Equal Opportunity Division of New South Wales CITATION: Cassidy -V- Cronulla Golf Club Limited [1998] NSWEOD COMPLAINANT: Cassidy RESPONDENT: Cronulla Golf Club Limited NUMBER: 215 of 1996 Mr D. Bitel ( Judicial Member ) TRIBUNAL: Ms M Alt Mr W Bowtell GROUNDS OF COMPLAINT: DATES OF HEARING: 07/16/1997; 12/08/1997 DATE OF JUDGMENT: 11/14/1998 Complainant: Mr P Dowdy (Counsel) LEGAL REPRESENTATIVES: Respondent: Mr I Neal (Counsel) JUDGMENT IN FAVOUR OF: Complainant The complainants, John Patrick Cassidy and Alan Francis Hocking, are members of the Cronulla Golf Club Limited ("the Club"). On 11 November 1994 a complaint was filed by them with the Anti-Discrimination Board alleging age discrimination in the area of registered clubs against the Club. The initial complaint raised two areas of concern. The second concerning arrangements conferred by the Club on veteran golfers was resolved. The Board was unable to resolve the first complaint which alleged that the Memorandum and Articles of the Club which provided for half price membership for those that had been full members continuously for over 20 years and are aged over 65 was a breach of the provisions of sections 49ZYP and 49ZYA of the Anti-Discrimination Act. As the complaint was unresolved the complainants requested the Board to refer it to the Equal Opportunity Tribunal for hearing and determination. This request was approved by the President of the Board on 2 September 1996. The complaint came for hearing before the Tribunal on 16 July 1997. Although all the evidence and submissions were taken on that date the matter could not be finalised as a result of certain actions of the complainant which occurred on 17 July 1997 and an application made by the respondent which was heard by the Tribunal on 8 December 1997. The Tribunal now delivers its decision in respect of all issues concerning the complaint. It was conceded at the hearing by both parties that there was factually little issue to be resolved by the Tribunal. Statements of evidence were tendered by each of the complainants and by Reginald Kelvyn Quartly and Robin D'arcy Clark on behalf of the complainants. Statements of evidence were filed by Neville Arthur Stanford, the President of the Club and Malcolm Workman Wright, the Secretary of the Club, both of whom also gave brief oral evidence and also briefly answered questions under cross examination. Much of the evidence which was provided gave a history of the membership structure of the Club and of meetings held to consider and pass or reject various resolutions put to the meetings concerning membership provisions. For relevant purposes there was no dispute between the parties in this regard and for the purposes of the issue to be determined by the Tribunal, it is unnecessary to traverse this evidence. It is sufficient to record that on 1 July 1994 at a meeting held at the Club premises an Article which is now known as Article 20(d) was passed by special resolution. The Article provides: "20(d) A Full Member or a Full Female Member, other than a Life Member, who has reached his or her 65th birthday and who has been a Full Member or a Full Female Member or a combination of both of the Club continuously for the preceding 20 years shall pay an Annual Subscription of one half of that payable in accordance with sub-clause (a) of this Article provided that a member of any class who has qualified under any previous Article providing similarly for 10 year membership shall retain the privilege of such half annual subscription for his or her class of membership. This sub-clause shall not apply to a person during the period he or she is a Country Member." This replaced an earlier Article 18(e) which provided: "A playing member of any class, other than a Life or Absentee Member, who has reached his or her 65th birthday and who has been a financial member of Cronulla Golf Club Limited for the preceding 20 years shall pay an annual subscription one half that payable in accordance with Article 18(a) above. Provided that a member of any class who has qualified under the previous 10 year membership shall retain the privilege of half annual subscription for his or her class of membership." As noted by Mr Cassidy at paragraph 13 of his statement of evidence: "The effect of the new Article is to provide that the 20 year qualifying period had to now be 20 years continuous Full Membership or Full Female Membership rather than the previous requirement of having been a "financial member" of the Club for the preceding 20 years." It would seem that the effect of this Article has been a running sore amongst some of the members of the Club for some years and various attempts have been made to remove from the Article the reference to age as a criterion for eligibility for the half fee concession as it was termed by Mr Cassidy. He also contends that the half fees is provided as a bonus for members reaching 65 years of age who have been full members continuously for 20 years. Votes do not appear to have achieved the required 75% majority to overturn the Article. Evidence was given as to the financial consequences to the Club of the continuation of this concession. Mr Cassidy records that at the time of the 1996 Annual Meeting in September 1996 there were 215 half fee members including half fee lady members. As the present annual subscription for a full member is $700.00 per year and for a full female member $585.00 per year, he calculated that the half fee concession represented a loss in subscription income of about $71,000.00 per year for the Club. He made his complaint after it became unlawful to discriminate by reference to age. Mr Clark, a former Captain and President of the Club and Member of the Board from 1981 to 1994, in his statement of evidence considered the financial implications of the half fee concession and concludes that in the absence