McElroy v Sutton (No 2) [2013] NSWADT 9

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: McElroy v Sutton (No 2) [2013] NSWADT 9 Hearing dates: 22 and 23 November 2012 Decision date: 16 January 2013 Jurisdiction: Equal Opportunity Division Before: A Scahill, Judicial Member N Hiffernan, Non Judicial Member D Kelleghan, Judicial Member Decision: Complaint dismissed Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Dutt v Central Coast Area Health Service [2002] NSWADT 133 Jones and Anor v Ekermawi [2009] NSWCA 388 Purvis v NSW (2003) 217 CLR 92, 142-143 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Category: Principal judgment Parties: Ian McElroy (Applicant) Damien Sutton (First Respondent) Craig Waters (Second Respondent) File Number(s): 111138

REasons for decision

Introduction 1The Applicant, Ian McElroy lodged a complaint with the Anti-Discrimination Board on 30 June 2011 that he had been discriminated against on the grounds of his presumed homosexuality in the provision of goods and services by the licensee of the Royal Hotel Guyra, Mr Damien Sutton. Mr McElroy's complaint outlined that on 4 June 2011 he had been abused by the licensee, Mr Sutton and told directly that "homosexual poofters" was (sic) not welcome in his hotel. When he had returned to the hotel the following day the barman, Mr Walls had told him that the licensee had told the barman that he had been refused service and told to leave. Further the complaint stated that "I have not been allowed back in and he has made salacious statements around town concerning sexuality." 2The President of the Anti-Discrimination Board investigated the complaint. The licensee, Mr Sutton, told the President that the ban was imposed because of suspicions that McElroy was selling drugs and spiking drinks. The President declined the complaint as lacking in substance in October 2011. Mr McElroy then sought leave of the Administrative Decisions Tribunal for his complaint to proceed to the Tribunal. In February 2012 leave was granted by Deputy President Hennessy for the complaint of discrimination in the refusal of provision of goods and services on the grounds of presumed homosexuality to proceed in the ADT. During the leave hearing the parties agreed that the Respondent had been providing goods and services and that these had been refused. The precise terms of the refusal however were not clear. At the hearing of the matter in November 2012 the Respondent said that the Applicant was barred for 3 years from the fourth of June 2011 when he had had a discussion with Mr McElroy. Despite not having spoken again to Mr Sutton, Mr McElroy had understood from "talk around town" that he had been barred for life. 3The matter was heard over two days in Armidale. For the Applicant, statements had been filed by the Applicant, Ms Maria Bull, Mr Wayne Leslie and other witnesses who were not called upon. At the hearing evidence was given in the Applicant's case by Mr McElroy, Ms Bull and Mr Leslie. For the Respondent, statements had been filed by Mr Sutton and Mr Walls, the barman. At hearing, Mr Sutton the licensee of the hotel and his business partner Mr Waters gave evidence, as did Senior Constable Robinson of Guyra police and Geoffrey Walls, barman at the hotel.