CITATION: LD -v- Voltime Pty Limited (trading as Cronulla Hotel) [2001] NSWADT 5 revised - 19/11/2003 DIVISION: Equal Opportunity Division APPLICANT PARTIES: LD RESPONDENT Voltime Pty Limited (trading as Cronulla Hotel) FILE NUMBER: 991037 HEARING DATES: 19/12/2000, 20/12/2000 SUBMISSIONS CLOSED: 12/20/2000 DATE OF DECISION: 12/20/2000 BEFORE: Ireland G - Judicial Member; Strickland J - Member; Cox R - Member APPLICATION: Homosexual Discrimination - Goods and Services MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Penfold v Penfold. APPLICANT REPRESENTATION: In person RESPONDENT A Moses, barrister ORDERS: 1. Complaint is dismissed; 2. Costs of the respondent assessed on a party and aparty basis be paid by the complainant 1 This inquiry by the Tribunal results from a reference to it of a complaint by the Anti-Discrimination Board. That reference was made under s. 90(1) of the Anti-Discrimination Act 1977 (the Act). The reference followed a request to the President Anti-Discrimination Board by the complainant following a decision of the President that the complaint be declined because it lacked substance. 2 The matter first came before the Tribunal in June 2000 on an application by the respondent under s. 111(1) of the Act in which the respondent sought an order that the complaint be dismissed on the ground that it was misconceived and lacked substance and was vexatious and frivolous. That application was declined by the Tribunal and as a consequence the Tribunal has heard over the last two days the evidence of the complainant in support of his complaint. 3 The complaint was made by the complainant to the Anti-Discrimination Board by a letter received by the Board on 18 April 1996. The Tribunal has satisfied itself that the complaint investigated by the Board and referred by the Board to the Tribunal for this inquiry relates solely to the complaint as formulated in the letter received on 18 April 1996. 4 An examination of that letter shows that the complainant stated that on 23 February 1996 there were certain altercations at the Cronulla Hotel and as a consequence the complainant was ejected from the hotel and it was decided by the respondent that he be barred from the hotel. The respondent, Voltime Pty Limited, is a company which owns the hotel and consequently is the party responsible for the actions of its staff in relation to the complainant. 5 In his evidence to the Tribunal, the complainant related that on 23 February 1996 he with several of his friends was standing at a table in the lower bar area of the hotel where they were talking and drinking. A patron of the hotel, identified as Mr Finnane, came from where he was sitting at an adjoining table to a position adjacent to the complainant. Mr Finnane picked up the glass of beer of the complainant and poured the contents of the glass over the complainant. The complainant stated that Mr Finnane said to him the words "Nancy boy" and made no other statement to Mr LD. Mr LD stated that he did not reciprocate against Mr Finnane, who returned to his table. Mr LD went to a security guard who was seated at the end of the bar and told him what Mr Finnane had done. The security guard said he had not noticed what had occurred. 6 Some time later, about 6.30pm, Mr LD stated that he proceeded to the next level at the hotel, which comprised a disco bar and that he stood at the bar where he had a drink and talked to a friend. Whilst he was at the bar, Mr Finnane came up to him and Mr LD stated that Mr Finnane punched him in the face. Mr LD stated that he then proceeded to have a scuffle with Mr Finnane which involved the two persons rolling on the floor. At that time, another security guard came and Mr LD stated that the security guard picked him up and propelled him to the exit door and ejected Mr LD from the premises. Mr LD stated that no action was taken by the security guard against Mr Finnane. 7 Mr LD then stated in his evidence that on the next morning he went back to the hotel, went to the office of the hotel where he spoke to a security guard and the security guard told him that he had been barred from the hotel. Mr LD stated that he did not respond and that he left the hotel. 8 Mr LD stated that as far as he was aware, no action had been taken by the respondent to bar Mr Finnane from the hotel. 9 In relating to the Tribunal the circumstances that have been described, there are certain discrepancies to the description given by Mr LD in the letter he sent to the Board in which he made his original complaint. In that letter, Mr LD stated that he was told on 23 February 1996 by the security guard that he was barred from the hotel but in his evidence he stated that it was not until he went to the office of the hotel on the following morning that a security guard told him that he had been barred. Further, the letter to the Board states that Mr LD went to the bar upstairs on the night of 23 February 1996 and while talking to a friend Mr Finnane came up and punched him in the eye and that a fight then started. In his letter, however, he stated that he was at the bar and that Mr Finnane punched him and they then scuffled on the ground, and as we have earlier related the security guard picked up Mr LD and physically carried him to the door of the hotel. 