Administrative Decisions Tribunal New South Wales Medium Neutral Citation: McElroy v Sutton [2012] NSWADT 24 Hearing dates: 31 January 2012 Decision date: 15 February 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. Leave is granted for the applicant's complaint of homosexuality discrimination in the provision of goods and services to proceed. 2. The matter is listed for case conference on 14 March 2012 at 10.30am. Catchwords: LEAVE - complaint declined lacking in substance - whether fair and just for complaint to proceed - merits of the complaint Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Jones and Anor v Ekermawi [2009] NSWCA 388 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133 Category: Interlocutory applications Parties: Ian McElroy (Applicant) Damien Sutton (First Respondent) Craig Waters (Second Respondent) Representation: I McElroy (Applicant in person) D Sutton (Respondent in person) File Number(s): 111138 REasons for decision Introduction 1Mr McElroy has been banned for life from the Royal Hotel, Guyra. The licensee, Mr Sutton, says that the ban was imposed because of suspicions that McElroy was selling drugs and spiking drinks. Mr McElroy denies those allegations and says that at least one of the reasons he was banned was because he is gay. 2The President of the Anti-Discrimination Board declined Mr McElroy's complaint as lacking in substance. Mr McElroy has applied to the Tribunal for permission for his complaint to go ahead: Anti-Discrimination Act 1977 ( AD Act ), s 96. The Tribunal has a discretion to grant or refuse permission for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When making that decision, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint lacks substance. 3In order to decide whether the complaint should proceed I need to examine both the legal and factual basis for the complaint and come to a view as to its merits. Under the AD Act that the legal and evidential burden is on the applicant to prove his case. Legal principles 4It is unlawful for a person who provides goods or services to "discriminate" against another person on the ground of homosexuality by refusing to provide those services: AD Act , s 49ZP. In this case, there is no dispute that Mr Sutton provides goods and services and that he has refused to provide those goods and services to Mr McElroy. If this matter proceeded to a hearing, the issue would be whether Mr Sutton has discriminated against Mr McElroy. 5The first component of the test for direct discrimination is the " differential treatment " test. The treatment afforded to Mr McElroy must be compared with the treatment that would have been afforded to a person who was not a homosexual. 6Mr McElroy did not nominate a person whose treatment could be compared with the treatment he was given. When there is no actual comparator, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that Mr Sutton treated Mr McElroy less favourably than a hypothetical person who was not homosexual by determining that homosexuality was a reason for that different treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133. 7The second component of the test for direct discrimination is "causation". To substantiate her complaint, at least one of the reasons for Mr McElroy being banned from the hotel must be his homosexuality: AD Act, s 4A. Background 8As well as the material in the President's Report, both parties gave some informal evidence while on the phone during the leave hearing. Mr McElroy told me that he has been drinking at the hotel for about 30 years and that he drinks there, on average, four nights a week. Mr Sutton has been a licensee for about the last four years. 9It was not in dispute that Mr Sutton spoke to Mr McElroy on 4 June 2011 in the poker machine room and that nobody else was there at the time. Mr Sutton banned Mr McElroy from attending the hotel for life and there was a heated argument. Both parties agreed that during that conversation Mr Sutton accused Mr McElroy of dealing in drugs and spiking drinks. Mr Sutton says that the day before the ban, some patrons had told him that Mr McElroy had been dealing drugs at the back of the hotel and that was the reason for the ban. Mr McElroy denied the allegations saying that the police have never approached him and that he has never been charged or convicted with any offence relating to selling drugs or spiking drinks. He says that no witnesses have ever been identified nor has any CCTV footage been shown to him 10Mr McElroy's account of the conversation includes an allegation that Mr Sutton said that patrons had been complaining about homosexuals and that he did not want any "homosexual faggots" in the hotel. Mr Sutton denies saying anything about homosexuality during the conversation but admits warning Mr McElroy about his behaviour on a previous occasion when another patron accused him of trying to seduce him in the toilets. Mr Sutton also said that patrons are concerned about homosexuals in many hotels and that his hotel is doing a lot better now that Mr McElroy has been banned. Conclusion 11If Mr McElroy can prove that Mr Sutton said that people had been complaining about homosexuals and that he did not want any "homosexual faggots" in the hotel, it is likely that he would be able to substantiate his complaint. Mr McElroy says that he has witnesses who can confirm that Mr Sutton had previously made 'sly comments' about his homosexuality. Mr Sutton denies that homosexuality was a reason for banning Mr McElroy but admits that he had previous discussions with Mr McElroy about suspected homosexual activity. He also volunteered that patrons of "other hotels" are concerned about homosexuals. 12This is a case where the applicant should be given an opportunity to provide evidence from himself and anyone else who witnessed relevant conversations between him and Mr Sutton. Similarly, Mr Sutton should be given the opportunity to defend himself against the allegation that Mr McElroy has made. I consider it fair and just to give Mr McElroy permission for the complaint to proceed. Order 1. Leave is granted for the applicant's complaint of homosexuality discrimination in the provision of goods and services to proceed. 2. The matter is listed for case conference on 14 March 2012 at 10.30am. ********** 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: 15 February 2012