LD -v- Voltime Pty Ltd (trading as the Cronulla Hotel) (EOD) [2001] NSWADTAP 13

Appeal Panel

CITATION: LD -v- Voltime Pty Ltd (trading as the Cronulla Hotel) (EOD) [2001] NSWADTAP 13 revised - 19/11/2003 APPELLANT PARTIES: LD RESPONDENT Voltime Pty Ltd (trading as the Cronulla Hotel) FILE NUMBER: 019005 HEARING DATES: 16/03/2001 SUBMISSIONS CLOSED: 03/16/2001 DATE OF DECISION: 05/22/2001

Principal matter DECISION UNDER APPEAL: BEFORE: Latham M - DCJ (Deputy President) at 1; Innes G - Judicial Member at 1; Clayton S - Member at 1 CATCHWORDS: no question of law identified MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 991037 DATE OF DECISION UNDER APPEAL: 12/20/2000 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 CASES CITED: APPELLANT REPRESENTATION: In person RESPONDENT A Moses, barrister ORDERS: 1 Appeal dismissed; 2 Leave granted to the respondent to apply for costs on the appeal, by notice to the Registrar and a copy served on the appellant, no later than 21 days from the date of this decision

1 This appeal is brought by Mr LD from a decision of the Tribunal of 20 December 2000 dismissing a complaint of discrimination on the grounds of presumed homosexuality in the area of good and services. The respondent to the complaint and to this appeal is the owner of the Cronulla Hotel, of which the licensee is one Mr Bryant. Mr LD was barred from the hotel by Mr Bryant as a result of an altercation between Mr LD and another customer on 23 February 1996. The circumstances surrounding this event are set out in the Tribunal's decision at paras 4 to 7 inclusive and need not be repeated here. That this was the event giving rise to Mr LD' complaint to the Anti Discrimination Board on 18 April 1996 was central to the Tribunal's decision and is central to the resolution of this appeal. 2 The hearing below extended over one and a half days and was comprised entirely of evidence from the appellant, upon which he was not cross examined, and a number of documentary exhibits including the President's report of 12 April 1999, which itself included the transcript of the proceedings at Sutherland Local Court on 18 April 1997 relating to a prosecution of the appellant for an assault upon Mr Bryant on 31 December 1996. In the course of giving evidence in those proceedings Mr Bryant referred to two earlier occasions when the appellant was barred from the hotel, one in February 1996 (being the subject of the complaint to the Board) and the other in April 1996. The circumstances surrounding the latter of these two occasions were outlined by Mr Bryant in his evidence before the Local Court, but not those relating to the barring in February. 3 At the hearing below and in this appeal, the appellant sought to rely upon the evidence of Mr Bryant in the Local Court, as to the circumstances leading to the barring of the appellant in April 1996, in support of his contention that the real reason for his barring in February 1996 was a presumption on Mr Bryant's part that the appellant was a homosexual, a presumption to which the appellant strenuously objects. There was no other evidence from Mr Bryant before the Tribunal because the respondent did not call him and the appellant did not summons him. Even had Mr Bryant been present as a witness, the Tribunal could not have received evidence of anything which transpired between the appellant and the licensee, staff or patrons of the Cronulla Hotel after 23 February 1996. 4 It must be stated at the outset that the Panel can find no error of law which would incline it towards setting aside the Tribunal's decision. The appellant sought to conduct the appeal as though it were a re-hearing of the complaint. In that regard, much if not all of his submissions to the Panel were repetitive of his case before the Tribunal. It is clear from a reading of the transcript of the hearing before the Tribunal that the appellant failed to appreciate the limits of the Tribunal's jurisdiction, that being an inquiry into the treatment meted out to the appellant on 23 February 1996. The Tribunal's judicial member was at pains to explain to the appellant that the only complaint which had been referred to the Tribunal, and thus the only complaint in respect of which it could exercise jurisdiction, was the complaint to the Board of 18 April 1996 which exclusively concerned the events of 23 February (see pp3 - 19, T/S of 19 December 2000). It appears to the Panel that the appellant still labours under the misapprehension that