10 In his evidence Mr LD said that he did not return to the hotel again until December 1996. However, Mr LD in his evidence on the second day before the Tribunal produced a copy of diary notes made by the hotel staff which showed that Mr LD went to the hotel on Sunday 3 March 1996 and on that occasion he went to the reception area and he was told that he had been barred from the hotel. The diary notes also show that on that day he made two phone calls to the hotel requesting names of hotel staff. This latter situation is consistent with his letter of complaint to the Board. 11 In his evidence, Mr LD referred to a transcript of evidence which formed part of the President's report to the Tribunal. The transcript related to proceedings against Mr LD in the Sutherland Court on 18 April 1997. Mr LD sought to rely on this evidence to show that Mr Bryant, the licensee of the hotel, had received complaints from staff and patrons of the hotel relating to Mr LD' conduct at the hotel. This testimony referred to an occasion in April 1996 when Mr LD was again barred from the hotel. In his evidence, Mr LD denied that he was present at the hotel in April 1996 and he denied that he was barred from the hotel at that time. 12 The significance of these discrepancies are not in the view of the Tribunal such that they destroy the basis of Mr LD' complaint. However, they do raise in the minds of the Tribunal questions as to the degree to which Mr LD' testimony should be accepted. The Tribunal is not suggesting that Mr LD has misled the Tribunal deliberately but it considers that he at times becomes confused in relation to particulars of the actual complaint and the circumstances of the complaint. 13 Mr LD relied on a letter written by his solicitor to Mr Bryant on 15 March 1996 in which it was alleged that Mr LD had been barred from the hotel based "on false information relating to sexual discrimination". The letter sought a report on the allegations against Mr LD "which prompted your decision". No reply was received to this letter. Mr LD submitted that the failure to answer the letter supported his claim that the barring from the hotel was based on discrimination. It is not possible for the Tribunal to draw this inference. Mr Bryant was under no obligation to answer that letter. He may have been prompted by various reasons to ignore the letter, none of which related to discrimination. 14 In further support of his claim of discrimination, Mr LD referred to the treatment of Mr Finnane by the respondent on 23 February 1996. Mr LD stated that no action was taken to eject Mr Finnane from the hotel after the scuffle with Mr LD. Mr LD also alleged that Mr Finnane was not barred from the hotel. Mr LD produced no evidence to support this allegation and the Tribunal is not able to determine whether Mr Finnane was barred or not. The respondent did not produce evidence to the Tribunal and there is no evidence to refute Mr LD' statement of the failure of the respondent to eject Mr Finnane. 15 Having regard to Mr LD' evidence that Mr Finnane threw a punch which started the scuffle, the Tribunal is satisfied on the balance of probability that Mr LD was treated differently by the respondent's staff following the breakup of the scuffle between him and Mr Finnane on that occasion. 16 The basis of the complaint of discrimination relies on a finding that the actions of the respondent arose out of a presumption by members of the hotel staff that Mr LD was a homosexual person. 17 It is necessary to have regard to the relevant provisions of the Act in order to determine the relevance of the particulars of the complaint as alleged by Mr LD and the application of those circumstances, if established, to the relevant provisions of the Act. The Tribunal refers to s. 49ZG(1)(a) which describes the constituents of a complaint of discrimination on the ground of homosexuality. Section 49ZF under the heading "Interpretation" provides: "A reference in this Part to a person's homosexuality includes a reference to the person's being thought to be a homosexual person, whether or not he is in fact a homosexual person or not." 18 If the Tribunal should find that the circumstances constituted discrimination on the ground of homosexuality, or in this case presumed homosexuality, it is necessary then to examine the provisions of s. 