Sutherland & ors -v- Van Kooten [2001] NSWADT 121

CITATION: Sutherland & ors -v- Van Kooten [2001] NSWADT 121 DIVISION: Equal Opportunity Division APPLICANTS Tony Sutherland PARTIES: Paul West Darren Toomey RESPONDENT Tim Van Kooten FILE NUMBER: 991055; 991056; 991057 HEARING DATES: 15/05/2000, 16/05/2000, 17/05/2000 SUBMISSIONS CLOSED: 08/10/2000 DATE OF DECISION: 08/08/2001

BEFORE: Innes G - Judicial Member; McDonald O - Member; Farmer L - Member APPLICATION: Race Discrimination - Goods and Services - Victimisation MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Morrison-Liddy v Director, Department of TAFE (1989) EOC 92-246 CASES CITED: Waterhouse v Bell (1991) 25 NSWLR 99 Alexander v Home Office (1988) 1 WLR 968 APPLICANT REPRESENTATION: M Fraser, barrister RESPONDENT D Graham, solicitor ORDERS: 1 Complaints of discrimination on the grounds of race and victimisation by Paul West are made out against the respondent; 2 A complaint of discrimination on the ground of race is made out by Darren Toomey against the respondent; 3 A complaint of discrimination on the ground of race is made out by Tony Sutherland against the respondent; 3 The Tribunal orders that the respondent pay damages to the complainants in the following amounts, on or before 28 days from the date of publication of this decision-; Paul West $22659.30; Darren Toomey $4000; Tony Sutherland $6000

Introduction 1 On 15, 16 and 17 May 2000 the Equal Opportunity Division of the Administrative Decisions Tribunal heard complaints referred to it by the President of the Anti-Discrimination Board made by Messrs Paul West, Darren Toomey, and Tony Sutherland against Tim Van Kooten, the licensee of the Mendooran Hotel. 2 The complaints consisted of allegations of discrimination on the grounds of their race in breach of the NSW Anti-Discrimination Act, and in the case of Mr West a further complaint of victimisation under that Act. The complaints arose from incidents which occurred at the hotel on 15 March 1997. The three complainants alleged that they were all refused service at the hotel on the grounds of their race. 3 The complaints, lodged respectively on 19 March 1997, 18 July 1997, and 30 July 1997, were investigated by, and attempts were made at conciliation by, the President of the Anti-Discrimination Board. These attempts were unsuccessful, and the complaints were referred for hearing in 2000. 4 The Tribunal determined that these complaints should be heard together, which they were on 15, 16 and 17 May 2000. Background 5 The complainants were in the case of Messrs West and Toomey players in, and in the case of Mr Sutherland the President of the Gilgandra Rugby League Football Club. On 15 March 1997 the club played a trial game against the Binnaway club involving its first and reserve grade players. These players, all adults according to the evidence of the three complainants, travelled to the game in a hired and unmarked bus and a number of cars. 6 Because of the weather at that time of year the game started later than usual. Messrs West and Sutherland gave evidence that the game commenced around 4.30 to 5.00 pm, and finished around 7 pm. After cleaning up at the ground the Gilgandra team went to the Binnaway hotel for a drink and a barbecue. 7 Messrs Toomey and West, accompanied by another player Mr Guy Williams, left Binnaway in Mr West's car some time after 8 pm, arriving in Mendooran around 9 pm where they stopped for some food and refreshments. 8 Mr West went to the hotel while the other two went to the cafe across the road to order food. They then joined Mr West in the hotel and this was the time at which the alleged first incident occurred. 9 The bus carrying a number of players, as well as Mr Sutherland, left Binnaway some time later, and arrived in Mendooran some time between 9.30 and 10.00 pm. Mr Sutherland alleged that he went into the hotel, and this is when the second alleged incident occurred. Evidence For The Complainants Evidence of Paul West 10 Paul West gave evidence that he is an Aboriginal person, and has lived in Wellington all his life, and that he has been an Aboriginal Community Liaison Officer with the NSW Police Force for some years. He stated that he was returning from Binnaway in his car, a misty blue ford station wagon, with Darren Toomey and Guy Williams after the game on the 15th of March 1997 because the bus was going to Gilgandra but they lived in Wellington. He said that Darren Toomey was driving the car. He stated that they arrived in Mendooran at around 9 pm. He said that he had not drunk any alcohol at Binnaway, but had had several beers in the car. 11 He stated that he