Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179

CITATION: Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179

DIVISION: Equal Opportunity Division

APPLICANT PARTIES: Jon Hillman RESPONDENT Bankstown District Sports Club Ltd

FILE NUMBER: 061045

HEARING DATES: 4 June 2007

SUBMISSIONS CLOSED: 4 June 2007

EXTEMPORE DECISION DATE: 4 June 2007

DATE OF DECISION: 6 August 2007

BEFORE: Rice S - Judicial Member; Bolt M - Non Judicial Member; Monaghan-Nagle L - Non Judicial Member

CATCHWORDS: Victimisation - Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Anti-Discrimination Act 1977

APPLICANT S Sutherland REPRESENTATION: RESPONDENT J Oakley

ORDERS: The complaint is dismissed

REASONS FOR DECISION 1 These reasons were given ex tempore, that is, they were announced orally in the Tribunal hearing room on the first day of the hearing. Mr Hillman has since requested that the reasons be provided in writing, and these are those reasons, based substantially on a transcript of what was announced orally. The facts are known to the parties and were canvassed on the day of the hearing, so did not form a part of the oral reasons. 2 Under section 102 of the Anti-Discrimination Act 1977 "The Tribunal may, at any stage in proceedings relating to a complaint dismiss the whole or any part of the complaint on a ground which the President [of the Anti-Discrimination Board] may decline the whole or any part of the complaint under section 92". 3 Under section 92(a) the President may decline the complaint when satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint. 4 We note that the Tribunal has the power to dismiss the complaint at any stage in the proceedings. 5 The Tribunal, at an early stage on the first day of the proceedings, asked the parties to address an issue which, in the Tribunal's view, could have led to the Tribunal dismissing the complaint. The parties did so, and the Tribunal has in fact come to the view that the complaint ought be dismissed at this stage. The Tribunal has formed the view that, within the terms of s92(a)(i), Mr Hillman's complaint is "misconceived or lacking in substance". Arguably, the finding we make below amounts, as well, to a view that the conduct alleged, if proven, would not disclose the contravention of the Act or the regulations s92(a)(ii). 6 There is no suggestion that Mr Hillman's victimisation complaint is either frivolous or vexatious. Rather, it is a question of how s50 of the Act operates, and whether Mr Hillman's complaint can come within the terms of s50 of the Act. 7 Mr Hillman says that in September 2005 he was subjected to the detriment of disqualification from membership of the Club. Section 50 requires the Tribunal to be satisfied that that detriment was 'on the ground of" a number of possible circumstances, all of which have to do with Mr Hillman's having previously made a complaint against the Club to the Anti-Discrimination Board, in 1996. 8 For conduct to be on the ground of a thing's having happened, the person who is said to engage in the conduct – in this case the Club – needs to have known that that thing happened. Only if they did know of it can they then be said to have acted on the ground of its having happened. It would not be possible for somebody to act on the ground of an occurrence if they were unaware of the occurrence. 9 In light of the material that had been filed before the commencement of the hearing, an apprehension arose on the part of the Tribunal that the Club, when it disqualified Mr Hillman from membership in 2005, may not have known of his 1996 complaint about it to the Anti-Discrimination Board. If that were so, then that earlier complaint would not have been available to the Club as a ground for its conduct; it would not be possible for Mr Hillman to identify it as a, or as the, ground for the conduct he now complains of. We therefore began the hearing by asking that evidence to be directed towards that issue. 10 There is no question that Mr Hillman did make a complaint in 1996 to the Anti-Discrimination Board. The Anti-Discrimination Board itself did not communicate with the Club. In his evidence to the Tribunal, Mr Hillman identified the occasions on which he says the Club was made aware of the fact that he had made that complaint. He says that the Club first became aware of his having complained through his having sent them a letter in April 1997. 11 The evidence from the Club is that that letter was not received. We heard evidence from officers of the Club, Mr Condi and Mr McCormick, explaining the administrative steps that were taken when correspondence was received, directed to the Club President, and tabled at a Club Board meting. Their evidence is that there is no record of the Club's receiving a letter from Mr Hillman in or about April 1997, and nor do they have any recollection of such a letter. We note that there is no evidence of any conduct, at that time or afterwards, by any party that reflects the letter having been received by the Club. We are comfortably satisfied that the letter was not received. 12 On balance, we are not satisfied that the letter was even sent in the first place. In saying that we have regard to the concessions that Mr Hillman made under cross-examination in relation to file notes, on the Anti-Discrimination Board file, of things he said to officers of the Board in the period 1996 and 1998. Mr Hillman conceded that he had misstated or overstated to the Anti-Discrimination Board the extent of his discussions with the Club, and the extent to which he was continuing to pursue his complaint against the Club in that period. 