complaint was later withdrawn, and the threat to re-institute that complaint.

242 The Tribunal found that the respondent was aware of Mr West's complaint against him, and the nature of that complaint, when he made his own complaint. It is only necessary for the complainant to show that the ground alleged, that is the making of the complaint to the Police by Mr West, was a substantial and operative factor, Morrison-Liddy v Director, Department Of TAFE (1989) EOC 92-246; or "one of the real and operative grounds" Waterhouse v Bell (1991) 25 NSWLR 99. The Tribunal was satisfied that Mr West's complaint was such a ground to Mr Van Kooten. This is clear from the transcript of his evidence on the issue. He said that he wanted to make the complaint to give himself some protection from Mr West's complaint.

243 The Tribunal is satisfied that Mr Van Kooten, in making the allegations that he did about Mr West, intended to subject Mr West to a detriment, and in fact succeeded in doing so. He knew from seeing Mr West's ACLO card that he was an employee of the Police Service, and Mr Van Kooten, again from the transcript of evidence, was aware of the damage that could be caused to Mr West by the making of such a complaint. Further detriment was caused by the negotiations between the Police and Mr Van Kooten and the withdrawal of the complaint by Mr Van Kooten. The Tribunal is satisfied that this was the cause of the proposal that Mr West should be counselled. This proposal was the cause of Mr West's lengthy absence on sick leave.

244 Mr West's complaint of victimisation is made out.

245 The only defence that the respondent has to this provision of the Act is in ss (2) that the allegation made by Mr West was false, and not made in good faith. The earlier finding of the Tribunal that Mr West's race discrimination complaint is made out indicates that his allegation was not false. The Tribunal does not need to consider the other part of this defence, but indicates that in its view Mr West's allegation was made in good faith.

Complaint Of Darren Toomey

246 Following the finding that Mr West was refused service on the grounds of his race, the only issue remaining in relation to Mr Toomey is whether the whole group - Messrs West, Toomey and Williams - were refused service. The Tribunal is satisfied that this was the case.

247 The remarks made by Mr Van Kooten were addressed to all three players. Mr Toomey certainly viewed them in this way when he interposed himself into the conversation. Mr West did also, and the evidence of Mr Van Kooten, as well as Mr Duce and others, supports the view that all three men were refused service and directed to leave. Mr Toomey had intended to play the poker machines, and this opportunity was denied to him.

248 Mr Toomey's complaint of discrimination on the grounds of his race is made out.

Complaint Of Tony Sutherland

249 The Tribunals findings in paragraphs 222-238 above accepting Mr Sutherland's evidence, demonstrate that he, too, was refused service and required to leave the hotel. The references in Mr Van Kooten's comments to "your kind" and "your black mates", and his affirmative answer to Mr Sutherland's question about being a "blackfella" demonstrate that this refusal was on the grounds of his race.

250 This is supported by the conclusion reached by Mr Van Kooten, inferred by the Tribunal, that Mr Sutherland was on the bus and therefore an associate of the men he had ejected earlier that evening. Therefore, even if the finding had been that he had not been discriminated against on the grounds of his race, there would be a finding that he was discriminated against as an associate.

251 Mr Sutherland's complaint of discrimination on the grounds of his race is made out.

Awards

252 Having found the respondent liable for all four allegations of discrimination the Tribunal now turns its attention to the question of awards.

253 The complainants sought written apologies from the respondent. In the Tribunals view such apologies are of little value, particularly now that the respondent is no longer the licensee of the hotel, and it has decided not to order that they occur.

254 The complainants also sought a commitment by the respondent to staff training. As the respondent no longer holds the licence for the hotel this, too, would not be appropriate.

255 The Tribunal has therefore limited its consideration to damages.

General Comments

256 The law is clear that damages in this jurisdiction are awarded according to the rules applying to torts, and that damages should not be so minimal that they trivialise or diminish public policy: Alexander v Home Office (1988) 1 WLR 968 at 975.

