Equal Opportunity Tribunal of New South Wales CITATION: Carberry -V- Culburra Bowling & Recreation Club Limited (No. 1) [1996] NSWEOT COMPLAINANT: Mr Ronald Carberry RESPONDENT: Culburra Bowling & Recreation Club Limited NUMBER: 146 of 1995 Mr Graham Ireland ( Judicial Member ) TRIBUNAL: Ms M Alt Mr O McDonald OAM GROUNDS OF COMPLAINT: Race Discrimination in the area of Registered Clubs DATES OF HEARING: 08/07/1996; 08/08/1996; 08/09/1996 DATE OF JUDGMENT: 09/06/1996 Complainant: Mr S Apps (Solicitor) South Coast Aboriginal Legal Service Mr J Wilson (Counsel) LEGAL REPRESENTATIVES: Respondent: Mr S Boone (Solicitor) Pigott Stinson Stuart Thom Mr I Neil (Counsel) JUDGMENT IN FAVOUR OF: Complainant This is an application brought by the Respondent pursuant to section 111(1) of the Anti-Discrimination Act 1977 (the Act) to dismiss the complaint on the ground that the complaint is lacking in substance. The application is made at the conclusion of the case for the Complainant and at a stage in the proceedings when the Tribunal had heard the evidence of the Complainant and two other witnesses, Mr Longbottom and Mr Whitten. A volume of documents had been admitted by the Tribunal as exhibits. The complaint has been referred to the Tribunal for inquiry pursuant to section 94(1) of the Act. The Respondent is entitled to bring this application at any stage of the inquiry and the Respondent bears the onus of satisfying the Tribunal that the evidence before the Tribunal is not capable of establishing the complaint. The nature of the test which the Tribunal is required to apply in reaching its determination has been the subject of a number of pronouncements by Courts and by other tribunals. The Tribunal was referred to the decision of the President of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, in Assall v Department of Health Housing and Community Services ([1993] EOC 92-409). The relevant parts of the decision of Wilson P were adopted subsequently in a decision of Eames J in Rabel v Equal Opportunity Board & Anor (Supreme Court of Vic, 10 August 1995 unreported). The latter decision related to the application of section 44(C) of the Equal Opportunity Act (Vic) 1984 which, although not in identical terms to section 111(1) of the New South Wales Act, is, for current purposes, sufficiently similar. The main distinction between the two sections being that under the Victorian legislation the application to dismiss the complaint on the grounds (inter alia) that it is lacking in substance, is to be made prior to the commencement of the hearing of the complaint. Eames J discussed the test to be applied in determining whether a complaint lacks substance. His Honour's decision was adopted by the Anti-Discrimination Tribunal (Vic) in Ciciulla and Walker (unreported decision - 1 July 1996). That Tribunal, in adopting his Honour's decision, made the following comments, which this Tribunal also adopts: "He (sic. Eames J) considered but rejected the formulation of the test in Ellenbogen v Municipal Shire Council Employees Union of Australia ([1989] EOC 93-252). The formulation of the test in that case was whether there was some semblance of evidence that might 'support or even hint at a just claim' (Ellebogen case at page 77, 452 per Einfeld J). His Honour then cited the formulation of the test by the Western Australian Equal Opportunity Tribunal in Fort v Ralph Lee & Associates ([1991] EOC 92-363) in terms of whether the Complainant 'had any real prospect of persuading the Tribunal' as to the issues necessary to substantiate the complaint'. Finally, His Honour cited Assall v Department of Health Housing and Community Services ([1993] EOC 92-409) where Wilson P said that a claim would lack substance where it would have no more than a remote possibility of success (Assall's case at pages 78, 900-903). Wilson P said that the real test was whether the evidence was capable of establishing the complaint. Eames J considered that this was the correct test (judgement at page 36). It is also important to bear in mind Wilson P's comment in Assall's case that 'it is possible that a Complainant's case will exhibit substance not withstanding that the ultimate outcome remains clouded in doubt. Bearing in mind that the power to dismiss a complaint summarily maybe exercised at any stage in an inquiry, I believe it may be inappropriate in some cases to relate the criterion of lack of substance to the complaint's prospects of success at all. Even this brief discussion served to confirm the belief that it is unwise to postulate any rules in tempting to guide the exercise of the power in question. That exercise must be governed by the words of the statute itself in the context of the particular circumstances of the case'. In our view, in applying S44C(1) we must be careful not to substitute our words for the words of the statute. We must bear in mind that we are asking the question whether the complaint lacks substance (or whether, as Eames J put it, there is evidence capable of establishing the complaint) at a stage before the final hearing, and before direct evidence has been given or that direct evidence has been tested in cross-examination. In this sense, an application to strike out a complaint under S44C is different from a submission of no case to answer. A no case