Tupou v Scruffy Murphy's Pty Ltd & ors

[2007] NSWADT 192

CITATION:	Tupou v Scruffy Murphy's Pty Ltd & Ors [2007] NSWADT 192
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sikani Benji Tupou FIRST RESPONDENT Scruffy Murphy's Pty Ltd SECOND RESPONDENT T & B Corporate Security Services Pty Ltd THIRD RESPONDENT Australian Venue Security Services Pty Ltd
FILE NUMBER:	061087
HEARING DATES:	2 and 4 May 2007
SUBMISSIONS CLOSED:	4 May 2007
DATE OF DECISION:	23 August 2007
BEFORE:	Britton A - Deputy President; Schembri A - Non Judicial Member; Hiffernan N - Non Judicial Member
CATCHWORDS:	Race Discrimination - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Civil Liability Act 2002 Liquor Act 1982
CASES CITED:	Alexander v Home Office [1998] 2 All En 118 Browne v Dunn (1893) 6 R 67 (House of Lords) Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 Dell v Dalton (1991) 23 NSWLR 528 Hall v Sheiban (1985) ALR 503 Moran v McMahon (1985) 3 NSWLR 700 James Hardie & Co Pty Limited v Arthur Austin Newton; State Rail Authority of NSW v Arthur Austin Newton (1997) 42 NSWLR 729 Nesci v TAFE Commission of NSW (No 2) [2005] NSWADT 183 Planet Fisheries Pty. Ltd. v. La Rosa (1968) 119 CLR 118 Shellharbour Golf Course v Wheeler [1999] NSWSC 224 Sutherland & ors v Van Kooten [2001] NSWADT 121 University of New South Wales v Moorhouse (1974-75) 133 CLR 1
REPRESENTATION:	APPLICANT D Hillard, solicitor FIRST RESPONDENT B Cross, barrister SECOND RESPONDENT T Brandisiou, agent THIRD RESPONDENT No appearance
ORDERS:	1.The complaint of discrimination on the ground of race is substantiated. ; 2. The First, Second and Third Respondents are to pay the Applicant within 21 days, the sum of $6000, for which they are jointly and severally liable.; 3. The Second Respondent is to pay the Applicant the sum of $2000, within 21 days for the aggravation of the Applicant’s injury.; 4. The Third Respondent is to pay the Applicant the sum of $1000, within 21 days for the aggravation of the Applicant’s injury.

1 Mr Sikani Tupou was born in Samoa and is in his early thirties. He claims that on two separate occasions in 2005 he was refused entry to Scruffy Murphy’s, a hotel on Goulburn Street, Sydney. He alleges that on both occasions he was told by security guards, ‘No Islanders allowed’. The Hotel admits that for a period it did implement a policy restricting the entry of Pacific Islanders but asserts it was not introduced until some time after the alleged incidents about which Mr Tupou complains.

2 T & B Security was responsible for security at the Hotel in August 2005 and concedes that Mr Tupou was refused entry but claims it was because he was intoxicated, not because of his race. T & B Security is the second respondent in these proceedings.

3 Mr Tupou and the Hotel were each legally represented in these proceedings. Mr Tibi Brandisiou, a director of the company, represented T & B Security. No appearance was made on behalf of Australian Venue Security, the company responsible for security on the first occasion Mr Tupou was allegedly refused entry. Being satisfied that Australian Venue Security had been notified of this hearing, the matter proceeded in its absence.

What Mr Tupou must prove

4 To succeed in his complaint of unlawful discrimination on the ground of race, under s 19(a) of the Anti-Discrimination Act 1977 (the Act) Mr Tupou must establish, on the balance of probabilities:

First, if proven, the conduct he complained of to the Anti-Discrimination Board would constitute a refusal to provide a service.

Second, that the conduct complained of did occur.

Third, that the treatment he received was less favourable than that a prospective patron not of his race was/ would have been afforded in comparable circumstances.

Fourth, that one of the reasons for any less favourable treatment was because of his race.

5 ‘Services’ are broadly defined by s 4 of the Act and include services relating to, ‘entertainment, recreation or refreshment’ and those consisting of ‘access to, and the use of any facilities in any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not’. There can be no argument that the alleged conduct constitutes a refusal to provide a ‘service’, as defined by the Act, and nor is it asserted otherwise.

Was Mr Tupou refused entry?

6 Two key factual issues are in dispute: was Mr Tupou denied entry and, if so, was he intoxicated? It is asserted for the Hotel that Mr Tupou’s credit is in issue and great care should be taken in accepting his account. To put this submission in context, it is necessary to examine the evidence surrounding Mr Tupou’s complaint in some detail.

(i) Alleged refusal of entry -24 March 2005

7 Mr Tupou says that he arrived at the Hotel on 24 March 2005 at about 11 pm after having consumed two alcoholic drinks. He claims that while he and his friend, Alex Farani, were standing in a queue, a security guard, ‘a Polynesian guy’ walked up to him and the following conversation took place:

Security guard: Sorry boys, no Islanders.

Mr Tupou: Are you serious?

Security guard: Yep, no Islanders.

8 Mr Tupou claims he tried without success to cajole the guards, saying he was from Cuba and Mr Farani was from Mexico, but he was met with the response, ‘No brothers tonight’.

9 That account was corroborated by Mr Farani who said that at first he thought the guards were joking and when he realised they were not, was ‘shocked and disgusted’. He said he remembered the incident well, claiming he had never before been refused admission on account of his race.

