CITATION: Stanley -v- Wellington Bowling Club Limited [2003] NSWADT 139 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Laurence Stanley RESPONDENT Wellington Bowlilng Club Limited FILE NUMBER: 021083 HEARING DATES: 10/03/2003 SUBMISSIONS CLOSED: 03/10/2003 DATE OF DECISION: 06/11/2003 BEFORE: Conley J - Judicial Member; Quayle C - Member; Bolt M - Member APPLICATION: Race Discrimination - Registered Club MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT D Graham, solicitor ORDERS: 1. That the complaint be dismissed. ; 2. No order as to costs. INTRODUCTION 1 The applicant joined the Wellington Bowling Club Ltd ("the Club") on 10/4/95. 2 He complains that the club unlawfully discriminated against him on 18/5/98 by suspending his membership of the Club for a period of 7 years. 3 On 28 August 1998 the applicant lodged a complaint with the Anti-Discrimination Board ("the ADB") alleging discrimination on the grounds of race. Conciliation was attempted but was unsuccessful. Mr Stanley requested the President refer the matter to the Administrative Decisions Tribunal (" the ADT"). 4 The applicant alleges the respondents treatment suspending him from the Club for a period of 7 years constitutes unlawful discrimination under sections 7 and 20A of the Anti-Discrimination Act 1977 ("the Act"). 5 Mr Graham for the respondent submits the applicant has not received less favourable treatment from the Club which is referrable to race. The Club's decision to suspend the applicant's membership for the 7 year period was due to inappropriate behaviour both on the Club premises and while representing the Club at Club functions. ISSUES 6 The first issue to be determined is whether the Club treated the applicant less favourably than it treated a Non-Aboriginal person in the same or similar circumstances. 7 If the club did treat the applicant less favourably, then the next issue to be determined is whether it was on the grounds of race. APPLICANT'S EVIDENCE Mr Laurence Stanley 8 Mr Stanley gave evidence that he had been attending the Club for about 15 years. He became a Club member on 10/4/95. On 18/5/98 his membership was suspended for a period of 7 years. He stated that he had been suspended for offensive language. He conceded that he did deserve a penalty, that he was in fact in the wrong, but he claimed he did not deserve a 7 year suspension as that was a bit too harsh. 9 He conceded that he had gone to a tournament in Gulgong on 12/8/95 and had been swearing and drunk at the bowling tournament. The applicant agreed that when he returned to the Wellington Club bar he said words to the effect, "Why don't you serve me its because I'm black" and "You fucking white cunt" to a staff member at the Club. He stated that he did not say, "I'll burn your house down". He was requested to appear before the Board. He agreed that on 21/8/95 he received a severe reprimand from the Board of Directors ("the Board") of the Club as a result of complaints received from members of the Gulgong Bowling Club and the Wellington Club. He agreed that the Board had requested in writing that he improve his behaviour. 10 Mr Stanley is alleged to have threatened Mr Darryl Job in the presence of Mr Terry Jackson and Mrs Jackson in October 1995. He is alleged to have said that if he was barred from the Club he would shoot those that barred him. He denied making these threats. He did agree that he said to Ms Margaret Hinton that he would kill any-one who got him barred from the Club and he acknowledged that Ms Hinton was a Board member at the time. He agreed that on 26/10/95 he was suspended from the Club for a period of 12 months after further complaints about his behaviour. 11 The applicant's membership was reinstated on 26/10/96. He agreed that four months later in February 1997 a complaint was received by the Club from a staff member about his drunken behaviour and swearing. A similar complaint was received in March 1997. He agreed he was requested to attend the Board in respect of these complaints and was suspended at the Board's pleasure. 12 The applicant could not recall, but conceded it was possible that he walked through the green without a shirt on, with a beer in his hand and a dog. 13 He conceded that he could have been drunk from the beginning of a bowling game on 8/4/98. By way of explanation the applicant stated that he had put his name on the board indicating he was available for the game and had been left out of the teams. Mr Don Mills (the then President) was contacted at home on the day of the game and had attended to make up numbers to enable Mr Stanley to play. It was conceded that this was the same Don Mills who had made a written complaint to the Club in 1995 about Mr Stanley threatening to shoot those who barred him from the Club. He further conceded that he might have made such a threat if he was drunk. 14 He complained that he was poorly treated by Ms Myrtle Lee, one of the bar staff. She was reluctant to serve him. It was agreed that Ms Lee was herself Aboriginal. 