submission is made after the evidence for the complaintant has been given, whereas the application to strike out the complaint is made at a much earlier stage. Bearing this in mind, and reading the judgement of Eames J as a whole, we consider that His Honour, when he referred to the test as whether the evidence was capable of establishing the complaint, to have in effect been asking the question: is the material before the Board so lacking in substance, so incapable of establishing the complaint, that the complaint ought to fail at this stage and ought not proceed to a final hearing?" In adopting the test as stated by the Victorian Anti-Discrimination Tribunal, this Tribunal considers that the test of the capability of the evidence establishing the complaint, is applicable whether the application be made on the grounds of lack of substance prior to any evidence being presented, or at the close of the case for the Complainant. Mr Carberry, an Aboriginal, complains that he has been discriminated against on the ground of his race by the Respondent Club (the club), as a result of three separate circumstances: 1. Whilst a member of the club he was cited, pursuant to Article 51 of the Articles of Association of the club, to appear before a special meeting of the board of the club to take place in the boardroom of the club on Friday 24 June 1994 at noon. The notice of citation which was given to the Complainant referred to a complaint made against him "in respect of an occurrence in the club on Saturday 11 June 1994", and the notice went on to state that the basis of the citation is "fighting and abusive language". The notice further requested that Mr Carberry be present at the meeting and invited him to give orally or in writing any explanation or defence he may think fit. In the meantime the notice stated that Mr Carberry was deprived of the privilege of membership of the club. The Complainant stated in evidence that he arrived at the club prior to noon on 24 June 1994, to be advised by the secretary that the board had already dealt with his citation as some of the members of the board had to leave early, and that the board had decided in his absence that he be suspended from membership for a period of one month. The Tribunal heard evidence concerning the fight which took place on 11 June 1994 in which Mr Carberry intervened to protect his female cousin. The Complainant was alleged to have struck a security guard and was then escorted off the club premises. His citation to the Board arose out of these events. 2. After expiry of the one month's suspension, on 12 August 1994 and in the company of Mr Whitten, the Complainant attended the club but was refused entry and was told that he needed to make a fresh application for membership before he would be allowed to use the club facilities - their periods of membership having expired. 3. The Complainant made an application for membership and paid the appropriate fee of $20, and pending consideration of this application he was allowed to continue to use the club premises. On 22 August 1994 the club advised the Complainant that his application had been rejected and that he will no longer be allowed on club premises. A cheque for $20, being a refund of his joining fees, was enclosed with the letter. The Complainant alleges that in each of these three instances the actions of the club discriminated against him on the ground of his race, and such discrimination, pursuant to section 7 and section 8 of the Act, was unlawful. The club has filed with the Tribunal statements by the club secretary and several other witnesses, none of whom have yet been examined or cross-examined. In relation to the three acts of alleged discrimination, the club's submission is: 1. that the proceedings of its board on 24 June 1994 in determining that Mr Carberry be suspended, without complying with its notice of citation and giving Mr Carberry an opportunity to be heard, was, to use a neutral phrase, improper, but not discriminatory. The actions of the board, it is submitted, were not discriminatory because although the board had acted improperly, it dealt in the same manner with the citation and suspension of another member, Mr Jason Behrman, a non-Aboriginal, who was also involved in the fight at the club on 11 June 1994. Mr Behrman was cited to appear before the board at 12.30pm on 24 June. It appears, although the evidence is not clear, that Mr Behrman did not appear on that day but nevertheless the board dealt with his citation and suspension well before 12.30pm. The minutes of the meeting of 24 June 1994 show that the board meeting concluded at 11.30am; 2. the club does not dispute that the Complainant was required to reapply for membership and that his application made on 12 August 1994 was subsequently rejected. The club says that Mr Behrman was treated in precisely the same manner as Mr Carberry. Mr Behrman made his application for membership on an application form which is undated. The application form contains a receipt which is dated 23 July 1994. Mr Behrman's application was dealt with at a board meeting on 29 July 1994. The minutes show that that meeting took one and a half hours and contained many items of business. The item relating to Mr Behrman was recorded under the heading "New members 96/94" and then "Moved: A Peters Seconded: J Flack That new members as read be accepted with the exception of Mr J Behrman". Mr Behrman's address on his application was shown "7 Prince Edward". On the same day, viz 29 July 1994, the club wrote to Mr Behrman at 7 Prince Edward Avenue, Culburra Beach, and advised him that his application was rejected and that he was no longer allowed on club premises. The letter enclosed a cheque for $20 as a refund of his membership fee. 3. The Complainant contrasts the treatment that he received from the board in its consideration of his application for membership with the manner in which the board dealt with the application for membership made by Mr Whitten. For reasons which are not clear to the Tribunal, Mr Whitten's application, which he made on the same day as Mr Carberry, had to be resubmitted. His application is dated 1 September 1994 although it contains a receipt bearing date 16 July 1994. It has not been suggested that there is any significance arising from these dates. When Mr Whitten's application was dealt with by the board, his application was accepted and he was issued with a new membership badge on 23 September 1994. Mr Whitten had been cited by the club for misconduct in 1992 and had been suspended for three months. It has been submitted that there was a relevant distinction between the approach adopted by the club to the application by Mr Carberry, which was rejected because of his citation in June 1994, and the acceptance by the board of the club of the application of Mr Whitten who had been cited and suspended in 1992. It was further stated in a letter written by the club to the Anti-Discrimination Board, when it was inquiring into the complaint (letter dated 9 February 1995): "His application was refused by the Board of Directors in line with Board policy that if a member allows his membership to lapse and has been cited previously, then the application for membership is denied. This has been applied to several non-Aboriginal people". This comment can be contrasted with the comment made by the president of the club, Mr Edward Stoddart, in his letter to the Tribunal of 5 September 1995: "On Mr Carberry's reapplication for membership, the Board considered the application, and in view of his past record rejected the application". No mention was made of the policy referred to in the earlier letter. No formal evidence has been given at this stage of the proceedings to the Tribunal about the policy of the club, if indeed there was a policy. To what extent the existence of a policy and the terms of the policy will be relevant to the inquiry is therefore at large. The question as to whether the Tribunal may find a distinction between the way in which the applications for membership by Messrs Carberry, Behrman and Whitten were dealt with by the board of the club is an issue which cannot be determined on the current state of the evidence. The tribunal considers it is curious to contrast the way in which the board of the club dealt with the applications for membership of Mr Behrman and of Mr Carberry. Mr Behrman's application was dealt with simply as an adjunct to a consideration of a number of applications for new members. That item was only one of a number of items dealt with at the meeting of the board on 29 July 1994. The Carberry application had not been made at the date of this meeting. This can be contrasted with the proceedings of the board on 22 August 1994, the day on which it dealt with Mr Carberry's application. The Tribunal has had tendered copies of minutes of two separate meetings of the board on that day, both of which were entitled "Special Meeting". The first special meeting, held at 8.35am and concluding at 9.30am on that day, dealt with questions concerning the membership of two persons, resulting in resolutions that one of these persons be reprimanded and the other person's membership be suspended for 12 months. At a further special meeting held on that day, commencing at 9.30am and concluding at 9.45am, the membership application of Mr Carberry was dealt with as a separate and distinct item. The minutes of that meeting are in the following terms: "The secretary/manager presented the application of Mr R Carberry to the board, along with Mr Carberry's past record, including citation of June 1994. It was resolved that Mr Carberry's application be rejected in view of his past record". No mention was made here of any policy of the board in this regard. On the face of it, it does appear that Mr Carberry's application was given separate and special attention. However the Tribunal at this stage is unable to draw any particular inference concerning these aspects of the evidence. The question of the application of the policy of the club may also be relevant to Mr Whitten's readmission and the contrast with Mr Carberry's application, for which the explanation by the club is the citation of Mr Whitten some two years before the application for readmission for an offence which, it is stated, was manifestly trivial, and the recent citation in connection with the fight on 11 June 1994 for which Mr Carberry had been cited. If the policy of the board, for which there is presently no evidence, was that a member would be readmitted after a period of suspension undefined but greater than one month, has the club