10 Both witnesses insisted they were not drunk when they arrived at the Hotel and that each had only had a couple of drinks. Mr Farani claimed that neither he nor Mr Tupou had been out for a ‘big night’ as they both had to work the next day.

11 Messrs Farani and Tupou gave slightly different accounts about what they did immediately before and after being turned away from the Hotel. Both say they met at Mr Tupou’s home and then travelled into the city by train. Mr Farani put the time of their meeting at about 10 pm. On his recollection both had a beer; Mr Tupou claimed he did not. Both testified that on the way to the Hotel they stopped off at a nearby bar/s. Mr Farani thought it was Charlie Chan’s or the Three Wise Monkeys; Mr Tupou thought it was the former. Both recalled going for a drink at a nearby bar after being turned away from Scruffy Murphy’s. Mr Farani thought they went to only one bar, either the Shark Bar or Charlie Chan’s, Mr Tupou thought it was two, the Shark Bar and another George street bar, the name of which he could not recall. Mr Farani said he had a beer and went home sometime between 1 and 2 am. Mr Tupou denies drinking after leaving the Hotel. He thought they went home at around 3 am.

(ii) Alleged refusal of entry-25 August 2005

12 Mr Tupou testified that five months later he again tried to gain entry to Scruffy Murphy’s, this time in the company of his friend, Jared Kerisson. He claimed that while waiting to enter the Hotel he noticed four men being turned away who appeared to be of Middle Eastern appearance and sober. He claims that not long after that incident, he and Mr Kerrison were pulled out of queue and questioned by a security guard:

Security guard: What nation are you from?

Mr Tupou: I’m Samoan or Nieuean.

Security Guard: Sorry boys I don’t know how to say this but you guys can’t come in tonight.

Mr Kerrison: Why?

Security Guard: No Islanders or Lebanese.

Mr Tupou: There’s only two of us, we’ve had one drink each, and we’re dressed according to bar regulations. What’s the problem?

13 Mr Tupou claims that another guard then joined the conversation and commented that he had to turn away Arab friends ‘as well’. Mr Tupou claims that he and Mr Kerrison were approached by a third guard, a Samoan, who addressed the pair, in Samoan, ‘Sorry no brothers’. Mr Tupou said he questioned the Samoan guard and was told that he had had to turn away friends who were Islanders. Mr Tupou said he asked for ‘your fella’s’ [the supervisor] name but this request was refused. (Mr Brandusoiu confirmed that his company’s policy was to not disclose the identity of security guards.)

14 In cross-examination Mr Tupou denied being questioned by the guards about how much he had drunk that night or being asked to produce identification. Mr Brandusoiu assured the Tribunal that this was ‘standard practice’. Mr Tupou was also cross-examined about the appearance of the security guards. He said he could not recall exactly what they were wearing, apart from black trousers, but had no doubt that they were ‘security’. He said that he did not recall whether they were wearing identification or a company logo. Mr Brandusoiu testified that all guards employed by T & B Security were required to wear a blue business shirt which carried the company logo and display identification.

15 Mr Tupou insisted that he and Mr Kerrison were not drunk when they arrived at Scruffy Murphy’s. He claimed that he had no more than two alcoholic drinks. He recalled that they had a couple of drinks at a bar, Charlie Chan’s, but did not stay long as they did not like the music and headed off to Scruffy Murphy’s.

16 According to Mr Tupou, after being refused entry to Scruffy Murphy’s he and Mr Kerrison went off to a nearby bar and were allowed in without incident.

17 A statement prepared by Mr Kerrison was filed in these proceedings. Mr Tupou decided not to press for its admission as Mr Kerrison, a New Zealand resident, could not attend to give evidence. The Hotel notified Mr Tupou that Mr Kerrison would be required for cross-examination on the first day of the hearing.

Mr Tupou complains about being refused entry to Hotel

18 Mr Tupou claims that a week after the second alleged incident he rang the Hotel to complain and spoke to a manager who identified himself as ‘James’. On his account, James said he should not have been turned away but conceded that there had been ‘lots of problems with Polynesians and New Zealanders’ and, because of this, security had been told to ‘keep an eye on them’. Mr Tupou said he pointed out that he and Mr Kerrison didn’t look like a threat: they were both small in stature and sober. According to Mr Tupou, James apologised and said he would take the matter up with other managers with a view to finding a ‘better way’ of dealing with these types of conflicts ‘without discriminating against Islanders or making you feel discriminated’. Mr Tupou said the conversation ended with him saying he would be taking the matter further and James replying, ‘You have got to do what you have to do’.

19 Hotel director, Malcolm McGuinness, testified that no one by the name of James was employed by the Hotel at the time of Mr Tupou’s alleged call. He claimed that no member of staff could recall speaking to Mr Tupou.

20 On 9 September 2005, Mr Tupou lodged a complaint with the Anti-Discrimination Board. Under the heading, ‘What would you like to happen to sort out this complaint?’ he wrote,

I am sick of being looked upon like a threat because of my nationality and spoken to like I am stupid and dumb.

I would like both parties (security company) and (Bar managers) to acknowledge that you can never judge a book by its cover, and that not all Polynesians are a threat. It is the security guard’s job to handle these kinds of situations without being hostile or rude, especially to patrons who are not under such high levels of alcohol. I would like a written apology addressed individually to myself, Jared and Alex… and to be able to get in without problems keeping in mind obeying dress code regulations and behaviour etiquette.