of half fees, fee subscription discounts for the year to 30 June 1996, the overall annual subscription would have been able to be reduced by $70.00 for men and $54.00 for ladies. Mr Hocking in his statement of evidence inter alia expresses concern that the lost revenue means that a lot of work around the Club that should be attended to is not done, examples of which he then provides. Mr Quartly, a former Greens Chairman and Vice President of the Club, similarly records his view that due to financial pressures and lack of funds necessary maintenance work could not be carried out and machinery could not be purchased. Mr Cassidy was born on 26 February 1937 and joined the Club as a member on 28 January 1965 and has held various committee positions with the Club. He has been a member continuously since 1965. Mr Hocking was born on 7 February 1931 and joined the club on 12 December 1952 and has been a member continuously since that date similarly holding various committee positions. Mr Stanford, in his statement, provided the Tribunal with a history of the Club. He was born on 26 February 1931 and has been a member of the Club since 31 March 1982 and is the Club President. Whilst in oral evidence he conceded that a simple majority of members present at the meeting and eligible to vote had favoured the change in the Article, the 75% majority vote had not been achieved. He disputed that it was a valid exercise to conclude that the Club would obtain the extra $71,000.00 if the half fee concession did not apply pointing out to the Tribunal that additional factors could effect the revenue of the Club if the concession were removed which could result in a similar amount of lost income. Mr Wright provided the Tribunal with a detailed summary of the membership make up of the Club and gave evidence as to the historical reason for the introduction of the concession. The complainants' case simply put contends that the Act renders unlawful discrimination by virtue of age in defined situations. Whilst conceding that it may be necessary for the Club to provide a mechanism for persons who are unable to pay the fee to be looked after, that objective should be achieved in a manner which does not make age the determinative factor as to do so discriminates unlawfully. The Tribunal was drawn to the attention of comments of Justice Lockhardt in the Human Rights and Equal Opportunity Commission v Mt Isa Mines 46 FCR 301 at p. 326: "Anti-discrimination legislation must be understood not only by statutory bodies that enforce it but by all sections of the community because the implications and effects of the legislation could touch us all. It is important that the legislation is not approached and construed with fine and nice distinctions which will not be comprehended by any except experts in the field nor is there any need for them." Section 49ZYP provides as follows: "(1) It is unlawful for a registered club to discriminate against a person (not being a person under the age of 18 years) on the ground of age: (a) by refusing or failing to accept the person's application for membership of the club; or (b) in the terms on which it is prepared to admit the person to membership of the club. (2) It is unlawful for a registered blub to discriminate against a member of the registered club on the ground of age: (a) by denying or limiting access to any benefit provided by the club; or (b) by depriving the member of membership of the club or varying the terms of that membership; or (c) by subjecting the member to any other detriment. (3) Nothing in subsection (1) or (2) applies to or in respect of a registered club: (a) that has as its principal object the provision of benefits for persons who are of a particular age or age group; or (b) so as to prevent the retention by the club of different categories of membership for members of different ages or age groups. (4) In determining whether the principal object of a registered club is as referred to in subsection (3)(a), regard is to be had to: (a) the essential character of the club; and (b) the extent to which the affairs of the club are so conducted that the persons primarily enjoying the benefits of membership are of the relevant age or age group; and (c) any other relevant circumstances." Section 49ZYA(1) provides as follows: "A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of age if, on the ground of the aggrieved person's age or the age 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 who is not of that age or age group or who does not have such a relative or associate who is that age or age group; or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply." The respondent's Counsel in carefully reasoned submissions contended that the complainants had failed to establish that the discrimination was unlawful. First, referring to section 49ZYP(2)(a) the respondent argued that the concession conferred on members aged over 65 was not a benefit which brought into operation the provisions of this subsection. By statutory comparison the Tribunal's attention was drawn to the provisions of sections 49ZYL(2), 49ZYM(2) and 49ZYN(2)(a) all of which provide "nothing in this section applies to or in respect of benefits, including concessions, provide in good faith to a person by reason of his or her age" or words to similar effect. Further, the definition of the word benefit in the Macquarie Dictionary, 2nd Edition and in the Oxford English Dictionary do not expressly define a benefit as a concession. Thus, the respondent contends that the term "benefit" does not include a concession. The Macquarie Dictionary 2nd revised edition defines the term "benefit" inter alia as "anything that is for the good of a person or thing ... a payment or other assistance given by an insurance company, mutual benefit society, or public agency." (page 194) The Oxford dictionary