Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Johnson v Free Spirit Management Pty Ltd (No 2) [2011] NSWADT 29 Hearing dates: 20 May 2010 Decision date: 16 February 2011 Jurisdiction: Equal Opportunity Division Before: E Grotte, Judicial Member E Hayes, Non Judicial Member N Hiffernen, Non Judicial Member Decision: The complaints of age discrimination and victimisation are substantiated. The Respondent to pay the Applicant compensation in the amount of $7,500 within 28 days of this decision. Catchwords: Age Discrimination, Teenagers, Victimisation Legislation Cited: Anti Discrimination Act NSW 1977 Evidence Act 1995 Cases Cited: Burns v Laws (EOD) [2008] NSWADTAP 32 Qantas Airways v Gama [2008] FCAFC 69 Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 Hall v Sheiban (1985) ALR 503 Hall v Sheiban (1989) 20 FCR 217 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 Dutt v Central Area Health Service [2002] NSWADT 133 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Watersv Public Transport Corporation (1991) 173 CLR 349 Category: Principal judgment Parties: Ryan Johnson (Applicant) Free Spirit Management Pty Ltd (First Respondent) NRMA Tourist Park No 3 Pty Ltd (Second Respondent) Representation: S Williams (Respondent) A Johnson (Applicant - agent) File Number(s): 081097 Reasons for Decision The Complaint 1On 16 April 2008 Ryan Johnson lodged a written complaint with the Anti-Discrimination Board (ADB) in the following terms: "I believe I was discriminated against because I look like a teenager. During the last Christmas holidays I stayed at Ocean Beach Caravan Park. During my stay there I was walking to the beach from my caravan (with my girlfriend) on the night of 11/1/2008 at approx. 9:00PM. (The caravan park has the beach at the front of the caravan park). I was approached and stopped by the caravan park manager Phillip Fordyce and he told me no teenagers are allowed to go to the beach at night anymore; he then told me to go back to my caravan. I told the manager I was 18 years old and had paid to stay at the park based on a (sic) adult tarriff (sic) rate due to being 18 years old. He told me bad luck it was a new rule, I told him he was discriminating against (sic) based on age, he told me no teenager was allowed to walk around his caravan park at night unless they were with there (sic) parents. I went back and got my parents from the caravan, we then approached the manager to ask for an explanation. The manager told us in front of my parents he does not allow teenagers to go to the beach at night regardless of the beach not being owned by the caravan park, my parents told him he was discriminating based on how old someone looks, my parents asked him, has my child done anything wrong to warrant this behaviour. He said no, but other teenagers had caused some problems and that they were clamping down on all teenagers. He said (the manager) that the park management had changed and that certain privileges for all teenagers had been reduced, and that the owner of the park could do what they (sic) liked and make any rule they (sic) wanted. At the end of the holiday my mother wrote a letter to the caravan park management to seek an apology for the incident and they replyed (sic) 3 days later cancelling our pre-booked holiday for the following year." 2The ADB carried out an investigation into the complaint and in doing so, wrote to the licensee of the Ocean Beach Holiday Park on 23 April 2008 seeking a response to the complaint. 3On 26 May 2008 Ms Sonia Duniam of Messrs Quinlan Miller & Treston, Solicitors, responded stating that the legal owner of the Ocean Beach Holiday Park (Ocean Beach) is NRMA Tourist Park No. 3 Pty Ltd (NRMA Tourist Park) and that it is managed by Free Spirit Management Pty Ltd (Free Spirit). Ms Duniam also stated that Phillip Fordyce is the Park Manager, a position he has held since February 2003, and that he is employed by Free Spirit. 4Ms Duniam responded to the complaint on behalf of Ocean Beach in the following terms: Background The Ocean Beach Holiday Park ("the Park") accommodates up to 4000 guests during peak season and attracts a large number of families with small children due to the facilities we have in place. We therefore feel it is very important that all rules are complied with, and respect and consideration are shown to all other guests so that everyone is able to enjoy their stay. The Johnson family has stayed with us on previous occasions and we have received specific complaints on the last two occasions from both long-term and short-term guests in relation to the behaviour of Ryan and Jessie Johnson and some of their friends. In September 2007 the family stayed at the Park and we were forced to contact Mrs Darleen Johnson by telephone following complaints about the excessive noise and foul language coming from their cabin. It was found that there were several teenagers congregating in the cabin, and no adult was present. Mrs Johnson advised us she was four-wheel driving at Stockton and would not return to the Park until later that evening. We received a further complaint at 10:40pm on that same day (29 September 2007) complaining of excessive noise and foul language coming from the Johnson's cabin. More recently the family stayed at the Park in January 2008. Again we received multiple complaints about the behaviour of a group of teenagers, which included Ryan and Jessie Johnson. We received verbal complaints about the teenagers' behaviour on 3, 4, 5, 10 and 12 January 2008, and written complaints on 8 January and 10 January 2008. This problem is not restricted to the Johnson family and their friends, but has been an endemic problem across the Park. We have therefore had to increase security presence and more regularly patrol the grounds. There has (sic) also been some recurring issues with local teenagers being overly aggressive and threatening to Park guests, both on Park grounds, on the beach in front of the Park and at the local skate park. We have tried to address this by encouraging guests to return to their sites after dark, but especially by 10pm. The following is extracted from just one of the complaints we received about inappropriate behaviour by groups of teenagers staying at the Park: Over the past 12 months there has (sic) been a few ongoing problems with underage teenagers congregating around the caravans drinking ... On the night of 4 th January there was a lot of comings and goings with teenagers carrying eskys. Later during the night we heard teenagers yelling loudly and swearing. At around 1:30am a girl was vomiting outside our bedroom window ... Around 2:30-3am about 6 boys arrived at their van, threw one boy inside who was totally drunk - yelled 'did you see me punch that sign down there?' and then said they were going off to the skate park. During this time the swearing was bad. ... As we take our children and grandchildren up for a holiday we find it totally distressing when episodes like this happen. The language that comes from these teenagers when they congregate is totally filthy. This is an extract from another complaint during the same period: We stayed for one week from 2 nd - 9 th Jan 2008 ...During our stay I found the park to be overrun with noisy teenagers late at night, during our week stay at least 