15 Both Mr Don and his wife Louise Clark had been suspended from the club for a period of 7 years. The applicant claims that Mr Don is Aboriginal although he conceded that Mr Don does not hold himself out to be Aboriginal. Louise Clark is not Aboriginal. The applicant stated that they are his friends and he associated with them at the Club. Mr Kevin Stanley 16 Mr Kevin Stanley gave evidence on behalf of his brother, the applicant. Kevin Stanley had been a member of the Club for about 10 years. He had been previously suspended. The term of the suspension was 6 months or until he "fronted the Board". Due to personal circumstances he was away from Wellington and therefore could not appear before the Board for 6 months. Upon appearing before the Board on his return it became clear that the suspension was mistakenly imposed and was lifted immediately. 17 Mr Stanley stated that he has four other members of his family including his son who are Club members in addition to the applicant. Another two family members, now deceased, were former members of the Club. 18 Kevin Stanley said he had heard about other members of the Club who had committed what he regarded as serious acts such as fighting and throwing a glass at a bar-man. He was aware that those people has received lighter punishments than the applicant. Mr Kevin Stanley conceded he was not present when the alleged incidents occurred and only knew about the events because they were "common knowledge". Michelle Larden 19 Michelle Larden stated she formerly lived at 1 Preston Street which is a cottage located on the Club grounds. She lived there with Mr Fred Fineran for 6 weeks. It was there that she met Mr Parkes, who was the Deputy-President at the time of Mr Stanley's suspension. There was an arrangement whereby Mr Parkes would drop off the keys to the Club at the end of each day. The keys would be collected by the bar staff the next morning to open up the Club. 20 Ms Larden claims she had conversations with Mr Graham Parkes between 8/11/02 and 18/12/02 when he visited Mr Fineran. She stated Mr Parkes had said words to the effect you have got to get rid of the "black bastards" as he did not want Aboriginal people at the Club. RESPONDENT'S EVIDENCE Alan Manning 21 Mr Alan Manning gave evidence for the respondent. He stated he had known Mr Stanley for a number of years. Mr Manning stated that as long as the applicant was sober they got along quite well, but if he had had one or two drinks he "would go off something terrible". Mr Manning agreed that he had never had an argument with the applicant. 22 Mr Manning stated that in April 1998 he had seen the applicant with Mr Roberts at the end of the bar in the Club and the applicant seemed very angry, swearing and saying "you fucking cunt" to Mr Roberts. He stated that he had seen the applicant like this a few times. When he had a few beers he would "go off something terrible". On several occasions he had seen the applicant approach people and say words like "aren't you a fucking cunt". He would also "bite you for money or a drink". He had also heard that other members of the Club who were not Aboriginal had "gone off" also, but he was not present at the time and therefore had not seen this. Mr Graham Parkes 23 Mr Graham Parkes gave evidence for the respondent. He is the green-keeper for the Club. He is also a former President. He was Deputy-President at the time of Mr Stanley's suspension. He became President when the then President of the Club Leo Thomas had "stood down" when the applicant was suspended for 7 years. 24 Mr Parkes himself resigned as President on 21/12/02 as he claims he was constantly harassed by the applicant. Prior to Christmas in 2002 Mr Stanley had followed him down the street and said, "look at that white fucken dog in front of me". He would also drive around and shake his fist and say, "I'll get you white cunt". Mr Parkes claimed that after Mr Stanley was barred from the Club he threatened Mr Parkes with the words, "I'll burn you out and bring you down and bring 12 blackfellas around to bash you up". On another occasion about three years ago he threatened to sue Mr Parkes and the Club. 25 Mr Parkes stated that he was Aboriginal and that this was probably known amongst Club members as his father was Aboriginal. The Club did not ask prospective members if they were Aboriginal when considering membership applications. He denied stating to Ms Larden that he hated Aboriginals and that they should not be allowed in the Club. 26 Mr Parkes gave evidence about Club members whose membership had been suspended. Michael Buttsworth 27 Mr Micheal Buttsworth is not Aboriginal. He was suspended for 6 months for fighting in the Club with Kenny Carter. He had no previous suspensions. Kenny Carter 28 Mr Carter is Aboriginal. He was suspended for 6 months for fighting in Club. He had no previous suspensions. Heath MacGuire 29 Mr MacGuire is not Aboriginal. He threw glass at bar-man when the bar-man refused to serve him more alcohol. No-one was injured in the incident. Mr MacGuire was very apologetic the next morning and provided written apology to the Club. He had no previous suspensions. He was suspended for 6 months. Peter Trudgett 30 