CITATION: Bassili v Star City Pty Ltd [2008] NSWADT 62 DIVISION: Equal Opportunity Division APPLICANT Rene Bassili PARTIES: RESPONDENT Star City Pty Ltd FILE NUMBER: 071054 HEARING DATES: On the papers SUBMISSIONS CLOSED: 21 December 2007 DATE OF DECISION: 27 February 2008 BEFORE: Britton A - Deputy President CATCHWORDS: Dismissal of complaint - for any other reason MATTER FOR DECISION: Preliminary matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Casino Control Act 1992 Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Han v NSW Department of Health [2006] NSWADT 113; Harding v Vice Chancellor, University of NSW [2003] NSWADT 74; Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13; Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179; Karekar v TAFE Commission of New South Wales [2000] NSWADT 187; Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59; CASES CITED: Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73; Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18 Razaghi v Director General, Department of Health & anor [2005] NSWADT 202; Salama v Qantas Airways Ltd [2002] NSWADT 119; Razaghi v Director-General, NSW Department of Health & anor [2002] NSWADT 4; Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221; State Electricity Commission of Victoria v Rabel [1998] 1 VR 102; Tannock v State of New South Wales [1999] NSWADT 73 APPLICANT D Beckwork, agent REPRESENTATION: RESPONDENT A Gray, solicitor ORDERS: The complaint is dismissed under section 102 of the Anti-Discrimination Act 1977. REASONS FOR DECISION 1 Mr Rene Bassili claims that Star City Pty Ltd discriminated against him on the grounds of disability by issuing an exclusion order the effect of which is, that unless revoked, he is barred indefinitely from entering the casino operated by Star City Pty Ltd. Mr Bassili complained to the President of the Anti-Discrimination Board about that order. Conciliation was attempted but not successful. The complaint has now been referred to the Administrative Decisions Tribunal for determination. 2 These reasons address whether Mr Bassili's complaint should be dismissed under section 102 of the Anti-Discrimination Act 1977 (the Act). At the invitation of the Tribunal the parties were invited to make submissions on this issue. Both consented to the matter being dealt with 'on the papers'. 3 It is common ground that at the time of the alleged discriminatory conduct Mr Bassili suffered from schizophrenia and secondary depression each of which constitute a 'disability' as defined by section 4 of the Act. Representation 4 At the commencement of the proceedings Mr Bassili was represented by the Legal Aid Commission of NSW. The Commission subsequently refused an application from Mr Bassili for legal aid. Mr Bassili subsequently advised the Tribunal that he was unable to find alternative representation and could not represent himself. Being satisfied that he was an 'incapacitated person' the Tribunal decided to appoint a representative from 'People With Disabilities' to represent Mr Bassili under section 71 of the Administrative Decisions Tribunal Act 1997. 5 Star City has been legally represented throughout these proceedings. 6 Both parties provided written submissions on the issue. With the consent of both parties the matter was determined 'on the papers'. Power to summarily dismiss a complaint 7 Section 102 of the Act provides that the Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1)(a)(i) or (ii) or (b). Section 92 relevantly provides: (1) If at any stage of the President's investigation of a complaint: (a) the President is 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 (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint 8 It is settled law that the discretion to dismiss a complaint summarily under section 102 (formerly section 111(1)) should be exercised with exceptional caution and only if the circumstances clearly warrant such action. (See Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73; Tannock v State of New South Wales [1999] NSWADT 73; Karekar v TAFE Commission of New South Wales [2000] NSWADT 187; Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221; Salama v Qantas Airways Ltd [2002] NSWADT 119; Razaghi v Director-General, NSW Department of Health & anor [2002] NSWADT 4; Harding v Vice Chancellor, University of NSW [2003] NSWADT 74; Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59; Razaghi v Director General, Department of Health & anor [2005] NSWADT 202; Han v NSW Department of Health [2006] NSWADT 113; Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13; Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179.) 9 As the Tribunal commented in Karekar v TAFE Commission of New South Wales at [36], the need for caution is even more apparent in cases such as this where the application to have the complaint dismissed is made prior to the adducing of the Applicant's evidence at the substantive hearing. 10 In determining whether the complaint should be dismissed on one of the available grounds, Mr Bassili's evidence must be taken at its highest: see Prakash v Bobb Borg Enterprises Pty Ltd at 13-14; Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18. In other words if Star City's evidence conflicts with Mr Bassili's, Star City's evidence is to be disregarded. In this matter, no evidence has been filed. The only evidence – or more correctly, material – capable of being converted into evidence, is that contained in the President's Report. Documents before the Tribunal 11 The documents before the Tribunal in this matter are the report of the President provided under section 94A(2) of the Act, a bundle of documents filed on behalf of Mr Bassili on 15 August 2007 and the submissions provided by both parties. All have been taken into account in these reasons. 