21 As noted, no appearance was made on behalf of the third respondent, the company responsible for security on the first occasion on which Mr Tupou was allegedly refused entry to the Hotel. Nor did it reply to the Board’s request for particulars about the complaint (See Tab H of the President’s report).

22 T & B Security took over the task of providing security services to the Hotel in August 2005, and remains in that role. No one who was at the Hotel on the evening of 9 September 2005 and employed by T & B, testified in these proceedings.

23 Mr Brandusoiu, the only person called by T & B Security to give evidence, was responsible for overseeing security staff provided to the Hotel. He testified that he did not learn of Mr Tupou’s complaint until he received the letter from the Board dated 3 May 2006. (Apparently earlier correspondence from the Board had gone to the wrong address.) This conflicts with Mr McGuiness’s claim that when the complaint was first brought to his attention, in September 2005, he raised the issue with both security companies.

24 In reply to the Board, Mr Brandusoiu wrote that the ‘guards … explained that refusal of entry was as result of Mr Tupou and company appearing intoxicated’ [sic]. He went on to point out that many of the guards employed by T & B are of ‘Polynesian and Middle Eastern background and understand I do not tolerate discriminatory behaviour whatsoever’.

25 In evidence, Mr Brandusoiu claimed that on receipt of the Board’s letter he spoke to the five security guards who had been rostered on 9 September 2005 and each said that Mr Tupou was refused entry because he was drunk. He said that shift supervisor, Tesio Sidio, told him that he remembered the incident because he spoke to ‘him’ in Samoan. According to Mr Brandusoiu, Mr Sidio said that Mr Tupou had not given his name.

26 Mr Brandusoiu admitted he was aware that Mr Sidio could have been requested to give evidence in these proceedings.

27 Mr Brandusoiu confirmed that the guards employed by his company were required to record major incidents, such as refusing entry to someone who was intoxicated or rowdy in an ‘incident notebook’. He said the book was generally kept for a few months and that the one containing entries for September 2005 had been destroyed by the time he learnt of the complaint from the Board.

28 Mr Brandusoiu said that during the relevant period, between 80 to 100 people would be turned away on a busy night, usually a Saturday, and between 15 and 40 during quieter periods. Mr McGuiness said that sometimes up to 300 people were turned away on a Saturday evening.

History of alcohol consumption

29 In a statement prepared for these proceedings Mr Tupou claimed that since undergoing heart surgery in 1993 he ‘always avoided drinking too much and getting drunk’. He stated that because of his condition he took anti-coagulant medication, ‘Warfarin’, which his treating cardiologist warned could damage his health if coupled with excessive alcohol consumption.

30 Mr Farani has known Mr Tupou for about 16 years. He said that about twice a year the two went out for a ‘big night’. He described a ‘big night’ as one where they stayed out late and sometimes consumed ‘a lot of alcohol’, which could be as much as eight beers and three spirit drinks. He claimed they had cut back on ‘big nights’ since Mr Tupou had become a ‘family man’.

Reliability of evidence

31 The Hotel and T & B Security submit that the inconsistencies between the evidence given by Messrs Tupou and Farani are such that Mr Tupou’s claim that he was turned away from the Hotel on two occasions on account of his race cannot be seen as reliable. In support, they point to Mr Farani’s inability to recall the correct date of the (first) offending evening; the conflicting evidence about Mr Tupou’s history of alcohol use; the discrepancy in the accounts given by Messrs Tupou and Farani; the conflicting evidence about the manager, ‘James’, and Mr Tupou’s inability to reliably describe the security guards.

32 Differing accounts of evening As the Hotel points out, there were inconsistencies in the accounts given by Messrs Tupou and Farrani about what occurred on the offending evening. These primarily concern the number and names of the bars they visited before and after Scruffy Murphy’s.

33 Inconsistency in some or all of the evidence given by witnesses does not necessarily mean that one or other is being untruthful.

34 Human memory is fallible. The ability to recollect particular events is determined by many factors, including the passage of time; whether a contemporary record was made of the event; the strength of a person’s memory and any external factors that might impede recall, such as lack of sleep, alcohol and drug consumption.

35 The ability to recall a particular event will also be determined by its significance to the individual seeking to recall it. Many, for example, will be able to remember where they were and what they were doing when Princess Diana’s death was announced or man first landed on the moon but little else about either day.

36 That Messrs Tupou and Farrani gave differing accounts of the bars they visited, when they left for home and other details of the evening does not, of itself, make their evidence of being refused entry to the Hotel, unreliable. It is to be expected that they would have a sharper recollection of an event of some significance, namely, being turned away from a public place on account of race, than unremarkable events that happened on the same evening. That they gave different accounts about what bars they visited before being turned away at the Hotel, if anything indicates that as claimed each prepared their statement without assistance from the other.

37 There is no material discrepancy between the accounts each gave of what happened at the Hotel. Both recall Mr Tupou joking with the guards about being Mexican/Cuban; the apparent discomfort of the guards when telling the pair they would not be admitted; and each reacting in disbelief.

