Yeo v Brisbane Polo Club Inc
[2014] QCAT 66
•19 February 2014
| CITATION: | Yeo v Brisbane Polo Club Inc [2014] QCAT 66 |
| PARTIES: | Peter Yeo (Applicant) |
| v | |
| Brisbane Polo Club Inc (Respondent) |
| APPLICATION NUMBER: | ADL008-12 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 10 February 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Oliver |
| DELIVERED ON: | 19 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The proceeding is dismissed. |
| CATCHWORDS: | Anti-Discrimination – where applicant a person with an attribute requiring a wheelchair for mobility – where respondent failed to provide access to its premises for a person who requires a wheelchair – whether the exemption contained in section 46(2) of the Anti-Discrimination Act applies to the respondent – whether the respondent is an association that does not carry out its purposes for the purpose of making a profit – where the respondent does in fact make a profit – where profit for the benefit of members and maintenance of club facilities Anti Discrimination Act 1991 (Qld) ss 10, 46(2) and 206 Yeo v Brisbane Polo Club Inc [2013] QCAT 261 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Represented by Mr Wilson of counsel instructed by Samuel Barber. |
| RESPONDENT: | Represented by Mr Murdoch of counsel instructed by McCullough Robertson Lawyers. |
REASONS FOR DECISION
On 10 July 2012 the Brisbane Polo Club filed an application to dismiss Mr Yeo’s proceeding against it for unlawful discrimination. Mr Yeo contends that he was the subject of discriminatory conduct by the Polo Club because it failed to provide him, a person with an impairment, goods and services on occasions in July and September 2010 and June 2011. The substance to his complaint is that being a person who requires a wheelchair for mobility, the Polo Club did not provide wheelchair access to the club premises. He says this conduct amounts to unlawful discrimination with section 10 of the Anti Discrimination Act 1991 (Qld).
The basis for the application to dismiss the proceeding is that the Polo Club claims it is entitled to an exemption under section 42(2) of the Act because it is an association established for social, cultural, sporting, recreational, and other similar lawful purposes and it does not carry out its purposes for the purpose of making a profit.
The Polo Club had previously brought an application to strike out the complaint under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 in reliance on the same application that is now before me. However because, it seems, the Tribunal considered it would be necessary to make findings of fact and, relied on cases like Dey v Victorian Railways Commissioner’s (1949) 78 CLR 62 which establishes that a proceeding should only be dismissed in the clearest of cases and where all the facts are not before the decision maker, it was premature to make a final decision. Therefore the Tribunal held that the application to strike out was “misplaced” and what the Polo Club should have done was to have applied for a final determination of a preliminary point that is, whether the Polo Club is exempt under s 46(2). The strike out application was dismissed with directions for the filing of further material and the question of whether the “exemption” applied was to be determined by way of a preliminary hearing.
As it transpired, most of the material that was before the original Tribunal Member on the strike out application is now before me save for one further very short affidavit of Mr Rose filed on 13 August 2013. There is also a statement of evidence of Mr Yeo filed on 29 July 2013 which mainly goes to the circumstances of discrimination claim. The parties rely on the same submissions they filed in the earlier applications as well as the oral argument at the hearing.
The factual matters referred to in the earlier decision,[1] and the affidavit material filed clearly demonstrates there is a prima facie case that Mr Yeo has been treated less favourably because of his attribute of being a person who requires a wheelchair for mobility. For the purposes of this application, this is not challenged by the Polo Club.
[1]Yeo v Brisbane Polo Club Inc [2013] QCAT 261.
As the parties conceded at the commencement of the hearing the only issue I have to determine is whether s 46(2) applies to the Polo Club. The section is in the following terms:-
(2)In this section a reference to a person who supplies goods and services does not include an association that:-
(a)Is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purpose; and
(b)Does not carry out its purposes for the purpose of making a profit.
The applicant concedes that the Polo Club is an association established for the purposes set out in sub paragraph (a) above. The only issue then is whether subsection (b) applies that is whether it is an association that does not carry out its purposes for the purpose of making a profit. The onus is on the respondent to prove, on the balance of probabilities that the exemption applies[2].