4 nights we were woken with noise, bad language, fights, drinking and running through the toilets screaming. One night my sister and I witnessed 4 boys full on fighting in front of us, luckily some fathers broke it up. I was very concerned for my toddler who battled to sleep through the noise and as a result was upset regularly. My teenage son wanted to go home early due to the intimidation he felt from groups of boys his age ...I feel your security needs to be tightened and after hours noise monitored more closely. Parents are not taking responsibility for their children and from where we could see this seems to be regular visitors causing the trouble and continuing the loud noise. Park Policy In response to Mr Johnson's comment that rules and information be given prior to booking a holiday, we advise that our guest information is provided upon registration, and can be found on the back of the Park map (see copy attached). The sub-heading 'Quiet Time' reads: Please be respectful of the enjoyment of others within the park by restricting noise from television, music and social gatherings between the hours of 10pm and 8am. As the Johnson's had stayed with us on several prior occasions they should all be well aware of the Park Rules and policies. Additionally, it is by no means an unusual policy for a Park to have a curfew and noise restrictions in place. Furthermore, our rule is not addressed specifically to teenagers, it is simply that in practise (sic) it is most often teenagers who we find tend to ignore or disregard the rules. While this is for the benefit of all of our guests to ensure everyone can relax and enjoy their time at the Park, this is also in compliance with local council noise restrictions and with the Protection of the Environment Operations Act 1997 , and the Protection of the Environment Operations (Noise Control) Regulation 2000 . These are also the times widely used in the industry as a noise rule curfew for fair and equal enjoyment of the place of accommodation by all guests. We have found that on a practical level we have had no choice but to restrict the movement around the Park of groups of teenagers, for the safety and wellbeing of all of our guests and their personal possessions. As such we submit that Ryan Johnson was not subjected to any form of discriminatory behaviour as he was not treated any differently to anyone else his age, or of any other age, exhibiting the same behaviour. It was not Ryan's age that was the issue. It was the rude and thoughtless behaviour, and the behaviour of other groups of teenagers. Response to the Complaint Mr Johnson was at no point 'forced' to stay inside his caravan at night, he was simply requested to refrain from making excessive noise, and moving around the park after 10pm with groups of other teenagers. Again this is in line with our Park's policy, local council noise restriction regulations legislative requirements and to ensure the peace and well-being of our other guests. In relation to the letter Mrs Johnson advises she sent, no such letter was received until the discrimination complaint paperwork was received. We have chosen to refund the Johnsons' deposit and cancel their next visit due to the number of complaints we have received specifically mentioning behaviour by their children, and their children's friends. We have lost several long-term guests as a result of this behaviour. As such we most certainly do not feel that any sort of compensation should be payable to Mr Johnson. We regret that Mr Johnson feels he has been discriminated against, but we do not feel this to be the case, and as such no apology will be forthcoming. We submit that we have a valid and justifiable reason requiring all groups, including teenagers not to wander around the Park after dark, but especially after 10pm, because we feel not to do so would cause undue safety risks and threaten the peace, safety and well-being of our guests as a whole. Unfortunately it was the teenagers causing the difficulties. If it was (sic) groups of older people, the same rules would still apply. We submit that a balance of competing interests needs to occur, that of the rights of young people to congregate with their friends and make noise, and that of the safety and well-being of all of the remaining guests, and neighbouring residences, along with our duty of care to all of our guests. 5Attached to this Reply were statements from Phillip Fordyce and Vanessa Fordyce. 6Phillip Fordyce stated as follows: This statement is regarding a conversation between Phillip Fordyce, Manager of Ocean Beach Holiday Park and Ryan Johnson, - guest of Ocean Beach Holiday Park that took pace on the 11 th January 2008. As a result of their continued defiance to park rules and undue noisy or unruly behaviour during their last stay, the family has been advised not to make further bookings in our park. There had been a number of complaints against them during this stay. Their 2009 booking was forthwith cancelled and a full refund was forwarded. The letter of complaint that Mrs Johnson supposedly forwarded to the Park had to date not been sighted or received until the discrimination paperwork arrived. Ryan Johnson stated that the conversation took place at about 9pm, however I did not go out into the park, until after 10pm that night, as our noise curfew is not in place until 10pm. Upon seeing Ryan Johnson with several other teenagers I approached the group and advised them to stay within the park and return to their sites. Ryan questioned this request and I explained to him that it was in response to several complaints received regarding groups of teenagers making excessive noise while moving around the park at night after 10pm. Agreements that were in place for several long-term casual van sites in the park have since been terminated due to the behaviour of the teenagers who were part of the group with Ryan. I do not believe he was "targeted". He was the only one who questioned my instructions when addressing the group. Ryan left the area and returned shortly afterwards with his parents. They also questioned our policy and procedures regarding teenagers and the 10pm curfew. I stated that teenagers were not to congregate in the parks public areas after 10pm, but at this time they needed to return to the respective sites and keep their noise to an acceptable level. This is not a new rule and forms part of the Park Rules as displayed on the back of the park map. I also relayed to them the number of complaints being received daily about the teenagers' movements and noise at night. While I was talking with Mr & Mrs Johnson, Ryan kept interrupting stating that he knew some of the locals, Ryan was using profanity which Philip took offence to and asked that he stop swearing. Mr & Mrs Johnson said they were paying a lot of money to stay here and relax, I replied back to them advising there were lots of people staying here trying to enjoy the park but with the teenagers being so disruptive and noisy it was not possible for anyone to relax. The guests occupying the site across from the Johnsons had also made several complaints specifically about the family. Vanessa Fordyce - Manager of Ocean Beach Holiday Park and Luke Smith - Senior Security Officer both visited the Johnson site on the 12 th January 2008 at approximately 6pm to speak with Ryan's parents regarding the ongoing complaints relating to their site. In January 2008 there was an apparent elevated amount of aggressive behaviour being shown towards our park guests by the locals both on the beach and at the local skate park. This was happening at night and during the day. This was the reason that we were advising all teenagers to remain within the park after dark. As there had been alleged assaults on other guests staying at the park, I was only being mindful of my duty of care and responsibility (as manager) to all guests. In conclusion, I do not believe that any person especially Ryan was targeted in any way. I was concerned for the safety of all young persons who were guests of the park at the time. If my concern was misinterpreted as discriminatory, I regret this but as stated previously - my actions were only taken in "my duty of care" of all guests. 