49ZP of the Act to determine whether the discrimination was unlawful as it occurred in the provision of goods and services, as described in that section. Sections 49ZG and 49ZP provide as follows: S. 49ZG (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of homosexuality if, on the ground of the aggrieved person's homosexuality or the homosexuality of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not homosexual persons, or who do not have such a relative or associate who is a homosexual person, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's homosexuality if it is done on the ground of the person's homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons. S.49ZP Provision of goods and services It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of homosexuality: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. 19 In examining the question of the presumed homosexuality of Mr LD, the only evidence of a reference to Mr LD being presumed a homosexual is the statement by Mr LD that when Mr Finnane threw the contents of the glass of beer over him, he called Mr LD "Nancy boy". It should be pointed out that Mr Finnane is not an employee of the hotel. 20 In addition, Mr LD points to a memorandum written by a supervising investigator of the Department of Gaming and Betting on 24 October 1997, in which the investigator records a phone conversation with Mr Bryant "regarding the circumstances in which LD was barred from the hotel". The memorandum records that Mr Bryant stated that Mr LD had been barred from the hotel on three occasions "for his behaviour". The report contains the following statement: "Mr LD has made a number of loud references to his homosexual behaviour on the hotel premises. These references have given rise to a number of complaints from staff members and patrons." 21 Mr LD sought to demonstrate that this report established that the respondent was aware of his homosexuality in February 1996. 22 In the view of the Tribunal, it is not possible to draw this inference from that report. The report relates to a statement by Mr Bryant made to an investigator twenty months after the events complained of. It is equivocal as to the dates on which Mr LD made reference at the hotel to his homosexuality. 23 The Tribunal is unable, from the evidence, to conclude that the actions complained of by him on 23 February 1996 related to any of the staff or to Mr Bryant, presuming he was homosexual. 24 For Mr LD to succeed in his complaint, it is necessary for him to satisfy the Tribunal that the unfavourable treatment to which he was subjected on 23 February 1996, that is, that he was ejected from the hotel following a scuffle with Mr Finnane and Mr Finnane was not ejected from the hotel, was on the ground of Mr LD' presumed homosexuality. 25 For the reasons given, the Tribunal is not satisfied that Mr LD has established that the respondent presumed that Mr LD was a homosexual. Even if a number of the staff had made such an assumption, and the evidence does not establish this, Mr LD has not on the evidence established to the satisfaction of the Tribunal that the action taken by the respondent on 23 February 1996 in ejecting him from the hotel and in its decision following that ejection to bar him from attending the hotel was based on a presumption that Mr LD was a homosexual. The evidence shows that he was ejected from the hotel following the altercation at the disco bar of the hotel and did not occur as a result of a presumption of his homosexuality. Similarly, the decision to bar him from the hotel was a consequence of the altercation and not a consequence of his presumed homosexuality. 26 In these circumstances, the Tribunal finds that the complaint made by Mr LD relating to his treatment at the hotel on 23 and 24 February 1996 has not been substantiated as a claim involving discrimination. Accordingly, the Tribunal directs that the complaint be dismissed. 27 The Tribunal has considered the application by the respondent for an order for indemnity costs in this matter. 28 The Tribunal is conscious that s. 114(1) of the Act expressly excludes the making of an award for costs except as provided by s. 111(2) and subsection (2) of s. 114. In the view of the Tribunal, s. 111(2) is not appropriate to be considered in the context of this costs application. It is necessary therefore to have regard to the provisions of subsection (2) of s. 114 which provides that where the Tribunal is of the opinion that in a particular case there are circumstances that justify it doing so, it may make such an order as to costs and security for costs as it thinks fit. 29 A section in similar terms has been the subject of judicial consideration on several occasions. The most noteworthy is a decision of the High Court in the matter of Penfold v Penfold. In that case the High Court emphasised that the subsection obviously requires application in the appropriate circumstances, otherwise it is meaningless and that there must have been in the contemplation of Parliament circumstances that would be considered to justify the making of an award for costs. There has to be something different but falling short of exceptional to justify the Tribunal in making such a decision. 