[2]Anti Discrimination Act 1991 s 206.
Constitution of the Polo Club
Mr Lynton Rose, the current President of the Polo Club has filed a number of affidavits. His evidence frankly acknowledges that the Polo Club has two sources of income, firstly from membership fees and from income producing activities. Both sources of income are to ensure the club makes a profit at the end of each financial year to ensure the Club remains financially viable and meets the objects of its constitution for its members. The income producing activities include weddings, private functions, dinners, use of bar facilities and the dining room for members and guests.
The constitution of the Polo Club[3] states that the objects of the Polo Club are to:-
a)Foster fellowship and social liaison amongst business and professional men and women;
b) Provide an environment within the Polo Club’s premises at Naldham House which will ensure the high standard of conduct and dress is maintained at all times by Members and their guests;
c)Cultivate and encourage mutual support of members at a business, professional and social level;
d)Conduct polo tournaments and provide the appropriate social environment for members, their families and guests;
e)Foster and support a polo team or teams be known as the Brisbane Polo Club team and to participate in polo tournaments in South East Queensland and elsewhere;
f)Encourage and assist young persons to play polo; and
g)Promote polo in South East Queensland.
[3]Exhibit 1 Annexure ‘Exhibit LR1’.
He describes Polo Club activities as including those matters referred to above including members lunches and dinners, specialty lunches, jazz nights, Christmas lunch, Mothers day lunch as well as cocktail evenings, and other social activities including attending polo tournaments. All of these activities are designed to foster the fellowship and social liaison amongst members.
He says that all private functions including weddings must be hosted by a member of the Polo Club who is then responsible for the activity. An example is the function Mr Yeo attended held by a political party at the Polo Club premises. The un-contradicted evidence is that this function was arranged and booked through an existing member. Similarly for weddings and other private functions, the Club premises must be booked through a member. It is not the case, on the evidence of Mr Rose, that a member of the public can book the Polo Club for a private function. It is from these activities that the Club’s income is derived as well as membership fees.
Counsel for the Polo Club referred me to the President’s report for the 2011 and 2012 financial years which demonstrates that the Club actively engages in activities which further the objects set out in the constitution. This includes setting aside an area in the Polo Club for ‘club level members, social activities and dinners involving attendances at musical productions and the establishment of the book club’.
It is also relevant that if the Polo Club were to be wound up, the constitution does not permit the distribution of income or property to its members. All of the evidence that was put forward by the Polo Club in the affidavits of Mr Rose and by reference to the constitution and accounts demonstrate that although the Polo Club has made profits in recent years those profits are for the benefit of its membership to further the objects contained in the constitution.
The applicant’s counsel cross-examined Mr Rose. Mr Rose was criticised for the lack of activity in the promotion and fostering of polo as a sport and participation in tournaments in South East Queensland. Mr Rose readily admitted that the Club, in past, had conducted an annual polo event at North Mclean but given the geography of North Mclean and to some extent the testing financial times in past years, members were reluctant to travel that far to engage in that activity or to participate as spectators. More recently, the Club has formed an association with the Brisbane Turf Club to conduct polo events at the Doomben racecourse the first of which was conducted last year. It is expected that these events will continue in the future. It was also acknowledged that where possible, polo teams will be sponsored by the Polo Club and the Board of the Club must include an active polo playing member. There are also members who are actively engaged in the sport although it is fair to say that polo, as a sport, is somewhat exclusive.
It is submitted on behalf of the applicant, that the Polo Club has now moved steadily away from its primary purpose that is, engaging in the sport of polo to simply providing an exclusive facility in Brisbane’s central business district for its members. Profit generated from Polo Club activities is for the member’s individual benefit rather than to further the objects of the constitution. To some extent this is true but fostering the sport is only one of the objects of the constitution.
I accept Mr Rose’s evidence. I formed the view he was endeavouring to provide as much information about the Club’s finances and activities to assist me in determining this matter.