7Vanessa Fordyce stated as follows: I was not present when Philip was talking to the Johnsons on the 11 th January 2008, however, I could see them from our apartment window, which is above the reception and security area. Listed below are the Security, Reception and Night duty log book entries: Philip advised me that he had been approached by another park guest, who informed him of an alleged assault involving a teenage boy staying on the Johnson site and his daughter. The father of the girl involved asked that we not take the allegations any further for fear of retribution. Summary of Ocean Beach Log Book Entries 29.09.07 during day-time patrols by Philip, multiple teenagers were seen at the cabin (PLC5) foul language was heard and we do not believe an adult was on site. Vanessa rang Darleen Johnson who was not on site at the time she claimed that they were 4X4 driving at Stockton and would not return to the park until later that evening. 29.09.07 - 10.40pm; the occupants of this cabin (PLC5) without compliance, patience wearing very thin, approx 6 teenagers in cabin again no adult present. 4.01.08 - verbal complaints about teenagers on site 364 (the agreement for this site with the park has since been ended) including Ryan and Jessie Johnson. 12.01.08 - Luke (Senior Security Guard) and Vanessa (Park Manager) went to Site ES16 at approximately 6pm to talk to Mr & Mrs Johnson regarding the following issues; behaviour of the teenagers as we had received several verbal complaints about the noise from their site, we discussed the group of teenagers (Ryan and Jessie were part of this group) constantly wandering the park at night well after 10pm as these areas are directly across the road from cabins and caravan sites where people were trying to enjoy some peace and quiet. We advised them that the beach is an area where teenagers can congregate after 10pm if they wanted to but please be aware of the 'local' element as it had escalated recently. If the teenagers chose to meet on the beach then they need to move through the park both to and from the beach quietly. Given that we also received several verbal complaints via reception relating to the above log-book entries we had to take the matter seriously and ask the teenagers to return to their sites or move to the beach at 10pm. One evening Philip and I did witness some fathers rounding up their children at 11pm, this is too late as our curfew is 10pm. Our park is aimed at families, many of whom have young children who go to bed well before 10pm. These guests put up with noise before this time but are entitled to respect of the rules once the time is up. We chose to take no further action after the September incidents, giving the Johnson family the benefit of the doubt. When I went back through the log-books and put the September incidents together with the Christmas incidents it became clear to me that the Johnson family show no respect for our park rules or other park guests right to quiet enjoyment of their holiday. They show no respect towards the Security team or management of the park. We are a very large park holding up to 4000 guests during our peak times and we expect respect towards Security and other park guests to be observed at all times. 8On 16 June 2008 Ryan Johnson relevantly responded as follows: On the night of the incident when I was discriminated against based on my age I was not with a group of teenagers as stated by the managers, when in fact I was only going to meet a girlfriend and we were going on a quiet walk to the beach at approximately 9:00pm. There were no other teenagers around me or groups of teenagers as stated by the managers of the park. I have included a statutory declaration by an independent witness who saw the manager stop me. This witness noticed the aggressiveness and forceful nature Mr Fordyce used to stop me from proceeding to the beach. I have also included a (sic) statutory declarations from other parties who stayed at the caravan park during the Christmas holidays 2007-2008. The park managers have in their response to my complaint made accusations regarding certain teenagers or groups of teenagers and there (sic) behaviour. The park managers have listed certain incidents has (sic) happening at the park during my holiday but none of the alleged complaints are in writing and as such I believe they have been made up from a log of incidents related to other teenagers not related to me or my brother. I cannot be held responsible for the actions of other teenagers I do not know the alleged teenagers and cannot be held responsible for there (sic) attitude to park management. I feel the management has added there (sic) grievances with other teenagers not related to me in there (sic) submission to the anti discrimination board to justify there (sic) discrimination of any and all teenagers staying at there (sic) park. I understand that running a caravan park of over 4000 people would be difficult but blaming me for the actions of other teenagers I feel is not justified or warranted. I have stayed at the park on many occasions since I was a young child with my parents and I have enjoyed myself and obeyed the park rules, but after the incident I had with the park manager I notice a different attitude by the security guards towards teenagers at the park. When I asked one of the security guards why the management was treating teenagers different (sic) this year I was told that the caravan park had been sold to NRMA and the NRMA had decided to implement some changes to make the park more appealing to retired people and parents with small children and as such no teenagers was (sic) allowed to walk around after 9:00 without a parent or adult present I understand that there has (sic) to be rules in all caravan parks as my parents have taken me to approximately 30 caravan parks but I must say I have never experienced the attitude that was shown towards teenagers at the Ocean Beach Caravan park for Christmas holidays 2007-2008. The managers of the park have said in there (sic) submission that they stopped people going to the beach that night due to problems with the locals on the beach, but on the might in question when I was stopped from going to the beach because I looked like a teenager many families and other adults were walking past the manager and myself on there (sic) way to the beach without