Walker v Cormack - [2010] FMCA 9

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALKER v CORMACK & ANOR

[2010] FMCA 9

HUMAN RIGHTS – Sex discrimination – male excluded from gymnasium class – female only class – special measure to redress substantive inequality – victimisation – membership of gymnasium cancelled.

Human Rights and Equal Opportunity Commission Act 1986, s.46PH(1)
Sex Discrimination Act 1984, ss.5, 7D, 22, 86, 105 and 94
Sex Discrimination Amendment Bill 1995

Jacomb v The Australian Municipal, Administrative, Clerical and Services Union [2004] FCA 1250

Applicant:

PHILIP WALKER

First respondent:

GEORGE CORMACK

Second respondent:

U2 FITNESS CENTRE

File Number:

MLG 1183 of 2008

Judgment of:

O’Dwyer FM

Hearing dates:

24 April 2009 & 28 August 2009

Date of Last Submission:

28 August 2009

Delivered at:

Melbourne

Delivered on:

27 January 2010

REPRESENTATION

The Applicant:

In person

Solicitor as Counsel for the Respondents:

Mr Reid on 24 April 2009

Mr French on 28 August 2009

Solicitors for the Respondent:

Coulter Roache

ORDERS THAT:

The application filed on 26 September 2008 is dismissed.
The applicant pay the respondents’ costs, which costs include witness expenses of $15 for Ms Karen Knight, and $200 for Mr Justin Evans.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1183 of 2008

PHILIP WALKER

Applicant

And

GEORGE CORMACK

First Respondent

U2 FITNESS CENTRE

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant alleges the respondents breached the provisions of the Sex Discrimination Act 1984 (the Act) when they:
·changed a long-running mixed-sex class at the respondents’ gymnasium to a female-only class and excluded him (ss 5, 22 and 105 of the Act); and
·terminated his membership of the gymnasium (ss 94 and 105 of the Act).
The application comes to this court after his complaint to the Human Rights and Equal Opportunity Commission was terminated, pursuant to section 46PH(1) of the Human Rights and Equal Opportunity Commission Act 1986, on the basis that there was no reasonable prospect of the complaint being settled by conciliation.
The applicant’s complaints fall under two heads; namely, unlawful discrimination based on sex, and victimisation.
The application names two respondents, the first being Mr George Cormack, and the second being the business name by which the gymnasium is known, U2 Fitness Centre. The sole proprietor of the business name is Mr George Cormack, and nothing is gained from having named the business name as a respondent. Accordingly, reference hereafter is made only to Mr Cormack as being the only properly named respondent.
The remedies sought by the applicant on a successful prosecution of his application are:
·a letter of apology to be sent out to all members of the gymnasium;
·a letter of apology to be sent to him;
·reinstatement of his membership to the gymnasium, and a guaranteed membership for three years at generally applying fees for such membership; and
·$20,238 compensation, being the calculated loss to the applicant arising from travel to a more distant gymnasium that was forced upon him by the alleged unlawful conduct of the respondent.

The Facts

Hereafter, a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FMCA 9
Decision Date: 27 January 2010

CaseChat Overview and Summary

The applicant, Philip Walker, brought an action against George Cormack and U2 Fitness Centre, alleging breaches of the Sex Discrimination Act 1984 (the Act). Walker claimed that his exclusion from a female-only class at U2 Fitness Centre and the subsequent termination of his membership constituted unlawful discrimination and victimisation based on sex. The case was dismissed by O’Dwyer FM in the Federal Magistrates Court.

The legal issues in this case centred around whether the establishment of a female-only class by the respondent constituted unlawful discrimination under sections 5 and 22 of the Act and whether the termination of Walker's membership was a form of victimisation under section 94 of the Act. The court also considered whether the respondent's actions could be justified as "special measures" under section 7D of the Act.

O’Dwyer FM found that the introduction of the female-only class was a legitimate "special measure" aimed at achieving substantive equality, as it addressed a known reluctance among some women to exercise in the presence of men. The court accepted the respondent's evidence that the class was intended to create an environment conducive for women to participate in gym activities, which they might otherwise avoid. This decision was supported by industry advice suggesting a market opportunity in providing such classes. The court also found that the respondent's decision to terminate Walker's membership was based on his disruptive conduct during the class on 29 January 2008, not in retaliation for any complaint he had made about the class. The court held that Walker's behaviour was sufficiently disruptive to warrant the termination of his membership, and therefore, there was no victimisation under the Act.

In conclusion, the Federal Magistrates Court dismissed Walker's application, finding that the respondent's actions did not constitute unlawful discrimination or victimisation as alleged. The court ordered Walker to pay the respondents' costs, including witness expenses.

Orders