12 Attached to the report of the President are two documents that had been provided by Mr Bassili but not disclosed to Star City. For the purpose of this decision I have not had regard to those documents. Factual Background 13 Much of the factual background to Mr Bassili's complaint is not in issue. By letter dated 22 June 2006 Star Casino Manager, Virginia Baker, advised Mr Bassili that he had been issued with a 'non-voluntary exclusion order'. She explained that as a consequence of that order he would not be allowed to enter any part of the Casino gaming areas and furthermore if he breached the order he could be liable for a fine of up to $5,500 or 12 months imprisonment. She wrote that the order was issued 'out of concern for your well being' and encouraged Mr Bassili to seek 'the support and assistance of professional counsellors and doctors to address [his] difficulties'. 14 In his complaint lodged with the Board on 13 February 2007 Mr Bassili wrote, 'I believe I am entitled to go to the casino as I like to go and feel safe there. I lost $2,700 on 8 February [2007]. Only then she [Virginia Baker] said when I was suicidal that I will be placed on high alert; to not enter. Once again I lost a lot of money, as the order wasn't enforced dated 21 June 2006. Virginia … has offered me psychological counselling, although I see a private psychiatrist. My life is a mess. Star City has discriminated against me because I am schizophrenic … I am suffering immensely.' 15 In answer to a letter from the Board, Solicitors acting for Star City wrote (President's report, Tab 3): Star City denies that it has engaged in conduct amounting to unlawful discrimination by issuing the Exclusion Order against Mr Bassili. The Exclusion Order was imposed as a direct consequence of Dr Micallef's request (which was made with the express knowledge and consent of Mr Bassili) that Mr Bassili be prohibited from entering or remaining in the casino. There is no basis to say that Star City's actions in complying with this request amount to less favourable treatment of Mr Bassili on the basis of his disability. Star City's response to a request for exclusion would have been the same regardless of whether a casino patron was suffering from a disability or not. The Exclusion Order was imposed by reason of the request and not Mr Bassili's disability. The underlying basis for acceding to the request and imposing the Exclusion Order was Mr Bassili's inability to gamble responsibly and a genuine concern for his welfare rather than his disability. Again, a similar order would be imposed at the request of any person with similar gambling problems irrespective of whether they were suffering from a disability or not. 16 Attached to the President's report was a copy of a letter that was provided to the Casino by Mr Bassili's treating doctor Dr Robert Micallef on 20 June 2006. It stated: "With Rene Bassili's knowledge and permission I am writing to you to request that he be banned from the casino. He suffers from a severe mental illness involving delusional thoughts and cannot gamble responsibly. Also with Rene's permission I have discussed the situation with his mother … and she is also of the opinion that Rene should be banned from the Casino for his own good." 17 In reply Mr Bassili (President's report Tab 4): Stated that Dr Micallef was a general practitioner not a psychologist and therefore unable to determine his suitability to gamble; Denied telling Dr Micallef that he had agreed to being 'banned' but said even if he had, it would have been because he was suffering from 'acute schizophrenia'; Claimed he was able to gamble responsibly — the loss [on 20 June 2006] was a 'one off'; Denied that the Casino advised him of his right to have the order reviewed. 18 In answer to the question set out in the Complaint lodged with the Board — 'What would you like to happen to sort out this complaint?' — Mr Bassili wrote: first, damages as the 'discrimination has led to a … deterioration of my mental illness …'; second, the lifting of the exclusion order; third; 'the $2,700 lost on 8 February [2007] returned to me as I shouldn't have been allowed in due to the [exclusion] order … I am broke'. Relevant provisions of the Casino Control Act 19 Section 79(1) of the Casino Control Act 1992 (the CC Act) gives a casino operator and the Casino Authority the power to make an order prohibiting a person from entering or remaining in a casino. A person the subject of an exclusion order may apply to the Casino Authority within 28 days after the order is given, for review of the order unless it was given by the Authority or at the direction of the Commissioner of Police: section 80. 20 The CC Act does not expressly prescribe the grounds on which a patron can be excluded from a casino. 21 Section 4A of the CC Act sets out the primary objects of the Act and includes: 'containing and controlling the potential of a casino to cause harm to the public interest and to individuals and families'. Scope of the complaint 22 The primary matter about which Mr Bassili complains is the decision made by Star City in June 2006 to issue an exclusion order. I understand Mr Bassili to also complain about Star City's alleged failure to enforce that order in February 2007, which on his account, resulted in the loss of his entire savings. 23 In written submissions dated 31 October 2007 Star City referred to its subsequent decision in June 2007 not to accede to Mr Bassili's request to lift the exclusion order. As that decision falls outside the scope of Mr Bassili's complaint I have disregarded it for the purpose of this decision. Test of discrimination 24 Section 49 M(1)(a) makes it unlawful for a person who provides services, for payment or not, to discriminate against a person on the ground of disability by refusing to provide the person with those services. 