the manager warning them of any problems at the beach. I believe the managers (sic) actions were discriminating because I looked like a teenager and the caravan parks new management had implemented new rules to stop teenagers walking around by themselves after 9:00pm. The management has made accusations regarding my parents (sic) caravan site at the park but the only thing that happened during our holidays at our site was a noise complaint from a retired couple in the van opposite us due to my father watching the cricket in our annex at approximately 10:00pm one night and this was sorted out by moving the TV into our caravan which allowed the retired couple to go to bed at approximately 8:00pm without hearing our TV. After much investigation and contacting other families who stayed at the park during the Christmas holidays I was able to find out who was responsible for one of the incidents the park tried to blame on me or my brother the allegation in question follows: The managers made an allegation regarding an assault this is from a statement made by Vanessa Fordyce: "Philip advised me that he had been approached by another park guest involving a teenage boy staying on the Johnson site had assaulted his daughter". This allegation is totally false and untrue as the child who committed the alleged assault Daniel Kubbere was staying as a guest on site 364 with a family by the name of Palmer and I have included a statutory declaration from Mrs Palmer regarding the alleged incident as been (sic) nothing more than a dispute between two long term friends. This incident has nothing to do with me and I take offence that the caravan park have tried to implicate me in something I had nothing to do with what so ever (sic). In finalizing (sic) my response I believe the attitude of the caravan park towards teenagers has changed since the new owners took over and as such there (sic) actions towards myself and other teenagers staying at the park is a new strategy by the new owners trying to deter guests who have teenage children from staying in there (sic) park. 9Attached to Mr Johnson's response were statutory declarations from the following witnesses: a)Darleen Johnson; b)Betty (Elizabeth) Camarsh; c)Carol Palmer; and d)Anthony Johnson. 10Anthony Johnson, the Applicant's father, acted as agent for Ryan Johnson and assisted him with cross-examination of witnesses during the Tribunal hearing into the complaint. Accordingly, his statutory declaration was not relied upon. The Tribunal has not taken it into account in reaching its decision and accordingly, it does not reproduce its content in this decision. 11In her statutory declaration dated 24 June 2008, Darleen Johnson stated that Ryan Johnson is her son and they stayed together at the respondent's recreation park from 25 December 2007 until 23 January 2008. She stated that on the night of 11 January 2008 Ryan returned to the caravan upset. He told her and his father that Philip Fordyce stopped him from walking to the beach because he looked like a teenager. She stated that Ryan told her that he told Mr Fordyce that he was 18 years of age but Mr Fordyce would not listen. She stated that Ryan told her that Mr Fordyce was forceful in preventing him from walking past him. She stated that she and Ryan's father immediately went to find Mr Fordyce to ask him what was going on. She stated that Mr Fordyce told her that from then on no teenager was allowed to walk around the caravan park by themselves without a parent after 9:00pm. Mrs Johnson claims that Mr Fordyce was belligerent towards them and said that he could do whatever he wanted. She claims that she was the required to walk with Ryan to the beach so that he could meet his friends. Mrs Johnson stated that her children have not ever caused any problems while staying at the respondent. She claims that if they had caused problems, the respondent would not have accepted their bookings. Mrs Johnson claims she and her family have stayed at the respondent over four times. She claims that her children are not troublemakers and she has not raised her children to be disrespectful. 12Betty Camarsh stated in her statutory declaration that she was at the respondent caravan park on the night of 11 January 2008. She stated that at about 9:00pm, she saw Ryan Johnson and a girl about 30 metres away from where she was standing. She stated that she could see that Ryan was about to walk past the park manager, when she noticed the park manager questioning him. She stated that she could not hear what was being said, but she noticed the park manager appeared aggressive and that he was using his body to prevent Ryan from getting past him. She claims that Ryan appeared to her to be very upset. Ms Camarsh stated that over the following hour she noticed that the security guards were stopping teenagers from walking around the park and they were being escorted back to their caravan sites. 13Carol Palmer stated in her statutory declaration that the alleged assault was not in any way connected with Ryan Johnson or anyone staying on the Johnson site. She stated that the incident in question concerned not an assault, but a dispute between two long-term friends. She stated that the incident was brought to her attention by security staff at the respondent. Ms Palmer stated that the respondent's management was not allowing teenagers to walk around the park after 9:00pm and that the respondent's security staff escorted teenagers to their caravans and were harassing them to comply with the new rules. She stated that this upset a lot of families. Section 102 Tribunal Proceedings 14The complaint could not be resolved by way of conciliation and was referred to the Administrative Decisions Tribunal (the Tribunal) pursuant to section 93C of the Anti-Discrimination Act 1977 (ADA). 15On 17 December 2008 the matter was listed for a case conference, at which Deputy President Hennessey presided. Deputy President Hennessey noted that the Tribunal enquiry was into two complaints. The first, being an allegation of age discrimination in the provision of goods and services and the second, being an allegation of victimisation. Deputy President Hennessey directed that the applicant lodge Points of Claim together with statements and other material by 15 January 2009 and that the respondent lodge Points of Defence and material in reply by 20 February 2009. 16On 22 December 2008 the applicant lodged a statement in the Tribunal setting out his Points of Claim as well as the relief sought. 