Cook v Scuffy Murphy's Pty Ltd & anor [2007] NSWADT 129

CITATION: Cook v Scuffy Murphy's Pty Ltd & anor [2007] NSWADT 129

DIVISION: Equal Opportunity Division

APPLICANT Marcellus Cook PARTIES: FIRST RESPONDENT Scruffy Murphy's Pty Ltd SECOND RESPONDENT T & B Corporate Security Services Pty Ltd

FILE NUMBER: 061103

HEARING DATES: 2 May 2007

SUBMISSIONS CLOSED: 2 May 2007

DATE OF DECISION: 19 June 2007

BEFORE: Connelly J - Judicial Member ; Hiffernan N - Non Judicial Member; Schembri A - Non Judicial Member

CATCHWORDS: Race Discrimination - Goods and Services

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Anti-Discrimination Act 1977

Briginshaw v Briginshaw (1938) 60 CLR 336 CASES CITED: Hall v Sheiban (1985) ALR 503 Reddy v International Cargo Express [2004] NSWADT 218

APPLICANT D Hilliard, solicitor

REPRESENTATION: FIRST RESPONDENT B Cross, counsel SECOND RESPONDENT T Brandusiou, agent

ORDERS: 1. The first respondent is to pay the applicant general damages in the sum of $2,500.00 within 28 days.; 2. The second respondent is to pay the applicant general damages in the sum of $2,500.00 within 28 days.; 3. No order as to costs.