30 The Tribunal has considered the submissions made to it by the counsel for the respondent. In the view of the Tribunal, the history of the consideration of this complaint by the Tribunal demonstrates that there has been exceptional references to the Tribunal in terms of the number of occasions on which the matter has required intervention by the Tribunal in order to have the complainant apply himself to the specification of his complaint. 31 In the normal course, a complaint would require no more than two such references by the Tribunal in order to have the definition of the claims of the complainant specified. There were seven occasions on which this matter has been brought before the Tribunal by way of preliminary reference in order to have clarification of the claimant's claim. The respondent has emphasised that on most of those occasions, if not on all of those occasions, the complainant has demonstrated an inability to apply himself to the definition of his complaint. This undoubtedly has added unnecessarily to the costs of the respondent in preparing its case. 32 In these circumstances, the Tribunal considers that it is appropriate that the Tribunal should make an award of costs in favour of the respondent. 33 The Tribunal is also mindful that it is necessary to demonstrate to parties generally that they have an obligation to the other parties to the proceedings, and indeed to the Tribunal, to ensure at all times that a complaint which is the subject of inquiry by the Tribunal is specified with sufficient particularity at an early stage, so that the time and costs expended on the examination of the complaint are kept to a minimum. 34 This complaint is an example of the extremes to which time and costs can be unnecessarily expended in that regard. The Tribunal has tried to point out strenuously to the complainant during this hearing the need for the complainant to confine his submissions and his evidence to the actual complaint the subject of the inquiry. 35 Having said that, the Tribunal is also mindful that it would not be in its opinion appropriate that it make an order on the basis of an indemnity order for costs. We think that would be going to too extreme a position. Having regard to the fact that the complainant was unrepresented, a fact which of course should not penalise the respondent but nonetheless regard should be had, it would be an undue penalty on the complainant to require the complainant to pay costs on an indemnity basis. 36 In the normal course of a complaint, the Tribunal would expect there to be at least two preliminary hearings in order to determine the case management of the matter, so that the Tribunal would not direct that the costs of the first two proceedings on 18 August 1999 and 27 October 1999 be the subject of an order for costs. 37 In relation to the s. 111 application, that application of the respondent's was not successful and it would not be appropriate that the costs of the respondent relating to that application be paid by the complainant. 38 Again in the normal course, a complaint of this nature would be expected at the hearing to take at least one day. The respondent has pointed to the fact that half of the first day was wasted because the complainant did not attend. It would be appropriate in the view of the Tribunal that it order the complainant to pay only for the first day's hearing of this inquiry. 39 The Tribunal accordingly directs that costs of the respondent assessed on a party and party basis be paid by the complainant. The amount of such costs if not agreed within twenty one days from the date on which an assessment of the costs is given to the complainant, to be assessed in accordance with the provisions of the assessment of costs under the Legal Practitioners Act and that such costs, when assessed, be paid by the complainant within twenty one days of the date of the assessment. The amount of such costs shall exclude the costs associated with the preliminary hearings before the Tribunal on 18 August 1999 and 27 October 1999 and shall also exclude the costs of the respondent relating to the applications of the Tribunal under s 101(1) of the Act and shall exclude the hearing before the Tribunal of this inquiry on this date, today, 20 December 2000. 19/11/03 Decision revised to anonymise applicant's name DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.