Webb v Surf Life Saving New South Wales

[2020] NSWCATAD 232

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Webb v Surf Life Saving New South Wales [2020] NSWCATAD 232

Hearing dates:

5 August 2020

Date of orders:

22 September 2020

Decision date:

22 September 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C A Ludlow, Senior Member

Decision:

Leave to proceed with the complaint of victimisation is refused.

Catchwords:

EQUAL OPPORTUNITY - application for leave to proceed with complaint - complaint of victimisation – whether fair or just to grant leave – whether respondent is a body carrying on activities otherwise than for profit

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Corporations Act 2001 (Cth)

Cases Cited:

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Strong v The Hospitals Contribution Fund of Australia Ltd [2004] NSWADT 176

Tallong Park Association Inc v Sutherland [2007] NSWADTAP 19

Texts Cited:

None cited

Category:

Procedural and other rulings

Parties:

Adam Webb (Applicant)
Surf Life Saving New South Wales (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Respondent (Self Represented)

File Number(s):

2020/00193370

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. Mr Webb, the applicant in these proceedings, seeks the leave of the Tribunal to proceed with his complaint under s 96 of the Anti-Discrimination Act 1977 (the AD Act). On 5 September 2019 the President of the Anti-Discrimination Board of NSW received a complaint under the AD Act from Mr Webb against the respondent, Surf Life Saving NSW (SLSNSW). The applicant alleged that he had been victimised by having his membership of the Mollymook Surf Life Saving Club (MSLSC) suspended. He claimed that he was victimised for supporting a female club member who had been discriminated against by the MSLSC.

2. The President declined the complaint on 29 May 2020 on the basis that:

1. SLSNSW is a voluntary body within s 57 of the AD Act which provides an exemption for such bodies in respect of any rule or practice which restricts admission to membership.

2. The complainant’s membership was suspended in accordance with the membership rules and practices of the SLSNSW.

3. The conduct of the respondent did not disclose a contravention of the AD Act.

3. On 18 June 2020 the applicant requested that the complaint be referred to this Tribunal under s 93A of the AD Act.

Legislation and principles governing the grant of leave

4. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the AD Act).

5. Section 92 provides:

“92 President may decline complaint during investigation

(1)   If at any stage of the President’s investigation of a complaint—

(a)   the President is satisfied that—

(i)   the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii)   the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii)   the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv)   another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v)   the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi)   the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii)   it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b)   the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

(2)   The President, in a notice under this section, is to advise the complainant of—

(a)   the reason for declining the complaint or part of the complaint, and

(b) the rights of the complainant under sections 93A and 96.”

6. Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A).

7. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).

8. Section 96 of the AD Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).

9. Section 50 provides:

“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.

10. Section 57 provides:

“57 Voluntary bodies

(1)   In this section, body means a body, the activities of which are carried on otherwise than for profit and which is not established by an Act, but does not include—

(a) a co-operative registered under the Co-operatives National Law (NSW) or a society under the Friendly Societies Act 1989, or

(b) a friendly society registered under the Friendly Societies Act 1989, or

(c)   a building society or credit union registered under the Financial Institutions (NSW) Code, or

(d) a co-operative housing society registered under the Co-operative Housing and Starr-Bowkett Societies Act 1998, or

(e)   a registered club.

(2)   Nothing in this Act affects—

(a)   any rule or practice of a body which restricts admission to membership of that body, or

(b)   the provision of benefits, facilities or services to members of that body.”

11. Section 104 provides:

“104 Proof of exceptions

Where by any provision of this Act or the regulations conduct is excepted from conduct that is unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any proceedings before the Tribunal relating to a complaint lies on the respondent.”

The nature of the complaint

12. The following evidence is drawn from documents supplied by the parties. Mr Webb complained to SLSNSW on behalf of a third party against the actions of MSLSC and certain office bearers in August 2018. SLSNSW initiated an investigation. Mr Webb sent an email to SLSNSW on or about 7 September 2018 about his complaint, which he described as harassment and discrimination of a female member. He sent a copy of this email to the Mayor of the local Council.

13. Mr Webb received a “show cause notice” from the Chief Executive Officer of the SLSNSW on 10 September 2018 stating that sending his email of 7 September 2018 to the Mayor was inappropriate and potentially unbecoming of a member and prejudicial to the interests of SLSNSW and/or surf lifesaving and potentially brought surf lifesaving into disrepute.

14. Mr Webb was requested by letter to provide a response to the show cause notice. Mr Webb responded on 14 September and again on 24 December 2018.

15. On 2 January 2019 he was advised in writing by the CEO that his membership of SLSNSW was suspended until further notice “pending you providing me with an acceptable response explaining your prejudicial conduct.”

16. That letter also stated that SLSNSW had investigated Mr Webb’s complaint of discrimination and harassment and referred evidence of sexual harassment to the police. SLSNSW had issued a report to MSLSC asking it to implement certain recommendations, review sanctions imposed on the female member, not readmit a member and undertake training.