38 Description of the guards Much was made by T & B of Mr Tupou’s inability to recall what the security guards wore on the evening of 25 August 2005. It is common ground that they wore black trousers and one of the guards was Samoan. The only evidence led for T & B about what the guards wore was given Mr Brandusoiu. He claimed all guards were required to wear a blue shirt carrying the company logo and display ID. No firsthand evidence was given of whether all guards complied with the uniform requirement that evening.

39 Because Mr Tupou cannot recall what the guards were wearing does not necessarily mean that his account of that evening is unreliable. It is merely one of the factors to have regard to when considering the evidence overall.

40 The phantom manager The Hotel claims that further doubt is cast on the reliability of Mr Tupou’s credit given that no one by the name of James was employed in a management role when he allegedly rang the Hotel to complain.

41 In his initiating complaint to the Board Mr Tupou set out his account of what he was told by ‘James’. This was that the Hotel had: experienced problems with ‘Polynesians and Maoris’; told its security guards to keep ‘an eye out’ for them [‘Polynesians and Maoris]; changed security guards because of the problems with Polynesians.

42 It is not in question that the Hotel changed its security firm or that its managers believed that ‘Islanders’ were responsible in part for the Hotel coming to the attention of the licensing police. It is difficult to see how Mr Tupou would have come to learn of this information other than by disclosure by an employee or agent of Hotel. It may have been that Mr Tupou was mistaken about the name of the person he spoke to, or that the person he spoke did not give his real name, but the absence of some alternative explanation to account for how Mr Tupou came to learn of these agreed matters makes acceptance of his account compelling.

43 Alcohol Use The conflicting evidence about Mr Tupou’s alcohol use is troubling. Mr Farani directly contradicts his claim of restrained alcohol use over an extended period. This raises a question about the reliability of Mr Tupou’s account of being sober on the two occasions he was turned away from the Hotel. Put simply, if his evidence on this point was untruthful, can his evidence in relation to the complaint be accepted?

44 It is argued for Mr Tupou that it is not open to the Hotel to submit that his credit is in issue, relying on Browne v Dunn (1893) 6 R 67 (House of Lords) which is cited for the proposition that if a party fails to test the credibility of a critical witness for the other side on some point of significance in cross-examination, it may not then rely on a submission attacking the credit of the witness on the point in question after the conclusion of the evidence.

45 Mr Farani’s disclosure about the big nights was made after Mr Tupou gave his evidence. He was however cross-examined about his state of sobriety on the nights in question and had the chance to deal with those issues. It seems to us that he did not suffer any significant prejudice from the Hotel’s failure to put any propositions arising from Mr Farani’s evidence to him. It is noted, too, that he did not seek to give further evidence on this point.

46 Mr Farani was candid in cross-examination about the occasional big nights but strongly asserted that this was not one. All of this suggests that Mr Farani’s evidence that this was not a ‘big night’ is probably correct.

47 Also relevant in the assessment of the truthfulness of Mr Tupou’s claim that he was sober on the two occasions he was turned away from the Hotel is the strength of the evidence to contradict that claim. His account of the first occasion was corroborated and not contradicted. In contrast, his account of the August incident is unsupported and in conflict with the hearsay evidence given by Mr Brandusoiu. Apart from the inherent difficulties with hearsay evidence, especially its untested nature, the weight to be given to that evidence is diminished even further by the facts that the supervisor and the four other guards who were questioned were unassisted by contemporaneous record, the incident had occurred some nine months earlier, and it involved turning away an otherwise unknown Samoan man in circumstances at a hotel where between 15 and 100 patrons were turned away each night on account of being intoxicated. This evidence is simply implausible. T & B’s failure to call any eyewitnesses gives rise to an inference that their truthful evidence would not be of assistance.

48 The explanation proffered by Mr Brandusoiu that the supervisor was able to recall this otherwise unremarkable event, as he too is Samoan, is equally far-fetched given the Hotel’s evidence that unruly ‘Islanders’ had become such a problem that some two months later it became necessary to introduce the controversial ‘No Islander’ policy. Taken together with the absence of any explanation to account for Mr Brandusoiu’s failure to call the supervisor to refute Mr Tupou’s claims, leads us to conclude that his evidence on this point cannot be accepted.

49 Date of refused entry It is argued for the Hotel that Mr Farani’s evidence must be treated with a degree of circumspection, given his insistence under cross-examination that the offending night was in 2006, not 2005 as claimed in the statement prepared by him for these proceedings.

50 Mr Farani’s evidence was that he been to the Hotel on one occasion, that being the night he was turned away. The date he gave in his statement was correct but for the year. In cross-examination he refused to resile from that date.

51 As stated, we found Mr Farani to be truthful in his evidence. He did not seek to embellish his account of mistreatment by the guards. He admitted that he drank heavily on occasions. Having regard to his evidence overall, we have concluded that the most likely explanation for Mr Farani’s inability to identify that he had given the wrong date was nerves under robust cross-examination.

52 Summary In summary, Messrs Tupou and Farani were credible witnesses. Nothing in their demeanour gave rise to any concern that either of them was an untruthful witness. On the contrary, each appeared to be making a genuine effort to tell the truth as best he could remember it. Mr Tupou’s evidence in relation to the first incident was satisfactorily corroborated by Mr Farani. It was also indirectly corroborated by the evidence that the Hotel instituted a policy of banning Islanders, albeit on its account after the conduct about which Mr Tupou complained. On the other hand, the evidence adduced from T & B Security in respect of the second occasion was implausible and cannot be accepted. We find, on the balance of probabilities, that Mr Tupou’s account of being turned away from the Hotel on two occasions when he was not intoxicated, is made out.

