Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Trevanion v Wyangala Country Club Ltd [2012] NSWADT 257 Hearing dates: 30 November 2012 Decision date: 30 November 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. The termination of the licence agreement between Mr Trevanion and Wyangala Country Club is stayed pending further order of the Tribunal. 2. The hearing is expedited. Catchwords: ANTI-DISCRIMINATION - application for interim order - termination of licence agreement to run a bistro at the Club -- serious question to be tried in relation to homosexuality discrimination - balance of convenience with applicant Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at [11]. Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57. Category: Interlocutory applications Parties: Carl Gary Trevanion (Applicant) Wyangala Country Club Ltd (Respondent) Representation: C Trevanion (Applicant in person) Garden & Montgomerie, Solicitors (Respondent) File Number(s): 121131 REASONS FOR DECISION Introduction 1The Wyangala Country Club has terminated an agreement with Mr Trevanion to run its bistro because of complaints about the food. Mr Trevanion maintains that the real reason for the termination is his homosexuality. There is a serious question to be determined, that is the Club's liability for homosexuality discrimination. Mr Trevanion should be allowed to continue to run the bistro until his complaint is heard because the loss to him in the short term outweighs any loss or prejudice to the Club. Background 2Mr Trevanion has been running the bistro at the Club since May 2011. He has complained about homosexual harassment by two people employed by the Club as bar staff - Tim Stevens and Lisa Moncrief, as well as others. He says Mr Stevens and Ms Moncrief encouraged members to sign a petition complaining about the food and the service. The petition was presented to the Board of the Club and a plea made for Mr Trevanion's licence agreement to be terminated. On 26 October 2012, following an election, the new Board terminated the licence agreement. 3Mr Trevanion conducted a survey of diners over the Easter long weekend in 2012 which he says showed that 98% of patrons were more than happy. 4The period of the complaint, as accepted by the President of the Anti-Discrimination Board, is from June 2011 to 8 October 2012. The letter terminating the licence agreement was not received until 26 October 2012. The Tribunal dealt with events arising after the period of the complaint without objection. In those circumstances, the Tribunal amends the complaint, of its own motion, to include the period until 26 October 2012: AD Act s 103. Principles relevant to interim orders 5An interim order can be made to preserve the rights of the parties prior to hearing: Anti-Discrimination Act 1977 (AD Act), s 105. The threshold question is whether there is a serious question to be tried or, put another way, whether the applicant has made out a prima facie case: Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at [11]. If there is, the Tribunal must then balance the inconvenience or injury which the applicant would be likely to suffer if an interim order is refused with the injury or inconvenience which the respondent would be likely to suffer if an interim order is granted: Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57. Serious question to be tried? 6It is unlawful for a person, including a corporation, to discriminate against another person on the ground of homosexuality by evicting the person from business accommodation or subjecting the person to any other detriment: AD Act, 49ZQ(2)(b). Mr Trevanion alleges that by terminating the licence agreement the Club has subjected him to a detriment. 7The termination will not be unlawful unless it meets the definition of discrimination in 49ZG. I understand Mr Trevanion to be complaining of direct discrimination as defined in s 49ZG(1)(a): (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of homosexuality if, on the ground of the aggrieved person's homosexuality or the homosexuality 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 he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person 8To substantiate a complaint of direct discrimination on the ground of homosexuality, Mr Trevanion would have to prove two things: differential treatment and causation: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [45]. Differential treatment is treatment that is less favourably than, in the same circumstances or in circumstances which are not materially different, the treatment that was or would have been afforded to a real or hypothetical person who is not homosexual. I am not aware of a real person with whom Mr Trevanion can compare himself, so the comparator may have to be a hypothetical person. 9The second element of direct discrimination is causation. Mr Trevanion would have to prove that there is a relationship of cause and effect between his homosexuality and the termination. At least one of the reasons for the termination must have been his homosexuality even if that reason was not the dominant or a substantial reason for the treatment: AD Act, s 4A. 10Mr Trevanion's case, as I understand it, is that a group of about 15 members, led by Mr Stevens and Ms Moncrief, lobbied the new Board to terminate the agreement. Because Mr Stevens, Ms Moncrief and others had allegedly been harassing him because he is gay, Mr Trevanion has concluded that his homosexuality was one of the real reasons for their actions and that the Board members who voted for the termination were similarly motivated. One reason for reaching that conclusion is that his survey in 2012 showed that patrons were more than happy with the food and service. 11While Mr Trevanion must prove his case, I am satisfied that there is a serious question to be determined, that is whether the Club has discriminated against him on the ground of homosexuality. Balance of convenience 12I must now weigh up the effect of making or not making an interim order on Mr Trevanion and the Club. The effect on Mr Trevanion is that he will not be able to receive the income he had been receiving as the licensee of the bistro. He says he has no other job prospects and that his health has been affected by the alleged harassment and the termination of the agreement. Although the Club says that it does not have another person in mind to run the bistro, it is highly likely that it would find a replacement if an interim order is refused. That means that even if his complaint is substantiated, it is unlikely that the Club would be able to break its agreement with any new licensee. 13From the Club's point of view, the relationship with Mr Trevanion has broken down to the point where it would be untenable for him to continue. While relations are extremely tense, Mr Trevanion runs the bistro independently of the Club and employs his own staff. In the short term I am satisfied that the arrangement can continue. The Club did not submit that it would suffer any financial loss if Mr Trevanion continues to run the bistro pending the hearing of this matter. 14In summary, Mr Trevanion has raised a serious question about homosexuality discrimination and the balance of convenience between the parties is such that an interim order should be granted. Future conduct of proceedings 15Mr Trevanion was entitled to apply for an interim order even though the President of the Anti-Discrimination Board had not finished investigating his complaint. Because an interim order has been made, it makes sense for the matter to proceed to a hearing expeditiously. In those circumstances, the parties should request that the President of the ADB formally refer the complaint to the Tribunal under s 93C of the AD Act. Order 1. The termination of the licence agreement between Mr Trevanion and Wyangala Country Club is stayed pending further order of the Tribunal. 2. The hearing is expedited. ********** 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: 06 December 2012