evidence of what may have occurred at some time after 23 February 1996 should have been before the Tribunal, and should be before this Panel. Despite the Panel's best efforts, we too have been unable to disabuse the appellant of this view. 5 A number of grounds of appeal were foreshadowed in the Notice of Appeal, although the appellant did not address them all in his oral submissions before the Panel. In view of the fact that the appellant was unrepresented and did not expressly abandon any of the grounds to which reference was made in the Notice of Appeal, we have considered them to the extent that we are able, given that they are bluntly stated in the Notice in terms of non-compliance with statutory provisions, devoid of any reference to a particular statute or the manner of non-compliance. 6 Ground 1 in the Notice of Appeal asserts that the actions of all patrons of licensed premises are the responsibility of the licensee and his/her staff. We doubt that the vicarious liability of a licensee is as unqualified as the appellant suggests, but even if it were so, the liability of Mr Bryant for the actions of a customer of the Cronulla Hotel towards the appellant is irrelevant to proof of the appellant's complaint. It is Mr Bryant's actions in barring the appellant and the alleged reason for that decision which grounded the complaint. Assuming Mr Bryant was under a duty to regulate the behaviour of his clientele, a breach of that duty does nothing to establish the motive behind the decision to bar the appellant. 7 Grounds 2, 3, 4, 5, 6 and 7 each allege a contravention of a statutory provision, which we understand to be provisions of the Administrative Decisions Tribunal Act 1997 (the ADT Act). Grounds 2, 3, 6 and 7 may be dealt with compendiously. A contravention of s25 is alleged in that the appellant claims that the conduct of the business of the Tribunal, in the circumstances of his matter, have not been subjected to good administrative practices (Ground 2). Ground 3 claims that there has been a failure to alter an obvious error in the text of the Tribunal's decision (s87). Grounds 6 and 7 are related in so far as they allege a contravention of the mediation provisions of the ADT Act. None of these alleged shortcomings in the administration of the Tribunal, either before or after the hearing of the matter, raise an error of law in the decision itself which calls for the intervention of this panel. 8 A contravention of s70 is alleged in that the appellant was not given a reasonable opportunity to present his case (Ground 4). We understand this ground to have been developed at the hearing of the appeal by way of submissions to the effect that the appellant was denied the opportunity to cross-examine Mr Bryant and other persons in the employ of the respondent. Allied to this Ground is Ground 5 which alleges a contravention of s84, being the repository of the power in the Registrar of the Tribunal to issue a summons for the attendance of a witness. There was no evidence before us to support the appellant's contention in this regard. On the contrary, a reading of the transcript of the hearing below confirms the opposite, namely, that every assistance was rendered to the appellant by the presiding judicial member, so much so in fact, that the respondent's legal representative was moved to caution the Tribunal against providing the appellant with legal advice. At pp52 and 53 of the transcript of 19 December 2000, there appears a lengthy discussion relating to the need for the appellant to summons Mr Bryant and any other witness whom he required, before the resumption of the hearing the following day. On 20 December, the appellant was asked if he had any witnesses to call and he replied that he was "not in the position to get them here." Accordingly, there is no substance to these grounds. 9 Grounds 8, 9 and 10 do not allege any error of law on the part of the Tribunal. 10 At the close of the hearing of the appeal, the respondent reserved its position in relation to seeking costs on the appeal. An award of costs has already been made in the respondent's favour in respect of one day of the Tribunal hearing (paras 38 and 39 of the decision). 11. The formal orders are :- 1. The appeal is dismissed 2. Leave granted to the respondent to apply for costs on the appeal, by notice to the Registrar and a copy to be served on the appellant, no later than 21 days from the date of this decision. 19/11/03 Decision revised to anonymise applicant's name