Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Hammond v Kelky Pty Ltd t/as Tattersalls Hotel Gilgandra [2013] NSWADT 4 Hearing dates: 17 December 2012 Decision date: 10 January 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President D Kelleghan, Non-Judicial Member J Newman, Non-Judicial Member Decision: The complaint is dismissed. Catchwords: ANTI-DISCRIMINATION - complaint of race discrimination in provision of goods and services - Aboriginal woman refused service - case of mistaken identity - refusal of service not on the ground of race Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Category: Principal judgment Parties: Dulcie Alisia Hammond (Applicant) Kelky Pty Ltd t/as Tattersalls Hotel Gilgandra (Respondent) Representation: Legal Aid Commission (Applicant) Whiteley, Ironside & Shillington (Respondent) File Number(s): 121075 REASONS FOR DECISION Introduction 1Mr Weir, the manager of the Tattersalls Hotel Gilgandra, refused to serve an Aboriginal woman, Ms Hammond, and told her to leave the hotel. Ms Hammond complained of race discrimination. Later Mr Weir explained that he had confused her with another Aboriginal woman who he had previously barred. Ms Hammond accepted that explanation but still felt humiliated. She was further upset and embarrassed when Mr Weir revealed that the person he had confused her with had been offering male patrons oral sex in return for a drink. She said repeatedly that the other woman's behaviour was disgusting and that she was not that person. 2We understand and acknowledge Ms Hammond's distress. Mr Weir now realises that he should have checked Ms Hammond's identification before refusing to serve her and has apologised for his mistake. Despite that mistake, Mr Weir has not breached the Anti-Discrimination Act 1977. The real reason for telling Ms Hammond to leave was not her race, it was because he mistook her for someone else. What happened? 3Ms Hammond, who goes by her middle name, Alisia, has lived in Gilgandra since she was 6 years old. She was not a regular patron of the Tattersalls Hotel. She went there only three or four times in 2011. On one occasion when she went there with her friend, Ms Firebrace, she said that the following conversation took place: Mr Weir: You're barred from here. Ms Hammond: What's the reason? Mr Weir: You're just barred. Ms Hammond: You must have me mixed up with someone else. Mr Weir: You're barred. Ms Hammond:(to a female bar attendant) What's happening? Female bar attendant: (shrugging her shoulders) All I know is you're barred. 4Mr Weir essentially agreed with that version of events adding that he told Ms Hammond that she had been barred the other day and that Ms Hammond had said, "What have I done? I haven't done anything. This is just racist." The only significant factual dispute about this conversation is the date that it occurred. Mr Weir says it was on Thursday 20 October 2011 and Ms Hammond says it was on Saturday 12 November 2011. 5Ms Hammond says she remembers the date because she was at court with her granddaughter two days later on 14 November and she asked the solicitor representing her granddaughter to accompany her to the hotel and complain about the treatment she had received the previous Saturday. Ms Hammond did not call the solicitor to give evidence and the hotel's lawyer asks the Tribunal to draw an adverse inference on the basis of that omission. 6Mr Weir says that he wrote the following entry in the hotel's Incident Book on Thursday 20 October: At approx 7.15 pm I noticed an aboriginal woman entering the premises with another female. I was busy with customers and recognised her as the same woman that entered the premises on Tuesday before that caused trouble, Alecia. I asked her to leave as she was on the barred list and she argued with me and told me I had her confused with somebody else. I was busy and asked her to leave again politely. She complained again to another staff member and then left. 7Mr Weir says that he wrote that entry at the end of his shift on 20 October. That evidence was not challenged. Ms Firebrace corroborated Ms Hammond's evidence that the incident occurred on 20 November 2011. 8The details of what happened when Ms Hammond was refused service are not disputed. Neither party challenged the other party's credit. In those circumstances, there is no need to decide exactly when the incident occurred. It was some time between 20 October and 12 November 2011. We draw no adverse inference from Ms Hammond's failure to call the solicitor who she says accompanied her to the hotel a few days after the incident. 9In addition, because there is no material dispute about what happened or as to the credit of any witness, there is no need to make findings about whether the bar was busy at the time or who else was there. Legal test 10It is unlawful for a person who provides goods and services to refuse to provide those services on the ground of a person's race: AD Act, s 19. In this case Kelky Pty Ltd, the company that owns the Tattersalls Hotel, is the "person" who provides the goods and services. We removed Mr Weir as a second respondent because Kelky Pty Ltd is vicariously liable for the conduct of its employees: AD Act, s 53. An employee is not the service provider and is not personally liable for any contravention of s 19. 