Direct treatment/causation

53 In the absence of any evidence that the Hotel routinely turned away sober patrons who were not Samoan, it follows that Mr Tupou’s exclusion from the Hotel constitutes ‘less favourable treatment’. Having accepted Mr Tupou’s account of the stated reason for being turned away, it follows that one of the reasons for his less favourable treatment was his race.

Is the Hotel liable for the conduct of the guards?

54 The Hotel relies on the so called ‘authorisation defence’ under s 53 of the Act. Section 53(1) provides that a principal will be liable for the acts of their agent which amount to a contravention of the Act, ‘unless the… principal did not, either before or after the doing of the act, authorise the agent… either expressly or by implication, to do the act’. Section 53(3) provides a defence to a principal otherwise liable under s 53(1) providing they can establish that they ‘took all reasonable steps to prevent the agent … from contravening the Act’. It is not in issue that at all relevant times an agency relationship existed between the Hotel and the second and third respondents.

55 It is for the Hotel to establish it did not authorise the offending conduct and/or took all reasonable steps to prevent it: s 109 of the Act.

56 It is argued for the Hotel that the evidence does not support a finding that it authorised the guards to refuse entry to Mr Tupou on the grounds of race. It refutes the contention put for Mr Tupou that in March and August 2005 it had in place a race-based door policy (the policy). In addition, it denies condoning Mr Tupou’s exclusion from the Hotel on race grounds (which is not conceded). It argues that it is not open to Mr Tupou to now assert that the policy was in place when he was turned away in September 2005, as it had not been put to Mr Brandusoiu that such a policy was in place.

57 The leading authority on the operation of s 53(1) is Shellharbour Golf Course v Wheeler [1999] NSWSC 224. In that decision, Studdert J said (at [33]):

… as I construe s 53(1) once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication.

58 His Honour went on to consider the meaning of the word ‘authorise’ as it appears in the context of s 53(1). He cited with approval the following passage from the judgement at Gibbs J (at 12-13) in, University ofNew South Wales v Moorhouse (1974-75) 133 CLR 1 where the meaning of ‘authorize’ in the setting of s 36 of the Copyright Act1968 was considered:

The word ‘authorize’, in legislation of similar intendment to s 36 of the Act, has been held judicially to have its dictionary meaning of ‘sanction, approve, countenance’: Falcon v Famous Players Film Co. [1926] 2 KB 474 at 491' Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 at 489, 497… It can also mean ‘permit’, and in Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 ‘authorize’ and ‘permit’ appear to have been treated as synonymous. A person cannot be said to authorize an infringement of copyright unless he has some power to prevent it: Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR at 497-498, 503. Express or formal permission or sanction, or active conduct indicating approval, is not essential to constitute an authorization; `Inactivity or “indifference, exhibited by acts of commission or omission, may reach a degree from which an authorization or permission may be inferred”’: Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR at 504. However, the word ‘authorize’ connotes a mental element and it could not be inferred that a person had, by mere inactivity, authorized something to be done if he neither knew nor had reason to suspect that the act might be done. Knox CJ and Isaacs J referred to this mental element in their dissenting judgments in Adelaide Corporation v Australasian Performing Right Association Ltd. Knox CJ (1928) 40 CLR at 487 held that indifference or omission is ‘permission’ where the party charged (amongst other things) ‘knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done'. Isaacs J apparently considered that it is enough if the person sought to be made liable ‘knows or has reason to know or believe’ that the particular act of infringement `will or may' be done.”

59 His Honour declined to adopt a narrow interpretation of the term, ‘authorise’ and commented (at [58]):

… bearing in mind the nature of the Anti-Discrimination Act, I consider that the word "authorise" should be given an equally broad meaning to that given to the word in the copyright cases. Accordingly, it seems to me that for the purposes of s53 the word "authorise" embraces "sanction, approve, countenance and permit". Permission may be inferred from inactivity and indifference where the person sought to be made liable is aware that some particular behaviour may occur.

60 Introduction of policy The Hotel admits that for an indeterminate period commencing in November 2005, it had instructed staff to refuse entry to persons of Middle Eastern or Islander background unless they were known to them. It denies that this policy was in operation when Mr Tupou claims he was refused entry to the Hotel.

61 In a statement filed in these proceedings, Mr McGuiness denied directing the second or third respondent, or members of their staff, to screen entry on race grounds. He made no mention in that statement of the race-based door policy, conceded by the Hotel in the course of these proceedings.

62 In oral evidence, Mr McGuiness was insistent that the policy was not introduced until after Melbourne Cup day, November 2005. He said he remembered it well as his mother had been seriously ill at the time. He could not recall when the policy was disbanded. He said it was not in writing but communicated to staff through regular briefing meetings and individual briefings.

63 According to Mr McGuiness, the policy had been introduced in an effort to allay police concerns about gangs operating in the vicinity of the Hotel. He claims that had the Hotel not taken action, significant restrictions would have been imposed on its licence, which would have cost ‘a fortune’.