25 I understand from the submissions made on behalf of Mr Bassili read together with his complaint to the Board that his complaint is cast as one of so called 'direct discrimination' as defined by section 49B(1)(a) of the Act. To succeed Mr Bassili must establish, in respect of at least one each of the matters about which he complains: First, that the offending conduct falls within the scope of section 49M(1); Second, that Star City treated him less favourably than, in the same or similar circumstances, it treated or would have treated a person who did not have his disability; Third, that one of the reasons for that treatment was his disability(s). Should Mr Bassili's complaint be dismissed? 26 The issue to be determined is whether the circumstances of this case warrant an exercise of the power available under section 102 to summarily dismiss all or part of Mr Bassili's complaint on one of the grounds advanced by Star City, namely, that it lacks substance or for 'any other reason', namely that the Tribunal is without power to make the orders sought. In making that determination the approach outlined in paragraph [10] of these reasons will be followed, that is, Mr Bassili's evidence will be taken at its highest and where it conflicts with that of Star City, the latter will be ignored. 27 I proceed on the basis that in broad terms 'lacking in substance' means 'an untenable proposition of law or fact' (see decision of Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109). Allegation 1: Exclusion from Star City 28 It is contended for Star City that Mr Bassili's complaint lacks substance as there is no evidence of less favourable treatment and/or that one of the reasons for the decision was because Mr Bassili suffered from a disability. 29 Mr Bassili's representative endorses that submission (see submissions filed 28 November 2007). Further she submits that for the time being at least it is in Mr Bassili's best interests that the offending order remain on foot. Nonetheless she argued that Mr Bassili should be awarded damages to compensate for his loss of enjoyment as a consequence of being denied access to the Casino. I understand that Mr Bassili does not endorse that submission and insists that he has been discriminated against by Star City. 30 The submission made by Mr Bassili's representative raises the interesting question of the approach the Tribunal should take to a section 102 application where an applicant, or their section 71 representative, agrees that the initiating complaint lacks substance but the complaint is not withdrawn. It seems to me that in those circumstances it is not open to the Tribunal to treat that submission as in effect an admission and be satisfied to the requisite standard that the complaint lacks substance. The opinion of the representative that it is in Mr Bassili's best interests that the offending order remain in place could be relevant when deciding whether the complaint should be dismissed 'for any other reason' (section 92(1)(b)) but not, in my view to whether it lacks substance. 31 Before dismissing the complaint on the ground that 'lacks substance' I need to be satisfied, taking Mr Bassili's evidence, or material capable of being converted into evidence, at its highest, that the complaint lacks substance. 32 Refusal of a service? Service is defined in section 4(b) of the Act to include services relating to entertainment, recreation or refreshment. It is plain that Star City offers patrons services in all three areas. Accordingly the decision to exclude Mr Bassili constitutes a refusal of services and falls within the scope of section 49 M(1)(a). 33 On the grounds of? The issue that falls to be determined is whether there is any evidence which if accepted would establish that one of the reasons Star City acted as it did was 'because of' Mr Bassili's disability. 34 At this stage of the proceedings little is known about the factors the person or persons who made the offending decision took into account in making that decision and the processes employed in the making of that decision. Reference is made in the documents to Star City's policy on 'responsible gambling' but Star City did not provide a copy of that policy to the President or the Tribunal. 35 The little that is known about the decision-making process which led to the issue of the exclusion order against Mr Bassili, reveals that the decision was made by Star City's 'Responsible Gaming Committee', probably on the recommendation of Ms Baker. It is also clear that Ms Baker and members of the Committee were aware of the treating doctor's recommendation before the decision was made. 36 Star City argues that it does not follow that because its decision-makers knew that Mr Bassili suffered from a disability that that was the reason they decided to exclude him from the Casino. It argues that there is no evidence that the reason for the decision was other than as stated namely 'concern for his well being'. 37 Even if accepted that the Star City decision-makers acted in what they considered to be Mr Bassili's best interests it does not exclude the possibility that one of the reasons they acted as they did was 'on the ground of' his disability/ies. The majority in Purvis v New South Wales (2003) 217 CLR 92 said that in respect of causation the 'central question will always be' (at page 163): [w]hy was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'. 