17The following summary of the complaint has been adopted by this Tribunal from the decision of a differently constituted Tribunal dated 2 February 2010: The applicant complains that he was discriminated against on the ground of age in the provision of services to him. He complains that during the period of complaint, which is between 11 and 21 January 2008, he was resident in the Holiday Park with his parents when he was denied free movement through the park after 9pm each night because he looked like a teenager. He was 18 years of age at the relevant time. The applicant states that on 11 January 2008 he was stopped by Phillip Fordyce, the manager of the Holiday Park, employed by the respondent and told that he was a teenager and that teenagers were not allowed to walk around by themselves after 9pm unless they had an adult present with them. In a later conversation with his parents, the applicant states that Mr Fordyce said that new rules were implemented regarding teenagers. In addition, the applicant claims he was victimised by the respondent by it having cancelled his parents' 2009 booking, a few days after his parents had sent the respondent a letter complaining about their attitude to the applicant and other teenagers. The applicant seeks compensation of $33,000 for "age discrimination" because he was treated less favourably because he looked like a teenager, $33,000 for the blanket policy of the age discrimination for the provisions of goods and services directed at all teenagers staying within the park and $39,000 for victimisation... 18The Respondent did not lodge any Points of Defence, but relied on a Reply lodged on 25 February 2009 refuting the claims and seeking a dismissal of the complaint on the ground that it is frivolous, vexatious and lacking in substance, pursuant to section 102 of the ADA. 19The matter proceeded to hearing on 14 May 2009 before a differently-constituted Tribunal. On that day there was discussion concerning the witness statements and whether or not witnesses should be available for cross-examination. The applicant relied on additional statements from the following witnesses: a)Ryan Johnson; b)Jesse Johnson; c)Samuel John Couttit; d)Conrad Moores; and e)Jessica Hugo 20On 14 May 2009 the respondent also applied to dismiss the complaint pursuant to section 102 of the Anti-Discrimination Act 1977 (NSW). Written submissions were provided to the Tribunal and to the applicant and his agent, Mr Anthony Johnson, on the basis that the complaint of victimisation should have been brought by Ryan Johnson's parents because he has no standing to bring the complaint and because his complaint is misconceived, frivolous, vexatious and lacking in substance. 21The respondent submitted that it had not been demonstrated by the applicant that the respondent was the provider of goods or services (section 49ZYN of the ADA) and that there was no contractual or other relationship between the applicant and the respondent. It was also submitted that there was no refusal to provide goods or services, and that terms on which those services were to be provided were not specified. It was submitted that further the applicant has no standing as his parents are the proper applicants because they had the contractual or other relationship with the respondent. The respondent submitted finally that the applicant was not a party to the booking made by his parents and therefore could not be victimised. 22On 2 February 2010 the differently-constituted Tribunal delivered its decision. The application for dismissal was refused. 23The Tribunal noted that "goods" are not defined in the ADA but that "services" are in section 4 and include services related to recreation. The Tribunal noted that the authorities require that the term "services" be interpreted liberally, although the services in question should be identified with reasonable precision ( Waters -v- Public Transport Corporation (1991) 173 CLR 349). The Tribunal also noted that the applicant identified the service in this case as "free movement through the Holiday Park after 9pm". 24That Tribunal accepted that if the applicant's case that he was restricted in his movements around the Holiday Park after 9pm is taken at its highest, then there is evidence capable of supporting a finding that the respondent provides services relating to recreation to those persons who stay at the Holiday Park on payment of a tariff. The Tribunal accepted that there is evidence that the applicant is one of the two children referred to in the letters to the Holiday Park confirming the family's reservation. The Tribunal accepted that a term on which those services may be provided may include the movement throughout the Holiday Park. The Tribunal considered that it was not essential to the applicant's claim that the applicant, independent of his parents, be in a contractual relationship with the respondent in order for the respondent to provide services relating to recreation to him. It noted that there is evidence that the applicant was sojourning at the Holiday Park with his parents. 25The Tribunal accepted that the applicant identified the terms on which the respondent offered the services, namely not being permitted to be present in the Holiday Park after 9pm without an adult. 26The Tribunal also accepted that the applicant has standing to bring the complaint pursuant to section 87A(a)(i) of the ADA and that it was not necessary for him to personally have a contractual relationship with the respondent in order to make a complaint. 27The Tribunal was satisfied that there was evidence of the applicant having attended with his family on prior occasions at the Holiday Park. The Tribunal therefore did not consider that it was misconceived or lacking in substance to claim that the applicant had been subject to detriment by the respondent's cancelling the reservation of his parents for the following year . 28The Tribunal was therefore not persuaded by the respondent's submissions that the applicant's complaints were misconceived or lacking in substance or that he lacked the requisite standing to bring the complaints. Substantive Tribunal Proceedings 29At the Tribunal Hearing the following witnesses gave oral evidence in addition to their statement evidence: a)Ryan Johnson b)Darleen Johnson c)Betty Camarsh d)Phillip Fordyce 30The statutory declarations of Samuel Couttit, Jesse Johnson, Jessica Hugo and Conrad Moores were objected to on the basis that they were irrelevant to the question of discrimination against the applicant on the ground of age. The objection was upheld and they were excluded. 31Ryan Johnson told the Tribunal that he dictated his statement to his mother, who wrote it for him. Mr Johnson maintained that his conversation with Mr Fordyce occurred at about 8:30/9pm just after the sun had set. He maintained that Mr Fordyce was aggressive towards him and he denied that the conversation took place after 10pm. He denied being in a group and stated that even his girlfriend was ahead of him on their way to the beach. He stated that he felt harassed by Mr Fordyce, but he denied swearing at him and he denied that Mr Fordyce told him about complaints of excessive noise. Mr Johnson conceded that he was aware of the noise curfew and that it applies to all guests. 32Mr Johnson agreed that there was no evidence of his assertion that he had become depressed as a consequence of the incident and that there was no evidence of any economic loss. He agreed that these claims ought to be withdrawn but he maintained that he was required to stay in his cabin after 10pm as a consequence and that he was required to be accompanied by a security guard to be escorted around the holiday park. He maintained that he felt humiliated by this experience because he had been treated like a criminal. 