64 The Hotel tendered in these proceedings a letter dated 7 November 2005 addressed to Mr McGuiness from Constable Christopher Evans of the licensing division of the NSW Police. Officer Evans wrote that there had been a reduction in assaults ‘directly relating to the Hotel following the section 104 conference held on 19 September 2005’. (Section 104 of the Liquor Act 1982 provides that where there is a written complaint of undue disturbance in the neighbourhood of licensed premises the Liquor Board may convene a conference to hear submissions relating to the complaint.) He commented that while there had been an initial reduction in the number of assaults after the problem was first raised with the Hotel in August 2004, that the improvement had been short-lived. He wrote that if the Hotel agreed to a number of proposed conditions that the s 104 complaint would be held over for 12 months. None of the proposed conditions related to a race-based door policy.

65 Supervision of staff Mr McGuinness described himself as a very ‘hands on’ manager. He said he was present at the hotel virtually ‘around the clock’. He said he had been especially vigilant about the entry of patrons since the police had raised concerns over the operation of the Hotel’s license.

Findings and conclusions: Was the act ‘not authorised’?

66 Browne v Dunn We deal first with the argument put for the Hotel that it is not open to Mr Tupou to now assert that T & B security guards were acting in compliance with the policy in August 2005, as Mr Brandusoiu had not been asked in cross-examination if the policy was in operation at the relevant time.

67 Browne v Dunn is not authority for the proposition that a party is prevented from raising in submissions any matter not put to an opponent’s witness in cross-examination. Here the case squarely put for Mr Tupou was that he was refused admission on the grounds of race, not intoxication and that this was authorised by the Hotel. Mr Brandusoiu gave evidence after the Hotel announced to the Tribunal that a race based door policy was introduced in November 2005. While some allowance ought be made for the fact that he was self-represented it could not reasonably be argued that he (or the Hotel) did not have an opportunity to address this point, or the issue of authorisation at large.

68 Scope of s 53(1) The Hotel contends that s 53(1) requires it to establish that the offending ‘act’, namely the specific act complained of, was not authorised, not ‘like conduct at large’. Here it is argued that the Hotel had no knowledge of ‘the act(s)’ and therefore it could not be argued that it was authorised, even if established that the policy was in place at the relevant times.

69 In our view, this is a strained reading of the provision. If the offending ‘act’ falls within a class of conduct, that was authorised it seems to us that ‘the act’ was also authorised, as a consequence of falling within the scope of authorised conduct.

70 In summary, we conclude that having regard to the conduct of the Hotel both before and after the offending treatment that the Hotel has not established that it did not authorise the conduct about which Mr Tupou complained.

71 When was the policy introduced? Despite Mr McGuinness’s denials, it seems to us more likely than not that a policy, formal or otherwise, was in operation on both occasions Mr Tupou was refused entry to the Hotel for these reasons.

72 First, the date nominated by the Hotel for the introduction of the policy, mid-November 2005, sits uncomfortably with the chronology surrounding Mr Tupou’s complaint. The Hotel was notified of the complaint on 17 September 2005. One month later solicitors acting for the Hotel advised the Board that ‘it was not the policy of the Hotel to discriminate against persons on the basis of race’ and that, ‘hotel management does not condone the conduct complained of’. It seems to us implausible that three weeks after strenuously disavowing having a race-based door policy the Hotel would, by its own admission, go ahead and formulate and introduce such a policy.

73 Second, the treatment afforded Mr Tupou was entirely consistent with the offending policy. This conclusion is drawn from the fact that not only were Mr Tupou and his friends barred from entry but there is credible evidence from them that a Samoan security officer told them in Samoan that ‘No brothers’ [meaning Samoans or Islanders] were allowed in. That evidence had the ring of truth. We also accept the evidence of Mr Tupou that the security guards appeared to be embarrassed by this policy. That may have been especially the case for the Samoan security guard. Mr Tupou’s direct evidence of what he was told was bolstered by his observations of men of Middle Eastern appearance also being turned away ahead of him and Mr Kerrison. It does not follow of course that because the conduct of the guards, was entirely consistent with the policy that it was in force throughout the periods Mr Tupou was refused entry. However, it gives rise to a strong inference that it was in operation.

74 Third, the existence of the policy throughout the relevant time is entirely consistent with the evidence before us about the concerns of the Hotel’s management. The evidence reveals that rightly or wrongly they believed, that ‘Lebanese and Islanders’ were the source of many of the problems that had brought the Hotel to the attention of the licensing police.

75 Conduct after the act Even if we are wrong on this point and the policy was not introduced until November 2005, it does not follow that the s 53(1) defence is available to the Hotel. First, the official adoption of a race-based door policy in November 2005 can only be seen as a clear authorisation of the offending treatment about which Mr Tupou complained. Second, there is no evidence that once the complaint was bought to the Hotel’s attention it took reasonable steps to satisfy itself of the truth or otherwise of Mr Tupou’s allegations. What steps were taken is far from clear. Through its solicitors, the Hotel told the Board that ‘our client was unable to verify from its security personnel the accuracy of the complaint made by Mr Tupou’. As we have noted Mr Brandusoiu claimed he first heard of the complaint through the Board. At its highest, the Hotel’s evidence is that after being notified by the Board it contacted the second and third respondents and when told that the conduct about which Mr Tupou complained did not occur, did not enquire how they had investigated Mr Tupou’s claims and let the matter rest.

76 In summary, we conclude that having regard to the conduct of the Hotel both before and after the offending treatment that it has not established that it did not authorise the conduct about which Mr Tupou complained.