Mr Trudgett is not Aboriginal. He was suspended for swearing and fighting. When asked to leave by Graham Parkes he hit Mr Parkes in the face. He was suspended for 6 months and had no previous suspensions. Kevin Stanley 31 Mr Stanley is Aboriginal. He was suspended for 6 months for swearing. He did not turn up to receive his suspension form the Board he was as away. He was let back into the Club when he appeared before the Board as his suspension was up anyway. Robert Don 32 Mr Robert Don is not Aboriginal. He was previously suspended at a time when his father was on the Board. He was suspended for 7 years for an incident which involved swearing, "pinching" a beer from the fridge, kicking and damaging the fridge door. Louise Clark 33 Ms Clark is not Aboriginal. She is Mr Don's wife. She had previously been suspended. She was suspended for 7 years for involvement in the incident above with Robert Don. Laurence Stanley 34 Mr Stanley has had two previous suspensions and in addition has also had three warnings from the Board. He was suspended for 7 years. Mr Parkes gave evidence about an incident involving himself when he was President of the Club. Mr Trudgett was swearing and abusive and Mr Parkes was attempting to get Mr Trudgett to leave the Club premises. This resulted in Mr Trudgett hitting him in the face and a scuffle broke out. As he had retaliated when Mr Trudgett hit him Mr Parkes voluntarily suspended himself for one month. The Board did not alter the suspension. 35 Mr Parkes stated that the Board was receiving complaints about the behaviour of its members. The reason the Board started to impose such severe penalties when there had been previous suspensions, was because people were being turned away from the Club because of the behaviour and attitudes of some members. FINDINGS OF FACT 36 The applicant Mr Stanley has been a member of the Club since 10/4/95. He appeared before the Board and was "severely reprimanded" for drunken and abusive behaviour at a tournament in Gulgong on 21/8/95. He did not receive a suspension of his membership for this incident. 37 The applicant continued to be drunk and abusive, using foul language to Club members in October 1995. He agrees he threatened Ms Hinton that he would burn down the house of any-one who got him suspended from the Club and concedes he may have threatened Mr Job and Mr and Mrs Jackson while drunk. He appeared before the Board and was suspended for a period of 12 months. 38 He was re-admitted to the Club on 26/10/96. There is no dispute that the applicant was again behaving in a drunken and abusive manner to Club staff and members in February of 1997. He appeared before the Board and was suspended at the Board's pleasure. 39 These facts formed the background for the Board's decision to suspend the applicant's membership from the Club in 1998 when the applicant's continued inappropriate behaviour again came to its attention. On 18/5/98 the applicant received a suspension of his Club membership for a period of 7 years. It is that suspension which forms the basis of this claim. 40 The applicant does not dispute that his behaviour was such that he deserved to be suspended. He agrees he was drunk in the Club, swore at members and abused bar staff. The only fact that the applicant does dispute is that he threatened Club members that he would burn down the house of any person who got him suspended from the Club, and there is a concession that such threats may have been made while drunk. In any event the applicant agrees he did make such a threat against Ms Hinton. 41 The Tribunal finds, and there was no dispute, that Michael Buttsworth, Kenny Carter, Heath MacGuire, Peter Trudgett and Kevin Stanley had their Club membership suspended for a period of 6 months for inappropriate behaviour in the Club. The evidence was, and it was not disputed, that this was the first time that these members had come to the attention of the Club Board for inappropriate behaviour. 42 The Tribunal finds, and it was not disputed that the only persons to have their membership suspended for a period of 7 years were the applicant, Mr Robert Don and Ms Louise Clark. The Tribunal further finds, and again it was not disputed, that Mr Stanley, Mr Don and Ms Clark had previously had their membership suspended for inappropriate behaviour at the Club. 43 It is noted that there was mention of a Mr Ian Smith who may have had his membership suspended, however there was also a suggestion he left the Club before a suspension was imposed. The evidence was unclear on this point. 