33Darleen Johnson told the Tribunal that the letter of complaint was written to the respondent the day after the family returned home from their holiday. She stated that about a week later they received a letter from the respondent cancelling their reservation for the following summer. She stated that management did not mention any problem to her when she returned the key upon departure and their booking for the following summer holidays was confirmed. She believed that their booking was cancelled because of the complaint. Mrs Johnson maintained that her conversation with Mr Fordyce occurred after 9pm but before 10pm because Ryan had returned to their caravan just after 9pm. She stated that she was aware of the quiet time rule because her family had previously infringed it by having the television too loud. She denied that Ryan swore at Mr Fordyce. She confirmed that Ryan dictated the complaint to her and that she wrote it on his instructions. She stated that she had previously worked as a legal secretary. 34Betty Camarsh told the Tribunal that she observed Mr Fordyce having a conversation with Ryan Johnson around 9pm on 11 January 2008 and although she could not hear what was said she could see that Mr Fordyce was blocking Ryan with his body. They were standing about 30 metres away from her. She stated that she had a clear line of sight and that there was a girl with Ryan. 35A statement of Phillip Fordyce dated 12 May 2009 with attachments was tendered into evidence at the hearing. The attachments were as follows: a)Guest Information Sheet; b)Ocean Beach Holiday Park Map; c)Complaint dated 8 January 2008; d)Complaint dated 10 January 2008; e)Diary extract for 4, 5 and 6 January 2008; f)Diary extract for 29 January 2008; g)Security Log for 11 and 12 January 2008; h)Letter from Ocean Beach Holiday Park to Mrs Darleen Johnson dated 1 February 2008. 36In addition the letter dated 27 December 2007 confirming the reservation for the holiday for the period 26 December 2008 to 26 January 2009 was admitted into evidence in the proceedings. 37In his statement dated 12 May 2009 Mr Fordyce stated the following: a)He and his wife, Vanessa, are the managers of the Ocean Beach Holiday Park and have been so employed since February 2004; b)The Ocean Beach Holiday Park accommodates up to 4000 guests during the peak season and caters for persons of all ages, including families with young children as well as older persons; c)Since 2004 there has been a curfew between 10pm and 8am and guests are notified of this curfew as it is stated in the guest information sheet as "Quiet time: Please be respectful of the enjoyment of others within the park by restricting noise form television, music and social gatherings between the hours of 10:00pm and 8:00am"; d)The curfew applies to all guests, regardless of age. It is the only practical means of controlling noise restrictions; e)In the past few years there have been a number of complaints about excessive noise and teenagers' behaviour which has prompted management to enforce the 10pm curfew; f)Management has also increased security and has more recently, patrolled the grounds of the holiday park; g)Incidental issues have also arisen with local teenagers being overly aggressive and threatening park guests on the holiday park grounds as well as on the beachfront of the holiday park and at the local skate park. In order to prevent this occurring, management has encouraged guests to return to their campsites after dark, but especially by 10pm; h)A number of complaints have been made about inappropriate behaviour by groups of teenagers, including a verbal complaint on 11 January 2008 about site ES16; i)On 11 January 2008 he had a conversation with Ryan Johnson but the conversation did not take place until after 10pm because he was not patrolling the grounds until the curfew commenced; j)Ryan Johnson was in the company of several other teenagers and he approached the group and asked its members to stay within the holiday park grounds and return to their campsites; k)He explained to Ryan Johnson that he had received complaints about teenagers making excessive noise while moving through the holiday park grounds; l)Mr Johnson then left the area and returned shortly thereafter with his parents who then questioned him about the park's policies and procedures regarding the curfew; m)Ryan Johnson was not forced to stay inside his caravan at night but he was requested to refrain from making excessive noise and from moving around the holiday park grounds after 10pm with groups of other teenagers; n)The request is consistent with the holiday park's policy, local council noise restrictions and attempts to ensure peace and well-being of other guests; o)He denied being aggressive to Ryan or that he harassed him; p)On 1 February 2008 Vanessa Fordyce wrote to Mrs Darleen Johnson cancelling the reservation for the following December/January in the following terms: We regret that we are unable to keep your holiday plans with us for next December/January. Due to the number of complaints received during and after your last stay with us regarding behaviour, abusive language and fighting by teenagers associated with your site. Our park is aimed at families with young children and we have received complaints from parents who find such behaviour offensive and frightening to their small children. 38Mr Fordyce told the Tribunal while giving oral evidence that he was concerned with the noise levels in the park generally and that at all times he was trying to enforce the quiet time rule because teenage behaviour is a problem at the park. He said that it would not have made any difference to him had he known that Ryan Johnson was over the age of 18 years. Mr Fordyce told the Tribunal that Ryan was part of a group and that he did not approach him separately. He engaged in conversation with Ryan because he spoke up. 39Mr Fordyce conceded that the name "Johnson" had been added later in the diary entry for 10.40pm on 29 September 2007. That diary entry read as follows: "Kids continually moved on for noise most went to beach. Although noise is still travelling. Hope it will get cold for them so they go to bed. P5 told multiple times to lower noise, without compliance. Patience with them is wearing thin. Submissions 40The applicant made written submissions received by the Tribunal on 8 June 2010 and the respondent made written submissions received by the Tribunal on 22 July 2010. Findings and Reasons 41The applicant, Ryan Johnson, seeks relief for alleged discrimination of the ground of his age and for alleged victimisation. 42The owner of the recreation park, NRMA Tourist Park No 3 Pty Ltd, did not provide any evidence to the Tribunal at any stage of the proceedings, nor did it participate in the proceedings. Reference to the respondent in this decision is reference to the first respondent, Free Spirit Management Pty Ltd (Free Spirit). 43There is no dispute that the applicant, at the time of the alleged contravention of the ADA, was 18 years of age and had paid an adult tariff for his accommodation and stay at the recreation park in the month of January 2008. 44There is no dispute that he and his family were staying at the recreation park of the Respondent for the month of January 2008 and that he and Mr Fordyce engaged in a conversation on the evening of 11 January 2008. 45There is no dispute that Ryan Johnson and his family were booked to return to the Respondent's recreation park the following year for the January 2009 holidays. There is no dispute that the reservation for that period had been confirmed on 27 December 2007. 