went through the front door of the hotel and into the toilets while the other two went into the cafe across the road. He said that whilst in the toilets, using the urinal, someone grabbed him by the arm and said "This is not a public toilet. Now get out." He said "Mate, I am only passing through, and I want to buy a couple of beers, and I will be on my way." The man then left the toilet area. 12 He then went into the bar to buy some beer. There he met Messrs Toomey and Williams. He did not mention what had taken place in the toilets to them because he thought that if he carried out his intention to buy some beer the man would see that he had been telling the truth and the matter of using the toilets would not be taken further. 13 He walked up to the bar and said to the man, who was the same one who had grabbed him in the toilet area, and whom he later determined was Tim Van Kooten "Two long necks please?" 14 Mr Van Kooten said "This is not a public toilet. I don't serve you people in here any way so get out." Mr West said "What do you mean?" and Mr Van Kooten repeated his response in similar terms. Mr West said "Are you refusing to serve me because I am an Aboriginal?" And Mr Van Kooten said "yes"" Mr Toomey then said "Mate, this is the 90's, you can't do this sort of thing." Mr Van Kooten then said "This is my pub. I can serve who I want when I want. Now leave." Mr West then said "We are going. But what is your name?" Mr Van Kooten said "Bill Smith." 15 After this conversation Mr West and the others left the bar. They noted that the licensee's name on the sign outside was Tim Van Kooten. 16 Mr West stated that the three players gave Mr Van Kooten no reason to refuse them service. They were not disorderly nor intoxicated. He asserted that they were refused service because they were Aboriginal people. 17 The three friends went straight to the police station where they reported what had happened to Constable Martin. They had to wait for a while because he was not there when they arrived. After this they returned to the cafe where they collected their food, and took it back to the car where they ate it. They saw the bus arrive carrying others from the Gilgandra team, and when it stopped they got out of their car and walked across the road to it. Mr West said that he did not wave the bus down, and that he did not get on the bus. 18 After those on the bus were also refused service Mr West assisted to encourage those travelling on the bus to get back on board and leave rather than causing problems at the hotel. Mr West stated that he saw Constable Martin again at that time when the crowd from the bus were milling around. 19 Mr West confirmed that there were only two women travelling on the bus, both of whom had very young children with them. He said that there were no teenagers in the party, as only the first and reserve grade teams had played. 20 Mr West stated that he had not possessed a card identifying him as an Aboriginal Police Officer for about six years. He said that his card had been destroyed. He stated that he certainly did not have one with him on the night the incident occurred. 21 Mr West stated that he found the way Tim Van Kooten had spoken to him and his friends embarrassing, downgrading, humiliating and shameful. He explained the profound impact that the incident had had on him. He stated that he suffered stress, aggravated anxiety and depression. 22 He advised that, in March 1998, he had been called to Dubbo by a senior police officer, and it was then that he found that he had been accused of impersonating a police officer. He was appalled by this allegation. He said the officer in question said that he had to counsel him about the incident in Mendooran. He felt as if it was the Police Force treating him the same way as he had been treated at the hotel. This was the reason that he had complained to the Ombudsman. 23 After this he was off work on sick leave from 2 March 1998 until 29 May 1998. He produced medical certificates to support this evidence. He stated that he lost six weeks sick leave during this time. He stated that this leave was worth $8659,30. He provided documentary support for the leave he had taken. 24 Mr West explained that his stress had all come to a head at this time (a year later) when he was informed that Sergeant Williams, who had been investigating Mr West's complaint to the Liquor Board, had recommended that Mr West be counselled. Mr West said that this reinforced his distress as it appeared that he was being regarded as a perpetrator of, rather than a victim of, the incident. 