44 The Tribunal finds that neither Mr Don, nor Ms Clark are Aboriginal. It is noted that Mr Stanley claims Mr Don is Aboriginal, however the evidence is that Mr Don does not hold himself out to be Aboriginal. RELEVANT LEGISLATIVE PROVISIONS 45 The relevant legislative provisions are those relating to race and discrimination by registered clubs. ANTI-DISCRIMINATION ACT 1977 - SECT 7 7 What constitutes discrimination on the ground of race (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race 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 of a different race or who has such a relative or associate of a different race, or (b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, 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) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. ANTI-DISCRIMINATION ACT 1977 - SECT 20A 20A Registered clubs (1) It is unlawful for a registered club to discriminate against a person who is not a member of the registered club on the ground of race: (a) by refusing or failing to accept the person's application for membership, or (b) in the terms on which it is prepared to admit the person to membership. (2) It is unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of race: (a) by denying the person access, or limiting the person's access, to any benefit provided by the registered club, (b) by depriving the person of membership or varying the terms of the person's membership, or (c) by subjecting the person to any other detriment. (3) Nothing in subsection (1) or (2) applies to or in respect of a registered club if the principal object of the registered club is to provide benefits for persons of a specified race defined otherwise than by reference to: (a) colour, or (b) a description which has the effect of excluding persons of that race who are of a different colour from those persons, or the majority of those persons, who do not come within that description. (4) In determining whether the principal object of a registered club is as referred to in subsection (3), regard shall be had to: (a) the essential character of the registered club, (b) the extent to which the affairs of the registered club are so conducted that the persons primarily enjoying the benefits of membership are of the race specified in the principal object, and (c) any other relevant circumstance. SUBMISSIONS 46 The respondent submitted the applicant has not received less favourable treatment from the Club which is referrable to race. The Club's decision to suspend the applicant's membership for the 7 year period was due to inappropriate behaviour both on the Club premises and while representing the Club at Club functions. 47 The evidence is that Club members are treated equally. Initial suspensions are usually for a period of 6 months. Where there is continued anti-social behaviour despite previous suspensions then a 7 year suspension is imposed. It was submitted that the evidence discloses that the suspension periods are not referable to race. 48 Evidence was given that Mr Trudgett, Mr MacGuire, Mr Buttsworth and Mr Carter (Aboriginal) all received equal treatment of a 6 month suspension for objectionable behaviour. They had not however been previously suspended by the Board. 49 The respondent submitted that in respect of the imposition of a 7 year suspension the applicant Mr Stanley was similarly treated to Mr Robert Don and Ms Louise Clark being Club members whose membership had both been previously suspended by the Board. Neither Mr Don nor Ms Clark are Aboriginal. Mr Don's father was on the Board at the time Mr Don received his initial suspension. 50 It was further submitted that Mr Stanley does not deny any of the allegations made about his behaviour. The only allegation he did deny was that he threatened to burn down the house of anyone who got him suspended from the Club, but he conceded he may have made such threats when he was drunk. In any event he agrees that he did threaten to burn Ms Hinton's house down and also made the threat to her that he would "kill the person" that got him "barred" from the Club. At the time Ms Hinton was a Director of the Club. 51 In summary it was submitted that the conduct of Mr Don and Ms Clark was not nearly as objectionable, nor as long standing and repeated as that of the applicant Mr Stanley. Yet as both had been previously suspended they also received a 7 year suspension. Neither of them are Aboriginal. 52 It was submitted therefore that the appropriate comparator were the Club members previously suspended. All other members Aboriginal and non-Aboriginal received 6 months suspension if they were not previously known by the Board. 53 The applicant did not make any submissions. DECISION 54 The applicant was very candid in his evidence to the Tribunal and conceded his behaviour was inappropriate and he deserved suspension from Club membership. He claims that the suspension is however a bit excessive. 55 In order for the claim to succeed the applicant must establish that the Club, in its suspension of his membership, treated him less favourably in the same circumstances or in circumstances which are not materially different, than it would have treated a person who was not Aboriginal. 56 The evidence supports a finding that the severity of suspension from the Club is directly related to whether the member has appeared before the Board and been suspended for inappropriate behaviour previously. 57 There was no evidence to establish that the applicant had been treated less favourably on the grounds of race. ORDERS 58 The complaint of race discrimination made by Mr Laurence Stanley is dismissed. 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