REASONS FOR DECISION 1 In the very early hours of 30 November 2005 Marcellus Cook went with a number of work colleagues to Scruffy Murphy's on Goulburn Street in Sydney. They had just finished a meal at a local restaurant, at which no alcohol was consumed, and they were looking to continue the evening. Mr Cook's friends were allowed entry in to Scruffy Murphy's (Scruffy's) but Mr Cook was not. He was refused entry by the doormen because Scruffy Murphy's policy at that time was that people of Pacific Islander and Middle Eastern appearance were to be refused entry to the Club unless they were known to the hotelier, Mr McGuiness, or his staff. Mr Cook is of Pacific Islander descent. 2 Mr McGuiness had only recently introduced that policy because his hotel had recently been implicated in a number of assaults in the local area which he says were apparently mainly carried out by people of Pacific Islander or Middle Eastern appearance. The doormen that night were security guards employed by T & B Security Services Pty Ltd (T & B) and Mr McGuiness says that they were instructed to enforce the policy. 3 Mr Cook makes a claim for compensation. Scruffy's admits that its actions amount to a breach of s19 (a) of the Anti-Discrimination Act 1977 (the "Act") and it does not contest the version of events offered by Mr Cook. 4 T & B at the hearing contested Mr Cook's version of events and did not admit that its employees acted in breach of the Act or that Mr Cook was refused entry because he was an Islander. 5 Mr Cook asserts that T & B, in carrying out Scruffy's policy, has aided Scruffy's and is therefore jointly and severally liable pursuant to s 52 of the Act. 6 At the case conference in this matter on 31/1/07 both respondents accepted responsibility for the conduct of their employees and no issue in relation to their vicarious liability pursuant to s53 of the Act was taken subsequent to that. 7 Section 53 of the Act says this: 53. An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. The case against the first respondent - Scruffy's 8 Scruffy's concedes that its policy was in breach of s 19 (a) of the Anti-Discrimination Act 1977 and that Mr Cook was discriminated against on the basis of race. 9 Section 7 (1) (a) of the Act defines direct discrimination as follows: 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. 10 Section 19 (a) of the Act says this: 19. It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those goods or services. 11 Scruffy's concedes that the Tribunal can make a finding that the complaint against it has been substantiated. 12 The Tribunal makes a finding that the complaint against Scruffy's is substantiated. 13 The only issue for the Tribunal in relation to Scruffy's is the assessment of damages. The case against the second respondent - T & B 14 Mr Cook says that T & B's doormen refused him entry. He was stopped at the entrance to Scruffy's and told that he wouldn't be allowed in because the hotel had a zero tolerance policy for Islanders and Maoris. He was asked to step aside which he did. 15 Mr Cook said that he spoke to another doorman who confirmed the policy and referred him to alternative hotels. 16 Mr Cook spoke to three doormen in total on the night and when he asked to speak to management about the policy he was told that they were busy. 17 Mr Cook said that he had not been drinking and was not asked if he had been. He was also not asked for any ID. Mr Cook provided a receipt and letter from the restaurant he had been at earlier that night which confirmed that no alcohol had been ordered with the meal. 18 T & B, through its director Mr Brandusiou, disputed Mr Cook's version of events. He was not present on the night in question but he said it was not his company's policy to discriminate against Islanders or anyone else. He did not accept that one of his security guards would have made the assessment about entry to this venue purely on the basis that Mr Cook was an Islander. He said that his guards usually ask questions relating to ID or how many drinks someone had already had. 19 Mr Brandusiou said that he had spoken to Mr Tui, who was one of security staff on duty that night, and that Mr Tui said that he asked Mr Cook how many drinks he had had and for ID. Mr Brandusiou said that he had also looked through the book for the night and had reached the conclusion that nothing had happened because all the book said was that one male was refused entry at that time. 20 Neither Mr Tui nor any of the security staff on duty that night gave evidence nor were any books or business records produced. 21 The best evidence before the Tribunal is the evidence of Mr Cook who was actually there at the time in question and who gave direct evidence about what happened. Little weight can be given to the evidence of Mr Brandusiou because he was not actually there at the time, some of what he said was hearsay and some of his evidence was about his company's general practice and policy which is not the issue in this case. 22 The Tribunal found Mr Cook to be a credible witness. In addition to this Scruffy's has conceded that it had in place on the night in question a policy of excluding people of Islander appearance and that it had instructed the security staff to enforce this policy. 23 Section 52 of the Act says this: 52. It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act. 24 We are comfortably satisfied to the civil standard of proof (see Briginshaw v Briginshaw (1938) 60 CLR 336) that T & B aided Scruffy's breach of the Act by enforcing the policy of Scruffy's to exclude Mr Cook on the basis of his race. We are satisfied therefore that T & B has acted in breach of s52 of the Act. 25 The Tribunal makes a finding that the complaint against T & B is substantiated. Relief 26 Mr Cook makes a claim pursuant to s108(2)(a) for general damages. 27 Sections 108(1) and (2)(a) are as follows: (1) In proceedings relating to a complaint, the Tribunal may: (a) dismiss the complaint in whole or in part, or (b) find the complaint substantiated in whole or in part. (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct. 28 Mr Cook suggests that the correct figure of compensation is $4750.00. Mr Cook says that both respondents should be jointly and severally liable. In addition Mr Cook makes a claim for aggravated damages in the sum of $1000.00 against T & B. 29 Mr Cook claims that he was shocked, confused and humiliated when he was refused entry at Scruffy's. He felt depressed and upset for several weeks after the incident and it diminished his self esteem for a while. He continues to feel disappointed and embarrassed about what happened. 30 Mr Cook says that the incident took place at the entrance to Scruffy's in the presence of his friends and the general public. 31 Mr Cook says that whilst Scruffy's have admitted what happened they have tried to justify their behaviour. In addition T & B have neither apologised nor acknowledged that the incident even took place and as a consequence Mr Cook feels that his complaint is not being taken seriously. He continues to feel frustration at T & B's inaction and lack of co-operation. 32 Scruffy's concedes that the applicant is entitled to an order for compensation and suggests that $1000.00 is the correct figure. It says that an apology is not appropriate although Scruffy's counsel advised the Tribunal that Mr McGuiness had apologised to Mr Cook during the hearing. 33 Scruffy's says that the Tribunal should take into account the fact that the incident lasted for only five to ten minutes, that the humiliation suffered by Mr Cook was limited because no public attention was drawn to the fact of his exclusion and that there were numerous other venues in the area that Mr Cook could have attended. In addition Scruffy's said that by admitting that it acted in breach of the Act it has reduced the stress suffered by Mr Cook. 34 Scruffy's said that there should be apportionment of damages and not joint and several liability as the two respondents were not the same legal entity. 35 In relation to T & B and the claim for aggravated damages Mr Cook said that T & B have not apologised and that it has produced no evidence to support its claim that nothing happened on the night in question. Its actions have contributed to, and have prolonged the distress suffered by Mr Cook. 36 T & B made no submissions on the issue of damages. 37 The Tribunal is satisfied that it is appropriate to make an award of general damages to Mr Cook because it is satisfied that he suffered hurt, humiliation, embarrassment and distress as a result of the conduct of Scruffy's and T & B. 38 Mr Cook says that both respondents are jointly and severally liable. Scruffy's says that as both respondents are distinct legal entities that there should be an apportionment of damages. 39 The finding of the Tribunal has been that Scruffy's has breached s19(a) of the Act and T & B has breached s52 of the Act. These are two separate breaches. Each respondent is responsible for its own breach and we intend to determine the appropriate figure for compensation to Mr Cook taking into account the circumstances of each breach and the impact upon Mr Cook. 40 The quantification of damages in cases of unlawful discrimination is difficult to determine. Notwithstanding the difficulty in determining the correct figure it is incumbent upon the Tribunal to use its best endeavours to ensure that Mr Cook is appropriately compensated. (see Wilcox J in Hall v Sheiban (1985) ALR 503 at 543) 41 The Tribunal considers that the following factors are of particular importance in its consideration of the assessment of general damages in this case: (a) the incident was one event of short duration - 5 to 10 minutes; (b) there were other venues in the vicinity; (c) the incident took place in front of Mr Cook's friends and the general public; d) approximately 1 year after the incident took place Scruffy's conceded that Mr Cook was discriminated against as he had alleged; (e) T & B has not made any concessions and did not advise Mr Cook of its intention to dispute his account until the day of the hearing; (f) Mr Cook felt shocked, confused and extremely humiliated at being refused entry. He felt upset and depressed for several weeks and his self esteem was diminished for a period. He continues to feel disappointed and embarrassed about the incident. In addition he continues to feel frustration about T & B's inaction and lack of co-operation. 42 Taking everything into account the Tribunal considers that it is appropriate that Scruffy's pay Mr Cook the sum of $2,500.00 as compensation for the incident. Whilst Scruffy's acknowledged its breach it was nevertheless the creator of the discriminatory policy in the first place and instructed T & B to carry it out. 43 Taking everything into account the Tribunal considers that it is appropriate that T & B pay Mr Cook the sum of $2,500.00 as compensation for the incident. T & B enforced the discriminatory policy and has prolonged the distress suffered by Mr Cook by its handling of the complaint. 44 The Tribunal does not consider that the circumstances of this case warrant an extra award for aggravated damages. We consider that the figure noted above takes into account T & B's contribution to Mr Cook's distress as a result of the incident and its conduct thereafter. (see Reddy v International Cargo Express [2004] NSWADT 218 at 17). Costs 45 Mr Cook makes no application for costs on the basis that the legal services provided to him have been on a pro bono basis. 46 There were no other costs applications. 47 Accordingly the Tribunal makes no order for costs.