38 McHugh and Kirby JJ put the question to be asked in this way (at pages 142, 143): [w]hile it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind. 39 As Star City points out, it does not establish that because its decision-makers were aware Mr Bassili suffered from a disability(s) that that was the reason for their decision. Nonetheless in my view the evidence taken as a whole could be capable of supporting that finding. In reaching that conclusion I note: it is uncontroversial that the trigger for the offending decision was the GP's recommendation; a fair reading of the GP's letter to the Casino suggests that he believed there was a direct relationship between Mr Bassili's inability to gamble 'responsibly' and his 'severe mental illness'. 40 While at this stage of the proceedings there is no direct evidence that the offending decision was made 'on the ground' of his disability I am satisfied that there is some evidence from which, if accepted, that inference could be drawn. 41 Less favourable treatment? Section 49B(1)(a) requires Mr Bassili's treatment to be compared with that afforded to an actual or hypothetical patron who was, or would be, in the same, or not materially different circumstances. There is no evidence of an appropriate actual patron and therefore it is necessary to employ a hypothetical comparator. 42 The majority in Purvis (at pages 160, 161) described the approach to be taken, in this way: In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, section 5(1) [Disability Discrimination Act 1992 (Cth)] requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled … The circumstances referred to in section 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability … 43 It is necessary to identify the objective features, which surrounded the treatment of Mr Bassili. Taking his evidence at its highest these would seem to include: Mr Bassili was on a disability pension; Before the issue of the exclusion order he had lost significant sums of money through gambling; Ms Baker observed that he was extremely distressed as a result of losing money on 20 June 2006; On the same day, Mr Bassili was seen by his treating doctor who recorded, that he was 'in great distress says lost $1000'; Later that day Star City received a request from Mr Bassili's treating doctor that his patient be banned from the Casino because he suffered from 'a severe mental illness involving delusional thoughts and cannot gamble responsibly'; That request was purported to have been made without Mr Bassili's 'knowledge and permission'. 44 From the list above the only material factual matter in dispute is whether Mr Bassili's GP sought his permission before writing to the Casino. For the purpose of this application I proceed on the basis that as asserted, Mr Bassili neither consented to the exclusion order or authorised his GP to write to Ms Baker. 45 The question to be determined is, is there any evidence which if accepted could support a finding that Star City would have treated a patron without a disability, in comparable circumstances to Mr Bassili (as identified at paragraph [43] above) 'more favourably'. 46 I accept Star City's submission that it is irrelevant in the context of his complaint whether the GP acted without the express authority of Mr Bassili. There is no evidence to suggest that Star City acted other than in good faith after receiving the letter from the GP. There is no evidence for example that its officers conspired with the GP to obtain the letter or had any reason to believe that he acted without the permission of his patient. 47 Mr Bassili in submissions to the Board correctly observed that Star City does not as a matter of course exclude patrons from the casino even in circumstances where they are known to have lost significant sums of money. It is a matter of common knowledge that in a casino environment most gamblers lose money most of the time. 48 Nonetheless the issue to be decided here is whether there is any evidence which if accepted would support a finding that in comparable circumstancesa patron who did not suffer from Mr Bassili's disability would have been treated more favourably. Having carefully examined all the evidence I could not be satisfied that there is any evidence, direct or indirect, or material capable of being converted into evidence that would support a finding that the treatment afforded Mr Basilli was 'less favourable'. 49 For these reason this part of the complaint is dismissed as it lacks substance. Allegation 2- Failure to enforce the exclusion order 50 Refusal of a service? Neither party addressed this issue. I proceed on the basis that the relevant service is security relating to the admission and screening of patrons and that these 'services' were not provided to Mr Bassili. 51 On the ground of? There is little evidence before me about the circumstances surrounding Mr Bassili's admission to Star Casino in February 2007. All that it is known is that he claims that he lost his 'entire savings' through gambling on 8 February 2007. 52 Having carefully examined all of the material before me it is apparent that there is no direct evidence that would support a finding that one of the reasons the relevant staff of Star City failed to take action to exclude him from the casino 'because of' his disability/s, nor is there any evidence available upon which that inference could be drawn. 53 For these reasons this part of the complaint is dismissed. Summary 54 Taking Mr Bassili's evidence at its highest, I am satisfied that the conduct about which he complained to the Board lacks substance. Accordingly I have decided to exercise my power to dismiss the complaint under section 102 of the Act. Claim for compensation 55 Given the finding recorded above it is not within my power to order that Star City pay compensation to Mr Bassili as urged by his representative as such order can only be made where a complaint is found to have been substantiated: section 108(2) of the Act. 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.