13 It is apparent that, despite representing to the Board, over a period of more than a year, that he was involved in discussions with the Club concerning his complaint, he was not in fact involved in such discussions. There is no evidence that he pursued his complaint with the Club. In those circumstances it is difficult for us to accept that his letter, that was never received, was in fact, sent. 14 Mr Hillman says that the Club had further reason to be aware of his having complained against it from when he addressed the Board on 11 April 2005. For that meeting Mr Hillman prepared a document headed "Summary of oral submissions to the Board", in which at paragraph 8 he refers to his having previously complained to the Anti-Discrimination Board, these terms; "My previous complaint to the Anti-Discrimination Board when previous allegations were made against me (linked by implication to my perceived ethnicity, nationality, cultural background) by a club employee who was subsequently relocated." 15 Mr Hillman's evidence is that this document is a reflection of what he said to Board on 11 April 2005, and we have been given no reason to not believe him. But Mr Hillman's evidence is also that he was cut off by the Board from addressing them in full, and we do not know how much of what is in the document "Summary of oral submissions to the Board" was actually presented to the Board. 16 Although Mr Hillman was, he says, "cut off" when he tried saying it, Mr Condi's evidence is that this document – but not the further document headed "Appendix to oral submissions," – form part of the minutes of the meeting. At least by its being in a document in the Minutes of 11 April 2005, we are satisfied that Mr Hillman brought to the Club's attention his "previous complaint to the Anti-Discrimination Board", at least in the terms of paragraph 8 quoted above. 17 The Club did not make its decision to disqualify Mr Hillman until September 2005, so it appears that for some five months before its decision, the Club was on notice, in the manner we have described, of Mr Hillman's having made a previous complaint. 18 As well, on 22 April 2005 Mr Hillman sent an email to the secretary/manager of the club, Mr McKay, where he said " ... especially involving the employee who was the subject of a previous complaint to the Anti-Discrimination Board". Mr McKay, however, is not a member of the Club's board and we are not prepared to infer that his knowledge was, in the circumstances, the Board's knowledge. 19 On the evidence we have heard, there is a very real difference between a matter being brought to the attention of Club's board, and that matter being something that the Club's board knew of such that it would be available to it as a ground for its future conduct. It is one thing for Mr Hillman to have put in a document what we quote above at paragraph 14 above, and to have tried to say something but been cut off in saying it, and another altogether for that to be something that was known to the board such that it could engage in future conduct on the basis of it. 20 We heard evidence from Mr McCormick. In his affidavit at paragraph 28 he said "At the time of the decision on 5 September 2005 I was not aware that the applicant had ever made such a complaint to the Anti-Discrimination Board." Further he said, "I have re-read the applicant's Summary of Oral Submissions, with particular reference to paragraph 8 and I say that I did not fully appreciate the content of this paragraph as I knew nothing of this alleged previous complaint." Although he was not called to give evidence, the affidavit evidence of Mr Murray, a Club board member, is to the same effect: "At that time that paragraph made no sense to me." 21 It is the case that in 1996 the Club's board had no knowledge of Mr Hillman's having made a complaint, and that no knowledge accrued to them in the intervening years. In our view it is entirely plausible – and we accept Mr McCormick's evidence to this effect – that the reference to a complaint, in the terms in which paragraph 8 of Mr Hillman's Summary of Oral Submissions is expressed and in the circumstances in which it came to the Board's attention, would have, as Mr Murray said, made no sense; as Mr McCormick says, he "did not fully appreciate the content of the paragraph". 22 In our view, what was brought to the attention of the Club's board did not amount to knowledge on the board's part such that they were then in a position to act on it. Mr Hillman's 1996 complaint against the Club could not have been operative factor in the decision that the Club made in September 2005. 23 If our view was different, and Mr Hillman's 1996 complaint against the Club could have been an operative factor in the Club's 2005 decision, then it would be necessary to inquire into what the Club says were the actual operative factors in their decision to disqualify membership, principally the sexual harassment complaint alleged by the Club against Mr Hillman. 24 We do not come to a view about the status of the sexual harassment complaint: we have not conducted an inquiry into it. Mr Hillman has said that he believes it to have been fabricated, and he has given reasons why that might be so. They remain reasons why that might be so. We understand from the counsel for the Club, that the Club strongly resists the allegation of fabrication. We do not have a view, and would need to come to a view only if we thought that when it made its decision in September 2005 the Club's board had knowledge of Mr Hillman's previous complaint. 25 As we have said, Mr Hillman's having brought his 1996 complaint to the Club's attention in the way that he did in April 2005 did not elevate it to knowledge of the Club such that it could be said to have subsequently acted on it. For that reason we cannot see Mr Hillman's complaint having any prospect of succeeding, not because we think that the matters that he raises otherwise lack any merit, but because his complaint to the Anti-Discrimination Board in 1996 could not have been a 'ground' for the Club's conduct in 2005 within the meaning of s50. 26 In those circumstances therefore we exercise the discretion available to us, under section 102, and dismiss the whole of the complaint.