77 Were ‘all reasonable steps’ taken to prevent the conduct? Despite that finding, liability might still be avoided if the Hotel can establish that it took all reasonable steps to prevent the second and third respondents breaching the Act: s 53(3).

78 In submissions, Mr Tupou identified a number of steps that he contends had been available to the Hotel to prevent the offending conduct. These include:

Inquiring if the guards had been provided training on the Hotel’s obligations under the Act.

Organising such training for the guards.

Making clear to the employer of the guards that to maintain its business, patrons must not be turned away on the grounds of race.

Advising the guards directly that turning people away on the basis of race would not be tolerated.

79 There is no evidence that these or any other ‘reasonable steps’ were taken by the Hotel. In the absence of such evidence, the s 53(3) defence is not made out.

Did the second and third respondents aid the Hotel in discriminating against Mr Tupou?

80 Section 52 of the Act operates to extend liability for acts of unlawful discrimination beyond the principal wrongdoer. It makes it unlawful for a person to ‘cause, instruct, induce, aid or permit’ another person to do an act that is unlawful by reason of a provision of this Act’.

81 The issue for determination is whether the second and/or third respondent ‘aided’ the Hotel in refusing Mr Tupou entry.

82 On the facts as accepted by us, the guards refused to permit Mr Tupou to enter the Hotel on account of his race. There is no evidence of any steps taken to dissuade the Hotel from implementing its race-based door policy. In so doing, each respondent aided the Hotel in its breach of the Act. Accordingly, both are liable pursuant to the provisions of s 52.

Relief

83 As we have found that Mr Tupou’s complaint of unlawful discrimination on the ground of race is substantiated, we must now determine what, if any, orders should be made under s 108(2).

84 Mr Tupou seeks an order under s 108(2)(a) for general damages in the amount of $6000. In addition, he seeks aggravated damages.

85 The general principles underlying an award of damages under the now repealed s 113 of the Act (relevantly similar to s 108(2)) was discussed in Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 (at [33]) and Nesci v TAFE Commission of NSW (No 2) [2005] NSWADT 183 (at [135], [136]).

86 General damages The task of assessing damages for non-economic loss in a case of unlawful discrimination is notoriously difficult. This case is no exception. The alleged ‘injury’ is often, as in this case, intangible and difficult to measure. Wilcox J commented in Hall v Sheiban (1985) ALR 503 (at 543) that merely because damages for matters such as injury to feelings, distress, and humiliation ‘are not susceptible to mathematical calculation’, this is not a basis to ignore these items. (See also Alexander v Home Office [1998] 2 All En 118 at 122.)

87 In Dell v Dalton (1991) 23 NSWLR 528, Handley JA (with whom Kirby P and Priestley JA agreed) said (at 533) that the assessment of non-economic loss involves ‘questions of fact and degree, and matters of opinion, impression, speculation and estimation, calling for the exercise of commonsense and judgment’.

88 Mr Tupou’s evidence, as accepted by us, is that on both occasions that he was refused entry to the Hotel, he felt embarrassed, hurt, shocked and belittled. It was made plain from his evidence that Mr Tupou found the treatment deeply insulting and hurtful which explains why he took the apparently uncharacteristic step of lodging a formal complaint. The initiating complaint to the Board gives a flavour of the intensity of Mr Tupou’s distress: ‘I am sick of being looked upon like a threat because of my nationality and spoken to like I am stupid and dumb.’ On any objective and reasonable assessment, his treatment was offensive.

89 There is no evidence, and nor is it asserted, that Mr Tupou suffered economic loss or required medical treatment or counselling. The need for medical treatment is a relevant factor to be taken into account in any award for general damages. However, it does not follow, as we understand the Hotel to suggest, that evidence of such is a prerequisite to an award for general damages.

90 It is argued for the Hotel that the quantum of damages sought is excessive having regard to the nature of Mr Tupou’s injury and awards in comparable matters. It contends that a more appropriate award would be in the range of $800 to $1200. It argues that Mr Tupou’s complaint must be seen as falling at the low end of ‘the range’ as any injury suffered was at best fleeting, as evidenced by the fact that on both occasions he was able to continue his evening out with companions. In support, the Hotel cited the table contained in the CCH Service, ‘Australian and New Zealand Equal Opportunity Law & Practice’ at ¶89-950 and the decision in Sutherland & ors v Van Kooten [2001] NSWADT 121.

91 The Hotel’s contention that the Tribunal should be guided by awards in comparable matters sits uncomfortably with the decision of the High Court in Planet Fisheries Pty. Ltd. v La Rosa (1968) 119 CLR 118. That case involved an appeal against an award for general damages in a personal injury matter arising out of an action in negligence. The Court held that an award for general damages can only be set aside on appeal if it is ‘out of proportion to the circumstances of the case’. Their Honours, Barwick CJ, Kitto, J and Menzies J, ‘emphatically reject[ed]’ the submission that ‘in deciding whether or not an award of general damages was excessive, we should ‘seek out a norm or standard in the decisions of this Court for the assessment of general damages, by comparison’. Their Honours, said (at 125-126):

It is the relationship of the award to the injury and its consequences as established in the evidence in the case in question which is to be proportionate. It is only if, there being no other error, the award is grossly disproportionate to those injuries and consequences that it can be set aside. Whether it is so or not is a matter of judgment in the sound exercise of a sense of proportion. It is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases.