257 There are many precedents in discrimination law for the awarding of damages to people refused service in hotels on the grounds of their race. They vary in amount according to the circumstances of each case, and the Tribunal has considered the table of damages awards in the CCH Equal Opportunity Reporter, as well as the individual circumstances of each refusal in making its determinations.

Paul West Discrimination Complaint

258 As well as being denied the opportunity to purchase refreshments, Mr West was hurt, humiliated, embarrassed and angered by the respondent's refusal of service. It occurred in a public place, and in front of many people including his two companions.

259 Also, the respondents manner of refusal was affronting and unpleasant. The respondents own evidence is indicative of the derogatory and offensive way in which he spoke to Mr West. As well as refusing him service he suggested that Mr West could not read, and denigrated the value of the important work which Mr West does as an Aboriginal Community Liaison Officer. In suggesting that anyone could be appointed to such a position "anyone can get them in a packet of Weet-Bix" Mr Van Kooten denigrated this section of the Police Service as well as Mr West. As a publican, responsible for the administration of liquor laws, Mr Van Kooten should have demonstrated far more respect.

260 Mr West gave evidence that he suffered stress, aggravated anxiety and depression after the incident. The incident still worried him some three years after the event, and he is now more sensitive to racial issues.

261 There was no basis for a claim for specific damages relating to this complaint. In all of the circumstances the Tribunal is of the view that an award of general damages of $6000 is appropriate.

Paul West Victimisation Complaint

262 Mr West did not find out about Mr Van Kooten's complaint to the police until March 1998. It is evident that this information, and the actions of the Police Force caused by it, had a profound affect on him.

263 When he was told that he needed to be counselled, it appeared to him that the Police Force was siding with the respondent rather than with him. He refused counselling, and immediately went on sick leave from 2 March 1998 to 29 May 1998. He produced the medical certificates supporting this leave. He gave evidence that he lost 6 weeks sick leave during this time, worth $8659.30, and supported this with documentation.

264 Mr Van Kooten's unfounded allegations have clearly caused a rift between Mr West and his employer. Mr West has lost faith in his employer because of his perception, real or imagined, that it sided with the respondent rather than him. In his evidence he indicated that he felt that this had impacted on his ability to do his job, and that he was looking for other work.

265 Mr Van Kooten's victimisation of Mr West has caused-

A loss of reputation within the workplace and with his employer, and a deterioration in the employment relationship; and

Intensification and prolongation of the emotional upset caused by the discrimination incident.

266 In all of the circumstances the Tribunal is of the view that Mr West should receive specific damages of $8659.30 for his loss of sick leave, and general damages of $8000 for the victimisation. This is a total of $16659.30.

Darren Toomey Discrimination Complaint

267 The respondents actions in discriminating against Mr Toomey pre-emptively denied him the use of the facilities of the hotel. He was also hurt, humiliated, embarrassed and angered in a public place, with many people present, including his companions.

268 The incident remains a source of concern and upset in his mind. It had caused him to re-think his position in the community.

269 Mr Toomey did not seek specific damages. In all of the circumstances the Tribunal is of the view that an award of $4000 general damages is appropriate.

Tony Sutherland Discrimination Complaint

270 The refusal to serve Mr Sutherland, as well as preventing him from obtaining refreshments at the hotel, caused him embarrassment, upset, distress and humiliation. The refusal was in a public place, and involved his removal from that place.

271 He has remained upset and angry about the incident, and he is now more sensitive to race issues than he was prior to it. The fact that he is now looking for Aboriginal identified positions, after a long history of mainstream employment, is indicative of the intensity of his hurt.

272 Mr Sutherland did not seek specific damages. In all of the circumstances the Tribunal is of the view that an award of $6000 in general damages is appropriate.

Orders

273 The Tribunal finds that-

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; and
3. A complaint of discrimination on the ground of race is made out by Tony Sutherland against the respondent.
4. 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.