Trapman v Mad Madison Hotel

[2001] NSWADT 53

CITATION:	Trapman -v- Mad Madison Hotel [2001] NSWADT 53
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT William Trapman RESPONDENT Mad Madison Hotel
FILE NUMBER:	991067
HEARING DATES:	22/02/01
SUBMISSIONS CLOSED:	02/22/2001
DATE OF DECISION:	04/03/2001
BEFORE:	Loukas C - Judicial Member; Edwards K - Member; Cox R - Member
APPLICATION:	Race Discrimination - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Commissioner of Corrective Services v Aldridge [2000] NSW ADT AP 5 Waterhouse v Bell (1991) 25 NSWLR 99 James v Eastleigh Borough Council [1990] 2 AC 751
REPRESENTATION:	APPLICANT S Friend, solicitor RESPONDENT S Habib, barrister
ORDERS:	1.Complaint dismissed.

BACKGROUND

1 On 24 October 1996 the Anti-Discrimination Board received a complaint from Mr William Trapman alleging discrimination on the ground of race by the Mad Madison Hotel in the provision of goods and services.

2 The complainant alleged in his statement that on 10 August 1996, he and a group of friends went to the hotel at approximately 1.30 am. He stated they were well dressed, and whilst they had been drinking elsewhere that night, they were not rowdy, nor showing signs of intoxication. He stated that he approached the barman for a drink and was told “I can’t serve you”. He approached a woman who he believed was the manager and told her that the barman had refused to serve him. He further stated she replied by saying “I just gave him orders not to serve you”.

3 He also stated he was aware of a separate group of Aboriginals at the hotel that night who were also refused service and that other non Aboriginal patrons were being served at the time.

4 Further information was received by the Anti-Discrimination Board from the complainant on 15 September 1997. This was the statement of Mr Robert Hookey.

5 On 1 July 1998 the Anti-Discrimination Board wrote to the respondent with the complainant’s allegations and requested a response.

6 On 29 July 1998, the Anti-Discrimination Board received a reply to the complainant’s allegations from the respondent. The respondent denied refusing service to any person on racial grounds and could not recall the complainant nor the incidents alleged. The respondent stated that if the bar staff are of the considered opinion that any prospective customer is already intoxicated they are required by law to refuse that person service irrespective of race.

7 On 16 October 1998, the Anti-Discrimination Board received a response from the complainant to the respondent’s reply to his allegations. On 23 March 1999 the Board received further information from the respondent. On 29 June 1999 the Anti-Discrimination Board was advised that the complainant wanted his matter referred to the Equal Opportunity Division of the Administrative Decisions Tribunal.

COMPLAINANT’S CASE

8 The complainant, Mr Trapman, gave evidence. Mr Trapman’s statement forms part of Exhibit 1 [Report from the President of the Anti-Discrimination Board]. Under cross examination Mr Trapman agreed he had been at the South Sydney Leagues Club for approximately three and a half hours and had had a few drinks. Mr Trapman said he was looking forward to a “pub crawl”. He said he was not intoxicated to the stage he should be refused service.

9 Mr Hookey also gave evidence and his statement forms part of Exhibit 1. In paragraph 2 of the statement the following appears:

I walked up to the bar and asked for 2 VB’s and a blonde lady behind the bar said, “We don’t serve you kind here”. I said, “What are you refusing me service for? I have done nothing here”. The lady looked towards the security guard and appeared to give him a nod and he started walking towards me. I went back to my table and told my mate Mico what happened. I saw him walk up to the bar as he was going to get the drinks.

10 In evidence in chief, he stated that he did not agree with paragraph 2 in that he had previously that evening been served a beer. Additionally, he agreed there was an Aboriginal woman drinking in the hotel, but insisted she was drinking lemonade.

RESPONDENT’S CASE

11 Ms Kathryn Young gave evidence. Her statement is Exhibit 2. In her statement at paragraph 3, Ms Young states:

“In August 1996, although I was not the licensee of the hotel, I was and remain the person who is beneficially interested in the Hotelier’s license for the Madison Hotel. Also, at that time I worked some shifts at the hotel managing the trading of the hotel during the evening.”

Further, at paragraph 4 Ms Young states that
“I have assumed that the ‘blonde’ person referred to in Mr Trapman’s statement is myself.”
Under cross examination she indicated that she did not recognise Mr Trapman nor Mr Hookey and nor did she remember the incident. She denied wanting “to stop Aboriginal people congregating” at the hotel.
Annexed to the statement was a copy of a page from “Sydney Pubs” that referred to the Madison Hotel.