92 Planet Fisheries has not been without its critics. Handley JA, for example, commented in James Hardie & Co Pty Limited v Arthur Austin Newton; State Rail Authority of NSW v Arthur Austin Newton (1997) 42 NSWLR 729 (at 732)

Some day the High Court will explain why awards of general damages for personal injuries should not be compared, as required by Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, but defamation awards can be compared with awards for general damages in personal injury cases (Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44), and sentences of co-offenders must be compared (Lowe v The Queen (1984) 154 CLR 606; Jones v The Queen (1993) 67 ALJR 376)… in my opinion justice to litigants requires that awards for similar injuries be broadly comparable.

93 (See also the comments of Kirby P (as he then was) in Moran v McMahon (1985) 3 NSWLR 700 (704 - 708).)

94 The introduction of the Civil Liability Act 2002, has limited application of Planet in NSW. It is now permissible for a court or tribunal to refer to earlier decisions of that or other courts (or tribunals) in determining damages for non-economic loss in personal injury matters (s 17A). Proceedings bought under the Anti-Discrimination Act are exempt from the operation of Civil Liability Act (s 3B(g)). Planet therefore will still be relevant assuming of course that a complaint of unlawful discrimination is considered to be akin to a tort. As observed by the Appeal Panel in Mooney, the long held view that a complaint of unlawful discrimination is akin to an action in tort, and therefore governed by the common law rules which govern the award of damages in actions in tort, was rejected by Spigelman CJ, in obiter, in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 (at 245-246).

95 But even if it is open to us to consider comparable cases, we are not persuaded that an award of $6000 is outside ‘the range’.

96 The CCH Table cited by the Hotel contains a summary of damages awarded by Australian courts and tribunal exercising jurisdiction in the area of equal opportunity between 1984 and 2006. It is not, nor does it purport to be, comprehensive and includes only those decisions reported in the service (see par. 89 ¶ 960). From an examination of the limited number of decisions relevant to this jurisdiction included in the Table, it is not immediately apparent to us that an award of $6,000 is outside ‘the range’.

97 Nor, in our view does Sutherland & ors v Van Kooten support the proposition advanced for the Hotel. In that case, the tribunal found that Mr Sutherland and two companions had been refused service in the Hotel on account of their race. Two of the complainants were awarded general damages of $6000 and one was awarded $4000. None received medical treatment. One complainant suffered from depression, which the tribunal found was linked to the act of unlawful discrimination. It is not clear from the Hotel’s submissions on what basis it is claimed that the ‘injury’ suffered by the two complainants who did not suffer from depression or any other medical condition as a consequence of the hotel’s discriminatory treatment but nevertheless received awards of $6000and $ 4000 was materially different to that suffered by Mr Tupou.

98 The overriding consideration must always be an assessment of the complainant’s injury. Here there is compelling evidence of injury to feelings, distress, and humiliation. Having regard to the evidence we accept the argument put for Mr Tupou that the sum of $6000 is appropriate in the circumstances of this case.

99 Aggravated damages In addition, Mr Tupou seeks an award for aggravated damages against all three respondents. Aggravated damages may be awarded where a respondent’s conduct after the initial ‘wrong’ may have caused the damage suffered by the complainant to be aggravated or increased.

100 It is argued for Mr Tupou that by asserting that he had been refused entry because of intoxication, when there was no basis for that claim, the Hotel and T & B Security, added to his hurt and distress.

101 From day one, T & B security has raised intoxication as a defence. The only issue in contest is whether the Hotel did as well.

102 The Hotel denies this. It says that its conduct has at all times been exemplary and points to its initial response to the Board, which extended an apology to Mr Tupou.

103 The summary of the complaint, prepared by Deputy President Hennessey following the initial case conference held on 22 November 2006, contains under the heading, ‘Notification of the defence’: ‘[applicant] was intoxicated - that was the basis for his refusal, not race’. It is unclear from that notation whether all respondents endorsed that defence.

104 No mention of the intoxication defence was made in the Hotel’s submissions.

105 While the evidence is finely balanced, we could not be satisfied that the Hotel did claim that Mr Tupou was intoxicated.

106 We accept that Mr Tupou’s hurt and distress was prolonged by T & B’s claim that he had been intoxicated. We also accept the evidence given by Mr Tupou that he was distressed by the lack of any response to his complaint by the third respondent.

107 We find that Mr Tupou’s hurt and distress was aggravated by the conduct of the second and third respondents and that an award of aggravated damages is therefore appropriate. The quantum proposed by Mr Tupou, namely $2000 in relation to the second, and $1000 in relation to the third, is in our view appropriate in the circumstances of this case.

108 Joint and several liability The Hotel submits that all respondents are separate and distinct corporate entities and liability therefore should be shared jointly.

109 Section 53(2) provides that where a principal and agent are subject to liability they are ‘jointly and severally subject to that liability’. It seems to us, therefore, that liability in respect of the substantive complaint should be expressed as one to which all respondents are jointly and severally liable.

Orders

1. The complaint of discrimination on the ground of race is substantiated.

2. The First, Second and Third Respondents are to pay the Applicant within 21 days, the sum of $6000, for which they are jointly and severally liable.

3. The Second Respondent is to pay the Applicant the sum of $2000, within 21 days for the aggravation of the Applicant’s injury.

4. The Third Respondent is to pay the Applicant the sum of $1000, within 21 days for the aggravation of the Applicant’s injury.