46There is no dispute that guests of the recreation park are provided with a sheet outlining various services provided by the Respondent as well as expectations regarding all guest behaviour including a "quiet time" from 10pm to 8am, known as a noise curfew. 47There is no dispute that Mr Fordyce, as the manager of the recreation park, was acting at all relevant times as the agent and employee of Free Spirit. 48Mr Johnson claims that on the evening of 11 January 2008 he was stopped at around 9pm, one hour prior to the noise curfew, on his way to the beach with his girlfriend, by Mr Fordyce and that he was informed that he could not move around the recreation park after 9pm because there had been problems with teenage behaviour. Mr Johnson claims that his free movement around the recreation park after 9pm was subsequently restricted. He claims that this occurred because he "looked like a teenager" and that the same restrictions were not applied to the adults, that is persons 18 years and over. 49Mr Fordyce, claims that he did not "target" Mr Johnson, but spoke with him because he was part of a larger group and he was informing the group of the curfew and ensuring that "quiet time" was observed for the benefit of all of the respondent's customers. Age Discrimination 50Discrimination on the ground of age in the provision of goods and services is prohibited by sections 49ZYA and 49ZYN of the ADA. 51Relevantly, section 49ZYA provides: (1) 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)... (2) For the purposes of subsection (1)(a), something is done on the ground of a person's age of it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to person who are of that age or age group. (3) ... 52Relevantly, section 49ZYN provides: 1)It is unlawful for a person who provides, for payment or nor, goods or services to discriminate against another person on the ground of age: a)by refusing to provide the other person with those goods or services, or b)in the terms on which the other person is provided with those goods or services. 2)... 53Mr Johnson's complaint is cast as direct discrimination. The previously-constituted Tribunal accepted that the respondent provided services in relation to recreation and that those services included movement around the recreation park. This Tribunal adopts this description of the services provided by the respondent to Ryan Johnson and his family by Free Spirit. 54In order to determine whether Mr Fordyce's conduct as an agent of Free Spirit constitutes direct discrimination on the ground of age in the provision of goods and services to Mr Johnson, the Tribunal must ask itself whether the conduct complained of amounts to differential treatment and, if so, whether that treatment was on the ground of age ( Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5). In Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [231] ( Purvis ) the High Court said that those two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially. 55The approach stated by the High Court in Purvis is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated. However when the comparator is a hypothetical person the differential treatment question and the causation question amount to a single question, that is, why was the person treated as he was? ( Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 at [7] and [8]) and in Dutt v Central Area Health Service [2002] NSWADT 133 ( Dutt ) where the Tribunal stated: When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds for treatment of the applicant were. If an applicant was Chinese and was refused service (or denied promotion, or given menial duties etc), we cannot say how the hypothetical comparator, who is not Chinese, would have been treated in the same circumstances. The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently. In Aldridge the Appeal Panel said that "if there is no relevant differential treatment it is unnecessary to consider the issue of causation". In the case of a hypothetical comparison, an extension of this might be: `but there is no basis on which to assess whether there would have been differential treatment until the cause for the actual treatment is known'. This is not to disagree with the analysis in Aldridge, but to explain why in this matter, and we suggest in many others where the comparator is hypothetical, the two questions as to "less favourable treatment" and "on the ground of race" might be answered as part of the same reasoning exercise. 56The majority of the High Court in Purvis said that: ... the central question will always be - why 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'. 57The ADA uses the words "on the ground of", rather than "because of" but no different meaning is intended. 58In the present circumstances, in order to determine whether there has been differential treatment, a comparison must be made between the way Mr Fordyce treated Mr Johnson and the way he would have treated an adult person over the age of 18 years. 59The Appeal Panel in Burns v Laws (EOD) [2008] NSWADTAP 32 said the following in relation to the standard of proof that applies in discrimination matters: 136 Briginshaw is a case about the standard of evidence required to meet the burden of proof. It is doubtful whether Briginshaw needs to be incanted as ritually as it is in anti-discrimination law. See generally de Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger', (2003) 27 Melb Uni LR 308. See also the recent decisions, Qantas Airways Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and Granada Tavern v Smith [2008] FCA 646 at [88]- [90]. 60Further in Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 ( Chand ) the Appeal Panel referred to the Federal Court's discussion of the "Briginshaw standard" in Qantas Airways v Gama [2008] FCAFC 69 [at 55] and concurred with the approach taken by Branson J [at 139] in the Gama decision, where Her Honour stated as follows: The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises . . . that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved. [Branson J at [139] ] 61In addition the Appeal Panel referred to s 140 of the Evidence Act 1995 at [56] in Chand . That section provides: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 62This Tribunal has followed the approach set out in Chand , including the factors set out in s 140 of the Evidence Act 1995 . 63Having considered all of the evidence before it, the Tribunal is satisfied on the balance of probabilities that Mr Fordyce, as the agent of Free Spirit, treated Mr Johnson less favourably on the ground of his age, in that, it restricted his movement around the recreation park on the basis of his appearance as a teenager. The Tribunal is satisfied that Mr Fordyce would have treated an adult, or a person whom he perceived to be an adult, in a different and more favourable way by allowing free movement around the recreation park even after 10pm. 64Mr Fordyce's evidence was that the park had previously had problems with local teenager groups and with teenagers holidaying at the park. Mr Fordyce's evidence was that there had been past complaints regarding Mr Johnson and his teenager brother, Jesse, the previous year, and that there had been a complaint in September 2007 about teenagers congregating in the Johnson family cabin without an adult present. It was submitted to the ADB on behalf of Mr Fordyce by his solicitors that the respondent had received a number of oral complaints about the behaviour of a group of teenagers, which included Ryan and Jesse Johnson, on 3, 4, 5, 10, and 12 January 2008, as well as written complaints on 8 January and on 10 January 2008. 