CITATION: Turner v Secretary, Coogee Randwick RSL Club Ltd t/as Coogee Diggers [2009] NSWADT 220 DIVISION: Equal Opportunity Division APPLICANT Paul Turner PARTIES: RESPONDENT Secretary, Coogee Randwick RSL Club Ltd t/as Coogee Diggers FILE NUMBER: 091031 HEARING DATES: 2 June 2009 SUBMISSIONS CLOSED: 2 June 2009 DATE OF DECISION: 19 August 2009 BEFORE: Britton A - Deputy President CATCHWORDS: Review of President's decision to decline to entertain complaint LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Battenberg v The Union Club [No.2] [2003] NSWADT 187 CASES CITED: Ekermawi v The Administrative Decisions Tribunal of New South Wales [2009] NSW SC143 JA v State of New South Wales [2003] NSWADT 272; Karekar v Tafe Commission of NSW [2000] NSWADT 187; KB v Commissioner of Police, New South Wales Police Service [2002] NSWADT 30; Langley v Niland & Anor (1981) 2NSWLR 104 at 107;Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998); Tredinnick v Wentworth Area Health Service [2000] NSWADT 172. APPLICANT In person REPRESENTATION: RESPONDENT P Vannan, agent ORDERS: 1.Pursuant to s 96(1) of the Anti Discrimination Act 1977 leave is granted for the complaint lodged by Mr Turner with the President, Anti-Discrimination Board on 19 September 2008 to be the subject of proceedings before the Tribunal 2. Matter is listed for a case conference on 30 September 2009 at 12.00 noon. REASONS FOR DECISION 1 Mr Paul Turner has lodged a complaint with the Anti-Discrimination Board alleging discrimination on the grounds of disability by registered club, Coogee Diggers. Mr Turner was told to leave the Club on two occasions because he had allegedly acted in an inappropriate and aggressive manner towards patrons and staff. In a letter dated 2 October 2008, the Club's Chief Executive Officer advised Mr Turner that he had been expelled from the Club on the ground that it had been '…found proven that he had acted in a manner contrary to the [Club's] Constitution'. 2 After investigating the complaint a delegate of the President of the Anti-Discrimination Board notified Mr Turner that his complaint had been declined under s 92(1) of the Anti-Discrimination Act 1977 (the Act) on the grounds that it was lacking in substance, in that: He had not provided sufficient evidence to substantiate his complaint that he had been treated less favourably … on the grounds that he has a disability The Club had provided a plausible and non-discriminatory reason as why he had been refused a service. 3 Mr Turner requests that the Tribunal exercise the power conferred by s 96 of the Act to grant leave for his complaint to proceed. Unless leave is granted, Mr Turner's complaint cannot be the subject of proceedings before the Tribunal, or put another way, the President's decision to decline the complaint will stand. These reasons address whether leave should be granted. Lacking in substance 4 The President's decision to decline Mr Turner's complaint was made under s 92(1)(a)(i) of the Act which provides that if, at any stage of the President's investigation of a complaint, s/he is satisfied that the complaint, or part of the complaint is lacking in substance, the complaint may be declined in part of whole. 5 The term 'lacking in substance' in the context of State and Commonwealth anti-discrimination legislation has been considered extensively. The Equal Opportunity Division of this Tribunal has consistently applied the test enunciated by Hunt J in Langley v Niland & Anor (1981) 2NSWLR 104 at 107 — can it be demonstrated that there exists no factual basis for the allegations, or that the allegations lack merit? (See Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998); Tredinnick v Wentworth Area Health Service [2000] NSWADT 172; Karekar v Tafe Commission of NSW [2000] NSWADT 187; KB v Commissioner of Police, New South Wales Police Service [2002] NSWADT 30; JA v State of New South Wales [2003] NSWADT 272 at [18]; Battenberg v The Union Club [no.2] [2003] NSWADT 187.) Approach to granting leave 6 The test for the granting of leave was recently considered by Acting Justice Schmidt in Ekermawi v The Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [38]): Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand an obviously meritorious complaint will not be refused leave where for example on the other, it is apparent that the complaint lacks substance, or where the complaint has already been redressed elsewhere, leave may be refused if that is what justice dictates. Unlawful discrimination by a registered club 7 Section 49O(2) of the Act makes it unlawful for a registered Club to discriminate against a member of the Club on the ground of disability: (a) by denying the person access, or limiting the person's access, to any benefit provided by the registered club, or (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. 8 If leave is granted for Mr Turner's complaint to proceed, he must establish: That the conduct about which he claims falls within s 49O(2) and, That he has, or is thought to have, a disability as defined by s 4 of the Act and, If argued as 'direct discrimination', that he was treated less favourably than a person without his disability, or a person not thought to have his disability, in the same circumstances or circumstances which are not materially different to his circumstances (less favourable treatment), and That one of the reasons for any less favourable treatment was because he has, or is thought to have, a disability (causation). Decision made to the President 9 In his complaint to the President, Mr Turner made wide-ranging allegations about his treatment by the Club. Central to his complaint was his removal from the Club on the evenings of 7 and 22 August 2008. 