12 Mr Gilbert Chow gave evidence. His statement is Exhibit 3. In his statement he indicates that he is the current licensee of the Hotel and that he was the licensee in August 1996.

13 Further, in his statement he indicated that he became “aware of the events about which Mr Trapman complains in July 1998”. And that he had “no recollection of those events.” He was cross examined about hotel “incident books”. He gave evidence that aboriginal people have “always” been served in the hotel.

COMPLAINANTS SUBMISSIONS

14 The complainants legal representative submitted (interalia) that:

• Mr Trapman was not swayed in his evidence.
• Mr Hookey was forthright and honest and in particular corrected his statement and gave evidence that he had been served a beer.
• The respondent has not “backed up” the assumption that he “must have been drunk”.
• Mr Hookey’s evidence of the statement “We don’t serve your kind here” made it clear the distinction was because of race.

RESPONDENT’S SUBMISSIONS

15 The Respondent’s representative submitted (interalia) that:

• Ms Young agreed she was the person identified and gave evidence that she has never refused service on the basis of race.
• The respondent was asked for a response by the Anti Discrimination Board almost two years after the event.
• The statement “we don’t serve your kind here” was not made.
• Mr Hookey was served a drink.
• Evidence was given by Mr Trapman of a group of friends accompanying him at the hotel. These witnesses were not called to give evidence.

THE LAW

16 The relevant sections of the Anti-Discrimination Act 1977 are sections 7 and 19. Section 7 sets out what constitutes discrimination on the ground of race. Section 19 provides and relevantly provided as at August 1996 that it is unlawful for a person who provides goods or services to discriminate against another person on the ground of race.

17 The proper test to be applied when determining a case of direct discrimination has been considered on numerous occasions by appellate courts (Commissioner of Corrective Services v Aldridge [2000] NSW ADT AP 5).

18 In Waterhouse v Bell (1991) 25 NSWLR 99 the Court of Appeal considered that part of the Act which deals with direct discrimination on the ground of marital status. Clarke JA stated (at p 105):

The inquiry for which the section calls is a factual one involving essentially, two separate questions. The first, has A been treated less favourably than a person of different marital status was, or would have been, treated in the same circumstances, or in circumstances which are not materially different? The second, if so, was the ground of the differential treatment of one of those mentioned in (a), (b) or (c)?

19 In Waters v Public Transport Corporation (1991) 173 CLR 349. Dawson and Toohey JJ stated (at p 392):

Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race).

20 In the leading House of Lords decision, James v Eastleigh Borough Council [1990] 2 AC 751, Lord Goff stated:

The problem in the present case can be reduced to the simple question - did the defendant council, on the ground of sex, treat the plaintiff less favourably than it treated or would treat a woman?

21 These statements clearly express the relevant law. The question is, did the respondent, on the ground of race (or a characteristic of race) treat Mr Trapman less favourably than it treated or would have treated a non-Aboriginal person in the same circumstances, or in circumstances which were not materially different?

FINDINGS

22 It is clear that the complainant, Mr Trapman, feels aggrieved by the events that have occurred. It is also clear that Mr Trapman believes that he has been subject to racial discrimination.

23 The evidence, however, which was presented to the Tribunal is not sufficient to enable the Tribunal to be satisfied on the balance of probabilities that an act of racial discrimination against Mr Trapman took place within the meaning of the Anti-Discrimination Act. The belief of the complainant, however sincerely held does not alone provide sufficient evidence for his claims.

24 Mr Hookey’s evidence that the statement was made “we don’t serve you kind here” is at odds with the fact that Mr Hookey gave evidence that he had previously that evening been served a beer. Mr Hookey’s evidence of the statement “we don’t serve you kind here” is also at odds with evidence from both Mr Hookey and Mr Trapman that an Aboriginal woman was drinking there that evening. These inconsistencies cast a cloud over Mr Hookey’s evidence. The Tribunal is not satisfied that the statement was made.

25 For these reasons, the Tribunal finds that insufficient evidence has been provided to substantiate the complaint and accordingly dismisses the complaint.

COMMENT ON DELAY BY ANTI-DISCRIMINATION BOARD

26 The Tribunal has no educational role in relation to the Anti-Discrimination Board. It is indeed, however, most unfortunate that the Anti-Discrimination Board having received a complaint on the 24 October 1996 from Mr Trapman delayed until the 1 July 1998 to write to the respondent requesting a response to the complainant, Mr Trapman’s allegations. The Anti-Discrimination Board must ensure that their processes are more prompt. Otherwise, the obvious hazards are that memories fade, evidence is lost and, importantly from the perspective of procedural fairness, there arise unreasonable delays for parties who are entitled to make their responses to each other with alacrity.