65In the Tribunal's view, it is disingenuous of Mr Fordyce to say that he did not stop Mr Johnson on the evening of 11 January 2008 on the ground that he appeared to be a teenager, but that he was part of a larger group of teenagers and that he spoke with Mr Johnson only because he spoke up. Implicit in that evidence is that he perceived Mr Johnson to be part of that group of teenagers and that he was one of them. 66The evidence is clear that Mr Fordyce had already formed the view, on the basis of the complaints prior to 11 January 2008, that Mr Johnson's, and his younger teenage brother's, behaviour was unacceptable and had to be curtailed. The Tribunal is of the view that Mr Fordyce intended to restrict the movements of teenagers in the recreation park in order to control the situation and prevent problems perceived to be caused by groups of teenagers. 67The submission made on behalf of Mr Fordyce to the ADB was that if groups of older people had bee n causing the problems, which the teenagers had been causing, then the same rules would apply to them. Implicit in this is that Mr Fordyce attributed conduct to teenagers, which he did not attribute to adults, and that teenagers were treated differently because of the problems they were causing management. The Tribunal accepts that Mr Ryan Johnson was stopped on 11 January 2008 because he was perceived to be a teenager and as such was treated differently from a person who was perceived to be an adult. The different treatment was the restriction of his free movement around the recreation park after 10pm. 68At the Tribunal hearing much was made of the noise curfew. It was submitted that the noise curfew applied to everyone at the park, whether they be young or old. The Tribunal accepts this evidence but is of the view that it is irrelevant. The real issue is whether Mr Johnson was restricted in his movements because he appeared to be a teenager. The Tribunal is satisfied that Mr Johnson has established that he was discriminated against on the ground of his age. 69The complaint of age discrimination is substantiated. Victimisation 70Mr Johnson asserts that he was victimised by the respondent because his planned holiday for the following January 2009 was cancelled by the respondent and that the cancellation was because his family had informed the respondent that it would be lodging a complaint with the ADB. 71Section 50 of the ADA makes victimisation unlawful. It provides: (1) It is unlawful for a person ("the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. The questions of law turn, to Matter was remitted on victimisation and remedy (set out orders) 72The first element of victimisation is that there is an event, which is a trigger for a subsequent detriment. The trigger in this complaint is the letter from the Johnson family to the respondent dated 27 January 2008. There is no dispute that this letter was written. The respondent disputes that it received the letter prior to cancelling the forthcoming holiday. The respondent claims that it cancelled the reservation because of the complaints it had received about the Johnson family. 73The second element the applicant must prove is that there was a detriment. The alleged detriment is the said cancellation of the holiday the following year and the loss of the enjoyment of the recreation park. 74The third element is causation. The applicant must establish on the balance of probabilities a causal nexus between the trigger and the detriment. 75The coincidence between the sending of the letter indicating that there would be a complaint to the ADB and the subsequent cancellation of the reservation is too strong to ignore. The letter cancelling the reservation is dated 1 February 2008. The letter indicating that a complaint would be made was sent four days prior to 1 February 2008, sufficient time, in the Tribunal's view, to receive the letter from the Johnsons. The Tribunal accepts Mrs Johnson's evidence that if there had been a problem of sufficient magnitude to cancel the reservation for the following year, the Fordyces would have been expected to have raised it with the Johnsons when the cabin key was returned at the conclusion of the holiday in January 2008. Furthermore the reservation had been confirmed in December 2007 even after there had been complaints about the behaviour of Ryan and Jesse Johnson in September 2007. These matters lead the Tribunal to conclude that the letter from the Johnsons dated 27 January 2008 was the trigger for the letter from the respondent dated 1 February 2008, which caused the detriment. 76The detriment affected the applicant as well as his parents and other family members, because he was prevented from returning to the recreation park. 77The Tribunal is satisfied that Mr Johnson was victimised within the meaning of section 50 of the ADA. The complaint of victimisation is substantiated. Relief 78The Tribunal is satisfied that it is appropriate that there should be an award of general damages for the act of discrimination, which covers matters such as hurt, humiliation and injury to feelings, because there has been a contravention of a statutory right to not be discriminated against on the ground of age in the provision of services. The Tribunal is also satisfied that there should be an award for general damages for the victimisation. 79As acknowledged by Wilcox J in Hall v Sheiban (1985) ALR 503 at 543, the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult: ....damages for such matters as injury to feelings, distress, humiliation and the effect on the complainant's relationships with other people are not susceptible to mathematical calculation...To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon the complainant by failing to grant relief in respect of a proved item of damage. 80Mr Johnson gave evidence that he was humiliated by the restrictions placed on his movement around the recreation park, because he was perceived to be a teenager who potentially was causing trouble. The Tribunal is satisfied that Mr Johnson was treated disrespectfully and accepts that he would have felt embarrassed and humiliated. 81The amounts sought are very large and in the Tribunal's view not justified. The Tribunal is satisfied however that the appropriate amount of compensation is $5,000 in respect of the age discrimination complaint that has been substantiated. 82The Tribunal is satisfied that the appropriate amount for the victimisation is $2,500 because the applicant would have been deprived of staying at the respondent's caravan park and because o f the humiliation suffered because of being excluded from vacationing there. 83The Tribunal directs the respondent to pay the amount of $7,500 to Mr Johnson within 28 days of this decision. ********** 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. Decision last updated: 18 February 2011