Financial Information and Taxation Status
The Polo Club has been categorised as a non profit organisation for the purposes of income tax which means that the income, or profit from the Polo Club is non taxable.
The financial records which are also annexed to Mr Rose’s statement show that in the financial years 2009-2012 the Polo Club has generated a significant cash flow from sales and membership. An example is the 2011 financial year which demonstrates gross income of $691,000.00 with a trading profit of $104,000.00.
In 2012, gross income was $945,000.00 with a trading profit of $76,597.00. Income from membership fees in 2012 was $819,000.00.
When one again looks at the financial statements, it is apparent, for example in the 2012 year, that the profit from total sales that is all Polo Club activities, bar, dining room, functions etc was only $113,560.00.
Gross of sales – $1,243,713.00 - cost of sales $1,130,153.00. Similarly in 2011 the gross profit from sales was $665,607.00. It would seem that the profit from these activities has significantly reduced in 2012.
Quite obviously the Club’s promotion of its premises for the purposes of functions and member usage is to ensure that it does make a profit and remains viable. This has a flow on benefit to members being the maintenance and improvement of the Club premises and the introduction of activities which promote the objects of the Club which are identified in the President’s message with the yearly accounts.
To suggest that the Polo Club makes a profit for the purposes of section 46(2)(b) for the benefit of members to improve their facility so they have a better club environment is not only consistent with the objects contained in the constitution, it is also good business management.
Does the Polo Club carry out its purposes for the purposes of making a profit?
What is demonstrated from the evidence, particularly that of Mr Rose and the financial material referred to above, is that the Club has in recent years made a profit. It has achieved this though membership fees and various commercial activities. It would seem that on the current level of membership fees, without these additional commercial activities the Club would not survive financially. They are therefore, income/profit making activities which enable to Club actively promote the objects of its constitution referred to above.
This is, it seems to me, what Member Roney QC was referring to in David Yohan representing PAWES (Providing Awareness With Education and Sport) v Queensland Basketball Incorporated and Brisbane Basketball Incorporated (No.2) [2010] QCAT 471. In this case there was an allegation that PAWES basketball teams were unfavourably treated by being excluded from the Brisbane Basketball competition in the period April 2009 until September 2009. Queensland Basketball contended that it was exempt from the application of the Anti-Discrimination Act because it was a not profit organisation and therefore the exemption to section 46(2) applied. In his reasons the Member considered the constitution and purposes of Brisbane Basketball, the financial affairs of the organisation and then looked at the policy to which the Anti-Discrimination Act was directed. Having decided it was appropriate to decide the application in a summary way, as is the case here, he concluded that even though a profit was made this did not mean that the club carried out its purposes for the purpose of making a profit.
I agree with Mr Roney’s comment that the relevant enquiry that one has to make to decide if the entity is a not for profit organisation is one which is not limited solely to the purpose for which the entity was established or reference to a purpose set out in the constitution or other rules of the association either as its purpose or as to the way in which income derived by the association is dealt with. So, the enquiry must be as to whether the purposes of the organisation or the entity are actually carried out for the purpose for which it is established. He went on to say:-
In my opinion the fact that both organisations derived revenue whether or not it relates to a profit, or a deficit any given year, is not determinative of the question. The fact that such surpluses as are achieved are carried forward as accumulated assets or that those surplus funds in turn derive income by way of interest does not mean that they are carrying on their purposes for the purpose of making a profit, or are clubs which carry out their purpose for the purpose of making a profit.
Conclusion
There is no dispute that the Polo Club is carrying out activities in accordance with the objects of its constitution. The complaint seems to be that the Club has moved away from its primary function, if that was ever a primary function, that of engaging in the sport of polo. The Club does this but to a lesser degree. This of itself does not, in my view, change its characterisation as an entity whose primary functions are for the benefit of its members, albeit not to the extent as it might have otherwise done in the past with respect to the sport of polo.
There is no basis to characterise the profits that are now generated as being other than for the purposes of meeting the objects of the constitution for the benefit of its members and therefore I have come to the conclusion that the Polo Club is entitled to the exemption under section 46(2) of the Act.
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