11Refusing to provide goods or services does not amount to discrimination unless the refusal was "on the ground of" Ms Hammond's race. Section 7 contains the definition of race discrimination: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race 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 of a different race or who has such a relative or associate of a different race... 12Where there is more than one ground for the treatment it is sufficient if one of the grounds or 'reasons' for the treatment is race even if it is not the dominant or a substantial reason: AD Act, s 4A. 13The effect of these provisions is that to prove race discrimination Ms Hammond must establish that Mr Weir treated her less favourably than he would have treated a non-Aboriginal person in the same or similar circumstances; and one of the reasons for that treatment was Ms Hammond's race. 14We will call the first part of the test, "differential treatment" and the second part of the test "causation": Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 at [46] and [47]. Both tests must be satisfied before a complaint can be substantiated. Differential treatment 15Differential treatment involves identifying a real or hypothetical non-Aboriginal person as a "comparator". There is no real comparator in this case so the test must be applied to a hypothetical non-Aboriginal person. 16Ms Hammond must prove that in the same or similar circumstances Mr Weir would not have refused to serve a non-Aboriginal person. The circumstances would be the same if a white person came into the bar and Mr Weir thought that person was a different white person who he had barred previously. In those circumstances, would Mr Weir have told the white person to leave? There is no reason to doubt that he would have. This means that differential treatment has not been proved and the complaint fails. But, in case this conclusion is wrong, we will go on to consider the second part of the test, "causation". Causation 17The causation element requires the Tribunal to ask whether Ms Hammond's race was one of the 'real', ' genuine ' or 'true' reasons for refusing her service: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for requiring Ms Hammond to leave the hotel. 18Ms Hammond submitted that Mr Weir's conduct was discriminatory because he relied on her racial characteristics to identify her rather than asking for her ID. The problem with that submission is that the treatment complained of is requiring Ms Hammond to leave, not the act of mistaking her for someone else or the failure to check her ID. 19We agree that Mr Weir would not have mistaken a non-Aboriginal person for the person he had previously barred. In that sense, "but for" the fact that Ms Hammond is Aboriginal, Mr Weir would not have demanded that she leave. But the High Court has rejected the "but for" test as the test for causation on the basis that is focuses on the consequences for the complainant and not on the mental state of the alleged discriminator: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 at 143. The majority in Purvis focused on the 'true basis' (per Gleeson CJ at 102), 'genuine basis' (Gleeson CJ at 102), or the 'real reason' (McHugh & Kirby JJ at 144) for the treatment. 20Ms Hammond accepted that the reason Mr Weir asked her to leave was that he mistook her for another Aboriginal woman who had been barred. Even if Ms Hammond had not accepted Mr Weir's explanation, it is supported by the following evidence: a) Ms Hammond had attended the hotel at least three or four times in 2011 and had never been asked to leave; b) Ms Firebrace, who was with Ms Hammond, is also an Aboriginal person and she was not asked to leave; and c) Mr Weir behaves in an unbiased way towards Aboriginal people according to an Aboriginal patron of the hotel, Mr Welsh, and a non-Aboriginal patron, Mr Nangle. 21Once Mr Weir's mistaken identity explanation is accepted, it is clear that Ms Hammond's Aboriginality is not one of the real, true or genuine reasons for the refusal. 22Despite agreeing that it was a case of mistaken identity, Ms Hammond relied on two previous incidents in 2011 which she said demonstrated that Mr Weir's treatment of her was on the ground of race. The first incident was that Mr Weir asked to see her photo identification. Ms Hammond showed him her identification. The second incident occurred when Ms Hammond went to the hotel to order take-away alcohol. When she gave Mr Weir her Commonwealth Bank key card, he said, "That's not your key card." She said, "Yes it is." He accepted the card as payment for the goods and that was the end of the conversation. 23Ms Hammond says that she has never seen a non-Aboriginal woman of her age being asked to show her ID or being queried about her key card. 24Mr Weir is a relative new comer to Gilgandra having moved there early in 2010. His explanation for the first incident is that he sometimes asks for photo identification from people he does not know so that he can check to see if they are on the list of people who have been barred from the hotel. Ms Hammond did not attend the hotel regularly and we accept that Mr Weir asked for her ID on that occasion because he did not recognise her. 25Mr Weir's explanation for the second incident was less clear but he said that people sometimes attempt to use a key card that does not have their name on it and he often makes a point of saying that it is not their card. In this instance the comment was made 'jokingly'. 26Neither of these earlier incidents affects the explanation Mr Weir gave for refusing to serve Ms Hammond. Ms Hammond accepts the mistaken identity explanation. That was the real reason for the refusal, not Ms Hammond's race. Order The complaint is dismissed ********** 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: 10 January 2013