Evidence and submissions of the applicant

17. Mr Webb submitted that he had been victimised for alleging that the MSLSC had not adhered to its Code of Conduct which required it to ensure safety from harassment for its members. He had disclosed information about his claims of harassment and discrimination to other bodies in an attempt to obtain a remedy.

18. He submitted that the suspension of his membership was a detriment within the meaning of s 50 of the AD Act. The suspension had the effect of preventing him from attending or joining any surf club in NSW. This meant he could not accompany a family member to any social or recreational outing at a surf club. He was prevented from maintaining his lifesaving awards and certificates. He had also lost the personal benefit of volunteering and providing a community service and could not become a Professional Ocean Lifeguard.

19. He submitted that SLSNSW was a company but is not exempted by s 57 of the AD Act.

Evidence and submissions of the respondent

20. The respondent SLSNSW submits that its conduct in suspending Mr Webb’s membership is exempt from the AD Act as it is a body within s 57(1) and its conduct concerning membership under the organisation’s membership rules is exempted under s 57(2). The respondent agrees that SLSNSW is a company limited by guarantee but states that it is a registered charity and is not a body established by an Act.

21. SLSNSW relies on its rules governing membership and disciplinary proceedings. Under clause 2 of the membership application the member acknowledges that if the membership application is accepted, he or she will be bound by and agree to comply with the SLS Rules.

22. Clause 8.8 of the MSLSC Constitution provides:

“The Constitution is a contract between the Mollymook Surf Life Saving Club Inc and its Members.

(a)   Members acknowledge and agree that:

(i) This constitution constitutes a contract between each of them and the Club and that they are bound by this Constitution and its regulations.

(ii) They shall comply with and observe this Constitution and the regulations.

(iii) By submitting to this Constitution and the regulations they are subject to the jurisdiction of the Mollymook SLSC, the South Coast Branch, SLSNSW and SLSA.”

23. Clause 6.3 of the MSLSC Constitution provides:

“The Club and the Members acknowledge and agree:

…

(f)   Where the Club considers or is advised that a Member has allegedly:

…

(ii)   acted in a manner prejudicial to the Objects and interests of the Club and/or surf lifesaving; or

(iii)   brought the Club, any Surf Life Saving Club, or surf lifesaving (including the Branch, SLSNSW and/or SLSA) into disrepute;

(g)   the Club may after allowing the Member a reasonable opportunity to explain, adjudicate and if necessary penalise the Member with such penalty as it thinks appropriate.”

24. In this case however the evidence indicates it was SLSNSW which suspended Mr Webb’s membership. SLSNSW relies on clauses 17 and 18 of the Constitution for its power to suspend.

25. The Constitution of SLSNSW states at clause 1 that SLSNSW is a company and at clause 2 that it is “a charitable community service based organisation”. It comprises some 129 clubs, 11 regional branches, tens of thousands of individual members and other operational support units. Clause 38 states that the income and property shall be applied solely towards the promotion of SLSNSW and its objects and no portion shall be paid by of dividend, bonus or profit to members or Directors.

26. SLSNSW disputes that Mr Webb has been subjected to any detriment.

Whether the conduct of the SLSNSW is exempted under s 57

27. I will first consider whether the conduct of the SLSNSW is exempted from the operation of the AD Act by s 57. The respondent relies upon Tallong Park Association Inc v Sutherland [2007] NSWADTAP 19. In that case the Appeal Panel affirmed the view of the Tribunal below that in order to come within s 57, a body must meet three criteria:

1. the activities of the body must be carried on "otherwise than for profit"; and

2. the body must not be established by an Act; and

3. the body must not be a body specified in s 57(1)(a)–(e).

28. Firstly are SLSNSW’s activities carried on “otherwise than for profit”? It is required to pursue commercial arrangements, but only “as are appropriate to further the interests of surf lifesaving” (clause 2(s) of the Constitution). It is also a registered charity. It has multiple objects relating to surf life saving and these include:

1. Conduct, encouragement, promotion and administration of surf lifesaving, marine safety and preservation of life;

2. Conduct or commission research and development for improvements in methods of life saving to improve and safeguard the use of the acquatic environment;

3. Strive for governmental commercial and public recognition of SLSNSW as the authority on aquatic safety;

4. Promote the involvement and influence of surf life saving standards;

5. Recommend and support awards to members and others, in recognition of rescues from the sea, deeds of exceptional bravery and other distinguished services and acts; and

6. Extending to members the opportunity of education and participation in surf life saving competitions.

29. In Strong v The Hospitals Contribution Fund of Australia Ltd [2004] NSWADT 176 the Tribunal said that:

“The intention of an exception such as that in s 57 is as was said in Gardner at paragraph 12:

to protect the right of freedom of assembly so that a voluntary organisation could chose those persons it wished to be members and deal with those members in any manner that the members agreed, whether or not those activities might appear to persons who are not members of the association to be discriminatory.