attempted to apply a consistent standard to Mr Carberry, as it has of recent times offered to readmit Mr Carberry as a member of the club? This offer was made to Mr Carberry in a letter written by the club's solicitors to the solicitor acting for Mr Carberry, dated 28 February 1996. The offer was restated during the first day's hearing. Mr Carberry has rejected this offer on the basis that in his view the offer lacks bona fides on the part of the club. The Tribunal makes no finding at this time in relation to the effect of such an offer or its rejection by Mr Carberry, and merely points out that the effect of the offer and its rejection may have some weight, depending on what evidence is given concerning the board's policy on such matters. It is sufficient for the Tribunal to state at this stage that it is not satisfied that on the status of the evidence before it the complaint is so lacking in substance that it is incapable of establishing a complaint, and that the complaint should fail at this stage. In addition to the matters that have been referred to, there are several further issues arising from the evidence before the Tribunal, which the Tribunal considers requires further consideration, and which may or may not, depending on the nature of the evidence, be of particular relevance in enabling the Tribunal ultimately to reach a decision on the merits of the Complainant's case. The Tribunal lists the following matters which it has discerned from an examination of the material before it: 1. Exhibit 3 is a copy of the application made by the Complainant for membership of the club. The application is not dated, but at the foot of the document there is a receipt for the amount of $20 membership fee, dated 13 August 1994. Immediately above the bottom section of the form which contains the provision for the receipt of the membership fee, there is written in handwriting, by a person who is not identified, a word which could be "Abor". The Tribunal at this stage is unable to take this matter any further, but it does appear as though it requires an explanation. What is the notation? Who made the notation? Is it a notation that is made on all applications for membership of the club? Is it a notation that is made on all applications for membership of the club made by Aborigines? Does it have no significance at all? 2. Exhibit 8 is a list of the members of the club at 29 May 1996, a date after Mr Behrman's application was rejected. The list contains an entry "Jason Behrman - 132 Penguin Head Road, Culburra Beach NSW 2540" 472 228- 000". The latter 2 notations are under the columns headed "H/Phone"and "J/DATE". The Tribunal notes that Mr Carberry's name does not appear at all in this list. Why is it that Mr Carberry is not listed but Mr Behrman is listed? In relation to Mr Behrman's listing his address is recorded as an address different to the different to the address on his application for membership made in July 1994. Has there been some continual contact between the club and Mr Behrman which enables the club to update Mr Behrman's address? These matters may or may not have significance. 3. Exhibit 10 is a list headed "Persons not permitted entry to club due to misconduct". The Complainant's name is shown on this list. The Tribunal notes that Mr Behrman's name is not shown on the list. The list is dated 1 May 1996. Why does the club maintain Mr Behrman's name on the list of members at 29 May 1996 but does not list Mr Behrman, as it does the Complainant, in the list of persons not permitted entry to the club, extracted on 1 May 1996? In reaching its decision, the Tribunal has had regard to section 4A of the Act which states: 4A.If: (a) an act is done for 2 or more reasons; and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. To what extent section 4A may have application to the circumstances relating to the alleged acts of discrimination which occurred after 8 August 1994 (the date of commencement of this section) is a matter which will require consideration when all the evidence and material which the parties wish the Tribunal to consider, are before it. The club has gone to lengths to submit to the Tribunal that its conduct towards the Complainant in refusing his application for admission to the club was based on reasons consistent with its policies, such policies being consistently applied between Aboriginal and non-Aboriginal members of the club. The club has submitted that it applied these standards and policies in order to enable it to comply with the law, in particular section 44A of the Registered Clubs Act 1976 and to enable the secretary of the club to avoid liability under that section. If the conduct of the club towards the Complainant constitutes unlawful discrimination under the Act, the Respondent Club may be deemed by the application of section 4A of the Act to have acted unlawfully, notwithstanding that that its policies were applied for other lawful purposes. The Tribunal emphasises that at this stage it has not come to any conclusion as to the merits of the Complainant's allegations. The Tribunal, however, considers that the application under section 111(1) of the Act, made by the Respondent for the complaint to be dismissed at this stage of this inquiry, be rejected. 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.