10 Mr Turner also referred in his complaint to the Club's decision to expel him. That decision falls outside the period of the complaint. Therefore, even if Mr Turner were to be successful in the application, the subject of these reasons, the expulsion decision cannot be determined by the Tribunal unless leave is granted to Mr Turner to amend the complaint (ss 103 and 89B(2)(b) of the Act). These reasons are confined to a consideration of whether leave should be granted for the complaint to be referred in respect of those allegations which fall within the period of the complaint — that is, the decisions to remove Mr Turner from the Club, as referred to above. 11 The Club provided the Board with copies of incident reports prepared by members of staff about the events on 7 and 22 August 2008. In a report dated 7 August 2008 it was recorded that Mr Turner: Behaved inappropriately by 'banging on poker machines' Was aggressive and abusive to a junior member of staff when asked to leave Became increasingly aggressive and threatened patrons when the duty manager intervened, and Had been 'approaching intoxication'. 12 A report dated 22 August 2008 recorded that Mr Turner: Was observed being aggressive towards a patron Told he must leave on account on account of his behaviour of 7 August 2008 Abused the duty manager, and Was 'yelling and screaming' on leaving the Club. 13 The Club denies that staff acted on discriminatory grounds and asserts that on both occasions the decisions were made because of '…concern for staff and patron safety' (President's report, Tab 4). 14 Further, the Club denies that the decision to expel Mr Turner was made on unlawful grounds and contends it was consistent with its 'tough stance on incidents involving threats and/or violence towards other patrons and/or staff'. (President's report, Tab 6) 15 Mr Turner provided the Board with a different factual account of his behaviour (See President's report, Tab 5). Among other things he: Denied banging a poker machine in the manner as alleged Claimed that a Club Director told him that Board members presumed he was drunk on the two occasions which led to his expulsion Denied threatening a patron on 7 August 2008 Alleged that that patron had threatened him, and Denied 'yelling and screaming' on 22 August 2008 and asserts he was unable to do so because of his medical condition. 16 In these proceedings Mr Turner told the Tribunal that he had suffered a stroke and his symptoms included problems with maintaining balance and that his speech was slurred on occasion. He further claimed that his doctors had made a provisional diagnosis of multiple sclerosis (President's report, p 30). 17 In broad terms he contends that Club staff incorrectly presumed he was drunk because of the symptoms of his condition; disregarded his account of the alleged altercation between him, staff and other patrons; and for those reasons, took steps to eject him from the Club. 18 He contends that it is telling that for over 40 years he had been unnoticed as a member of the Club, and: '...less than a year after having being diagnosed as having a stroke, I had been branded a drunk, a trouble maker and a fighter…'. 19 Findings and conclusions The parties have given conflicting accounts about what happened on 7 and 22 August 2008. 20 The President's view that the Club provided a 'plausible and non discriminatory reason' for refusing Mr Turner service is apparently based on the acceptance of the Club's account of the events that occurred on 7 and 22 August 2008. This would also appear to be relevant to the second stated ground for the decision to decline the complaint — insufficiency of evidence to substantiate his complaint that he had been treated less favourably … 'on the grounds' that he has a disability. 21 In my view, in a case such as this, where there is a significant factual contest between the parties, it is premature at the investigation stage to decline a complaint. This is especially the case where the credit of Mr Turner is in issue. 22 Even if Mr Turner's innocent account of his behaviour is accepted, on the material before me there is no direct evidence that one of the reasons for his treatment was 'on the grounds' that he had or was thought to have, a disability. However at this stage it could not be said that there is no indirect evidence to support that finding. 23 In my view it is premature to decline the complaint and for that reason I grant leave for the complaint to proceed. Orders 1. Pursuant to s 96(1) of the Anti-Discrimination Act 1977 leave is granted for the complaint lodged by Mr Turner with the President, Anti-Discrimination Board on 19 September 2008 to be the subject of proceedings before the Tribunal. 2. Matter is listed for a case conference on 30 September 2009 at 12.00 noon. 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.