25 Mr West explained the respect that he had gained from Aboriginal and non-Aboriginal people throughout the community through his work and his playing of Rugby League. He stated that the incident still worried him some three years after the event. He said that he is now more sensitive to racial issues. Evidence Of Darren Toomey 26 Mr Toomey gave evidence that he is an Aboriginal person and was, at the time of the hearing, employed as an Aboriginal Student Support Officer with TAFE. At the time of the incidents he lived in Wellington. 27 He confirmed that he travelled in Mr West's vehicle, a ford station wagon, after the game, and that he was the driver. As such he did not drink any alcohol after the game. 28 When they arrived at Mendooran he went with Mr Williams to order food at the cafe, and then met Mr West in the bar of the hotel. He said that the bar was "packed" and very noisy, although it went quiet when they walked in. 29 He said that he stood about 2-3 metres back from the bar with Mr Williams while Mr West attempted to buy some beer, but that he could hear the conversation between Mr West and Mr Van Kooten quite clearly. In fact he at one stage participated in it as described above in Mr West's evidence. 30 He confirmed, almost exactly, the words used by Mr West, Mr Van Kooten and himself. 31 Mr Toomey recalled Mr West showing Mr Van Kooten some kind of card, but he did not see it and did not know what it was. 32 Mr Toomey stated that he had intended to put some money into the poker machine while they were waiting for their food to be prepared. He said that he was not given the chance to do this. 33 Mr Toomey agreed that the three players then left the bar and went to the police station and, after waiting for the constable to return, made a complaint. They then returned to the cafe, collected their food, and ate it in the car. 34 Mr Toomey confirmed that the three players were still present when the bus arrived. He said that Mr West did not flag it down. After it pulled up the three players walked across the road to it. 35 He remembered a number of people getting off the bus, and he saw Mr Van Kooten shut the doors of the hotel. He did not encourage those on the bus to try to go in. He stated that he only recalled the players, the driver and Mr Sutherland being on the bus. 36 Mr Toomey stated that he had grown up in Wee Waa where there was racism, but that he got on well with the non-Aboriginal community through football. He stated that he was the only Aboriginal person in his year at school to complete the HSC. 37 He said that the incident had caused him to re-think his position in the community. He said that he was embarrassed, and that the incident remains a source of distress and anger to him. Evidence of Guy Williams 38 Mr Williams gave evidence that he was an Aboriginal person, and had participated in the game at Binnaway, and that he travelled back with Messrs Toomey and West in Mr West's car. Mr Toomey drove. They were driving to Wellington, and stopped at Mendooran for drink and food. The car pulled up on the right-hand side of the road near the cafe. 39 Mr Williams confirmed that he and Mr Toomey had gone to the cafe while Mr West went to the hotel. Messrs Toomey and Williams then went to the hotel while their food was being cooked and saw Mr West in the bar. 40 Mr Williams stated that there was a fair amount of noise in the bar. He did not recall all of the conversation which occurred, but remembered that the barman refused Mr West service, saying that he was "smart" with Mr West. He did recall Mr West asking if the refusal was "because of the colour of our skin" and the barman saying "I don't serve you sort of people". He said this last comment was made as they were leaving, and that he recalled the barman asking them to leave. He said that Mr West did not show the barman his police liaison officers card. 41 Mr Williams confirmed the complaint to the police once the constable had returned, coming back to the car to eat, and the bus arriving. He said that it pulled up on the left-hand side of the road near the hotel. He said that he and his companions were still in the car when the bus arrived. 42 Mr Williams said that Mr West did not flag the bus down. He recalled walking over to the bus with the other two and talking to some of the passengers. He said that by this time some of the people had got off. He then recalled the publican, who had spoken to Mr West, shutting the front doors and walking around to the side of the hotel premises. 43 He then remembered Mr Sutherland talking to passengers on the bus, telling them to calm down and do nothing stupid. The bus left, and the three players followed in Mr West's car.