defines a benefit as inter alia "a good deed, a kind action, a kindness, a favour, a gift, a pecuniary advantage". However, it should be noted that the term "concession" was used by the complainant in his pleadings but does not appear in the actual Article the subject of the complaint. The Tribunal is of the view that on its face, the Article does provide a benefit to certain club members by reference to age and accordingly accepts the complainants' submission in this regard. The respondent next contended that the effect of the Article was not to impose on the complainant a detriment within the provisions of section 49XYP(2)(c). The Tribunal's attention was drawn to the decision of the Supreme Court of New South Wales in Tullamore Bowling and Citizens Club Limited v Lander (1984) 2 NSWLR 32. The Tribunal's attention was drawn by the complainant in response to the decision of the English Court of Appeal in Ministry of Defence v Jeremiah 1981 1 QB 87 where Lord Justice Brandon noted at page 99 that "I do not regard the expression "subjecting ... to any other detriment ..." as used in section 6(2)(b), as meaning anything more than "putting under a disadvantage". The question which arose in this case can therefore be simplified to this: "Did the difference in treatment referred to above put the men examiners under a disadvantage by comparison with the women examiners?" The Tribunal accepts, relying on this approach, that the complainant is under a disadvantage by reference to his age in that, inter alia, he does not receive the half fee advantage available to older members. The respondent's third contention relied on the defence contained in section 49ZYP(3)(b) which the respondent argues makes lawful "categories of membership" for members of different ages and thus makes age a lawful point of discrimination between "categories of membership". The respondent noted that the NSW Registered Clubs Act and the Articles of the respondent Club use the word "class" and not "category" (although the latter term does appear once in sub-rule 10(b) of the rules of the Club). The respondent submits that the term "category" according to the ordinary and natural meaning of that word is "any group or division of a wider and larger group". Article 20(d) of the rules refers to "classes" of membership. When members satisfy the qualifications imposed by that rule, they will join a different "category" of membership to which the so called concessional rate applies. The Club, it was submitted, is permitted by 49ZYP(3)(b) to retain such a category of member with a concessionary rate. The Tribunal notes that the Macquarie Dictionary 2nd revised edition definition of the term "category" includes the term "class" (page 305). The complainant submits that the two words are synonymous and are meant to be so. The Club was not set up to provide for persons of a particular age group and there is no class or category of membership of the Club which is based on age or age groups other than those created for junior members, ie those under 18 (Articles 9 and 10). The rights of members and eligibility for various classes of membership (Articles 11 to 13) also only refer to age in this context. The Tribunal accepts the complainant's submission with regard to the respondent's third contention. The Tribunal therefore accepts the submission that the effect of Article 20(d) is to confer a benefit on members of the Club by reference to age and as such, the Article unlawfully discriminates within the meaning of the Act. Section 49ZYP(3)(b) does not apply in this case to authorise this discrimination. The Tribunal must now determine what orders to make in the case having regard to the Tribunal's finding that the Article does offend against the provisions of the Act. The complainant urged the Tribunal to strike out the whole of the offending Article 20(d). The respondent submitted that the Tribunal should only strike out the words "who has reached his or her 65th birthday". Section 113(1)(b)(ii) and (iv) give the Tribunal a broad power. The Tribunal does not believe that it is appropriate for it in this case to redraft the Article for the Club. Rather, the Tribunal having examined and pronounced on the issues in the dispute, the Tribunal considers it appropriate to strike out the full Article ab initio. The members of the Club can then have the opportunity to meet and in accordance with the law can redraft an article to suit their needs. The complainant also sought pecuniary damages. Having regard to the fact that the complainant was running the case in the nature of a representative action on behalf of other members who felt similarly to him, and the order of the Tribunal to strike out the Article as and from the date of its passing, and further having regard to the overall circumstances of the case and the nature of the complaint, the Tribunal does not consider that this is an appropriate case to order financial compensation in favour of the complainant. The Tribunal also does not believe that the Complainant should be conferred a financial benefit at the expense of the Club which would have the effect of putting him at advantage as against other members who might have felt similarly aggrieved and on whose behalf the Complainant has effectively commenced these proceedings. Finally, with regard to the issue of costs, the Tribunal notes the provisions of section 114 of the Act. The Tribunal does not consider that there are circumstances in this case which justify the making of an order for costs in favour of the complainant. Accordingly, the Tribunal makes the following orders: That Article 20(d) of the Memorandum and Articles of Association of Cronulla Golf Club Limited be declared unlawful within the meaning of the Anti-Discrimination Act. There shall be no order as to costs. 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