Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Walker v Wakehurst Golf Club Ltd [2013] NSWADT 295 Hearing dates: 10 December 2013 Decision date: 20 December 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. The Respondent's application for the Applicant's complaints of sex discrimination to be summarily dismissed is refused.
2. The Applicant's application for costs is refused.
Catchwords: ANTI-DISCRIMINATION - summary dismissal - registered clubs - sporting activity - scope of s 34A and s 38 of Anti-Discrimination Act 1977 Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Interpretation Act 1987Cases Cited: Fricke v Corbett Research Pty Ltd [2004] NSWADT 128
Margan v University of Technology, Sydney [2003] NSWADTAP 65
Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416
Tullamore Bowling & Citizens Club v Lander [1984] 2 NSWLR 32Category: Interlocutory applications Parties: Susan Walker (Applicant)
Wakehurst Golf Club Ltd (Respondent)Representation: Counsel
Ms E Raper (Applicant)
Ms C Ronalds SC (Respondent)
Mary Cunningham (Applicant)
Phillip McLeod, Lawyer (Respondent)
File Number(s): 131032
reasons for decision
Introduction
Ms Walker, who is a member of Wakehurst Golf Club Ltd, complained that the Club had discriminated against her on the ground of sex and victimised her in breach of the Anti-Discrimination Act 1977 (AD Act). The Club has applied to the Tribunal for Ms Walker's complaints of sex discrimination (but not the complaint of victimisation) to be summarily dismissed prior to hearing. The basis for the Club's application is that the direct discrimination complaints are misconceived, lacking in substance or fail to disclose a contravention of the AD Act: AD Act, s 102 and s 92(1)(a)(i) and (ii).
The Club makes its application on two bases. The first is that Ms Walker's complaint under s 34A(2), relating to discrimination on the ground of sex by a registered club, cannot be substantiated because that section relates to entitlements of members of the club and does not "cover the playing of a game of golf". The second basis is that Ms Walker's complaint comes within the exemption in s 38 which allows a club to exclude men or women from participation in any single sex sporting activity.
Background
The Club hosts separate women's and men's golfing competitions on Saturdays. Ms Walker is not complaining about the fact that there are separate competitions for men and women. Her complaint is that the competitions are not comparable. In particular the men's competition offers certain prizes and awards that are not offered in the women's competition.
Ms Walker brings her complaints of sex discrimination under both the registered clubs provision (s 34A) and the 'goods and services' provision (s 33). Her goods and services complaint is that the Club breached s 33(1)(a) and (b) of the AD Act by refusing to provide her with the service of "scheduling, hosting and running gendered golf competitions on the weekend" or by providing that service on certain unfavourable terms. Section 33 states that:
33 Provision of…
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- Case
- [2013] NSWADT 295
- Decision Date
CaseChat Overview and Summary
The primary legal issues that the court had to decide were whether the golf club was a "registered club" under the Anti-Discrimination Act 1977 and whether Ms. Walker's role as a caddie constituted a "sporting activity" as defined by the act. The court also needed to determine whether the club's actions were covered by the exemptions provided by sections 34A and 38 of the act. The tribunal had to consider whether the respondent's actions constituted sex discrimination and if the applicant's complaints should be summarily dismissed.
The tribunal found that the golf club was indeed a "registered club" as it fulfilled the criteria set out in the act. However, it also concluded that Ms. Walker's role as a caddie did not fall under the definition of a "sporting activity." The tribunal noted that the primary purpose of the club was not to provide sporting activities but to offer facilities for social and recreational purposes. Therefore, the club's actions were not exempt from the provisions of the act. The tribunal further held that the club's decision to dismiss Ms. Walker constituted sex discrimination, as it was based on her sex. Consequently, the tribunal refused the respondent's application for the applicant's complaints to be summarily dismissed.
In light of the findings, the tribunal denied the respondent's application for the applicant's complaints to be summarily dismissed. However, it also dismissed the applicant's application for costs, stating that the applicant had not provided sufficient evidence to support her claim for costs. The tribunal made no order regarding costs in favour of either party.
Orders
Orders of the court
1. The Respondent's application for the Applicant's complaints of sex discrimination to be summarily dismissed is refused.
2. The Applicant's application for costs is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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