…But in our view the term ‘carried on otherwise than for profit’ does not identify a body by reference to its actual financial results each year. It identifies a body by reference to its character. Whether it has a profit or a loss, and whether it calls a profit and surplus and a loss and deficit, the question is “what is it its character? Does it have the character of a relatively small voluntary body, the activities of which could be carried on by an unincorporated association of people for purposes of pursing a common interest? The exception provided for in s57 is, in our view, directed towards such bodies, and that it is bodies with that character that are identified by the term ‘carried on otherwise than for profit’.

([103 – 108])

30. It is unlikely that SLSNSW could be described as “a relatively small voluntary body”. Nevertheless its character, assessed from its objects and activities, is that of a body where the activities are not carried on “for profit” but to further surf lifesaving and safety and some of those activities are carried out by volunteers.

31. In my view therefore SLSNSW’s activities are not carried on for profit.

32. SLSNSW is a company limited by guarantee. It is therefore not established by an Act. The Dictionary to the Corporations Act 2001 (Cth) defines such a company as follows:

"company limited by guarantee" means a company formed on the principle of having the liability of its members limited to the respective amounts that the members undertake to contribute to the property of the company if it is wound up.

33. A company comes into existence when it is registered under the Corporations Act. That Act provides for a company to be registered; it does not establish the company.

34. On the evidence, the SLSNSW is not one of the types of body referred to in s 57(1)(a) – (e).

35. The next issue is whether the complaint concerns any rule or practice of SLSNSW which restricts admission to membership of that body.

36. Clause 17 of the SLSNSW Constitution provides for membership to be discontinued “upon breach of any rule of this Constitution … the Regulations, SLSA constitution or SLSA regulations or any resolutions or determinations…” Before discontinuing membership SLSNSW must first give the accused member the opportunity to explain the breach. Where the member fails to adequately explain or remedy the breach the members membership shall be discontinued. Discontinued membership may be reinstated at the discretion of SLSNSW.

37. SLSNSW submits that it could “temporarily discontinue” membership under clause 17. The correspondence with Mr Webb, however, referred to suspension of his membership, not discontinuance. No end period was put on the suspension but it was said to be “pending you providing me with an acceptable response explaining your prejudicial conduct”. Clause 17 does not expressly permit this measure.

38. Clause 18 provides that where SLSNSW is advised or considers that a member has “acted in a manner … prejudicial to the objects and interests of SLSNSW and/or surf life saving” or “brought SLSNSW or surf life saving into disrepute” it may commence disciplinary proceedings against that member. It appears from the SLSA regulations in particular section 5, that such disciplinary matters are to be referred to and dealt with by a Judicial Committee. There is no evidence that a Judicial Committee was involved in Mr Webb’s suspension. In fact the evidence is that the suspension decision was made by the Chief Executive Officer. I am unable to find any provision for this procedure in the Constitution or Regulations.

39. On the available evidence I cannot be satisfied that the conduct complained of was done under a rule which restricts admission to membership of SLSNSW. If it was done under a practice, there is no evidence of this practice before the Tribunal. Accordingly I am not satisfied that the conduct is exempted under s 57 of the AD Act.

Whether the conduct was victimisation

40. In order for his complaint to succeed, Mr Webb must show that he was subjected to a detriment on the ground that he had done one of the acts in s 50(1) of the AD Act. On Mr Webb’s evidence, taken at its highest, he alleged that certain office bearers of the MSLSC harassed and discriminated against a female member of that club. This would come within s 50(1)(c), namely that he had alleged that SLSNSW or another person had committed an act which would amount to a contravention of the AD Act.

41. Mr Webb has been deprived of his membership. On the available evidence this is a detriment.

42. In the show cause letter of 10 September 2018 the Chief Executive Officer of SLSNSW stated:

“SLSNSW considers that sending your email to Ms Findley is inappropriate. Further, sending the email is potentially

(a)   Unbecoming of a member of SLS; and

(b)   Prejudicial to the interests of SLSNSW and/or surf lifesaving; and

(c)   Potentially brings surf lifesaving into disrepute.”

43. Ms Findlay was the Mayor of the local Council.

44. Following the “show cause” process, Mr Webb’s membership was suspended, according to the letter from the CEO:

“for failing to show cause as to why you considered that you needed to write to Council and State politicians in regard to an internal club dispute”.

45. SLSNSW submits that the evidence shows it suspended his membership not because he lodged a complaint or made an allegation of contravening conduct, but because he sent a copy of his correspondence with SLSNSW to the Mayor, which it claims contravened its rules.

46. In my view this submission is supported by the evidence that SLSNSW investigated Mr Webb’s complaint of discrimination and harassment, issued a report and made recommendations. Mr Webb did not dispute this. The available documentary evidence does not show that it suspended his membership because he had made an allegation, but because he shared his allegation with persons outside the SLSNSW while an investigation was in progress.

47. Given the lack of evidence that Mr Webb’s making of the allegations was the true or real cause of SLSNSW suspending his membership, he is unlikely to be able to establish that he was victimised by SLSNSW on that ground. He has not been able to show that his claim of victimisation is supported by the available evidence and In those circumstances it would not be fair and just to grant leave for his complaint of victimisation to proceed.

Order

1. Leave to proceed with the complaint of victimisation is refused.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 September 2020