Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rodwell v. Terrey Hills Golf & Country Club Holdings Ltd trading as Terrey Hills Golf & Country Club [2014] NSWCATAD 34 Hearing dates: 13 August 2013 Decision date: 24 March 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: J Wakefield, Senior Member Decision: Leave for the Applicant's complaint of sex discrimination to proceed is refused Catchwords: Leave - complaint of sex discrimination -complaint declined by President of the Anti-Discrimination Board - whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Cases Cited: AEQ v. Department of Education & Chi v. Technical and Further Education Commission (No 3) [2009] NSWADT 271 Communities [2011] NSWADT 194 Commissioner of Police, NSW Police Force v. Butcher [2011] NSWADTAP 9 Commissioner of Police v Mohamed [2009] NSWCA 432 Dutt v. Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v. Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Gardener Roberts v. State of NSW (Department of Attorney General & Justice) [2013] NSWADT 167 Gardener Robert v. The GEO Group Australia Pty Ltd [2013] NSWADT 166 Gurnett v. Macquarie Stevedoring Co Pty Ltd (1955) 72WN (NSW) 261 Hillie v Henderson Properties Group [2012] NSWADT 194 Jones & Anor v. Ekermawi [2009] NSWCA 388 Mitry v. Abbas [2013] NSWADT 214 Nicholls and Nicholls v. Director General, Department of Education & Training (No.2) [2009] NSWADTAP 20 Salido v. Nominal Defendant (1993) 32 NSWLR 524 Sleiman v. Kmart Australia Pty Limited [2003] NSWADT 21 Tallong Park Association Inc v. Sutherland; State of NSW (NSW Police Force) v. Sutherland v. Tallong Park Association Inc (EOD) 2007 NSWADTAP 19 Walker v. Wakehurst Golf Club Ltd [2013] NSWADT 295 Waters v. Public Transport Corporation (1991) 173 CLR 349 Whitfield (EOD) [2012] NSWADTAP 27 Category: Principal judgment Parties: Eileen Rodwell (Applicant); Terrey Hills Golf & Country Club Holdings Ltd trading as Terrey Hills Golf & Country Club (Respondent) Representation: Atanaskovic Hartnell (Applicant), S Mahoney (Director & General Manager of the Respondent) File Number(s): 131063 reasons for decision Introduction 1Ms Rodwell seeks leave pursuant to s.96(1) of the Anti-Discrimination Act, 1977 (ADA) for her complaint of sex discrimination to proceed before the Tribunal. The Tribunal has determined that leave should be refused. 2Ms Rodwell joined the Terrey Hills Golf Club operated by Terrey Hills Golf & Country Club Holdings Ltd (the Club) in November 2011. Ms Rodwell is an experienced and distinguished golfer. She is a five time member of the Swiss National Team, the winner of silver and bronze medals at the European Team Championships and has been a member of golf clubs all over the world including England, France and Switzerland. 3The Club provides a mixed golfing competition in which men and women play against each other for prizes. Ms Rodwell alleges that the Club deliberately and systematically arranges the "tee off" positions such that women are forced to play a "longer game" relative to male members and that this significantly disadvantages female players. She says that by this conduct the Club discriminates against women on the grounds of their sex by arranging the course so that female players are treated less favourably than male players in the same circumstances. The Club denies discrimination in relation to the placement of tee markers. 4The initial complaint was lodged with the President of the Anti-Discrimination Board (ADB) on 11 January 2013. The Club provided a response on 1 March 2013. Ms Rodwell provided further comments on 14 March 2013 and the Club a further response on 11 April 2013. Ms Rodwell provided additional comments on 1 May 2013 including photographs and diary entries. The Club provided further information on 6 June 2013. 5On 13 June 2013, the President wrote to the parties advising that the complaint had been declined under s.92(1) of ADA because he was satisfied that the complaint was misconceived and lacking in substance. 6By letter dated 28 June 2013, Ms Rodwell requested the ADB to refer the complaint to the Administrative Decisions Tribunal (as it then was) under s.93A(1) of the ADA. The President so referred the matter pursuant to s.93A(2) of the ADA on 3 July 2013 when the President's Summary of Complaint (President's Summary) and bundle of documents (President's Bundle) were filed in the Tribunal. 7Ms Rodwell's application was listed before the Administrative Decisions Tribunal for hearing on 13 August 2013. On 1 January 2014, the Administrative Decisions Tribunal was abolished and its jurisdiction was acquired by the New South Wales Civil and Administrative Tribunal. This matter is a "part heard proceeding" within the meaning of clause 6 of Schedule 1 to the Civil and Administrative Tribunal Act, 2013 (CATA). This Tribunal may exercise all the functions which the Administrative Decisions Tribunal had immediately before its abolition. The provisions of the Administrative Decisions Tribunal Act, 1997, which would have applied to these proceedings had CATA not been enacted continue to apply: Clause 7(3) Schedule 1 to CATA. The operation of s.96 ADA 8S.96 of the ADA provides as follows: "96 Leave of Tribunal required for inquiry into certain matters 1. A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A(1), ... may not be the subject of proceedings before the Tribunal without the leave of the Tribunal." 9S.96 provides the Tribunal with an unfettered discretion to grant leave: see Jones & Anor v. Ekermawi [2009] NSWCA 388 at [57] referring to the decision of Schmidt AJ in Ekermawi v. Administrative Decisions Tribunal of New South Wales &Ors [2009] NSWSC 143 at [17]. 10In Jones, the Court of Appeal held that care should be taken by the Tribunal in construing the operation of s.96 of the ADA not to use language that might be interpreted as altering the "meaning and effect" of the statutory criterion: at [62]. This followed the approach of Gleeson CJ in Salido v. Nominal Defendant (1993) 32 NSWLR 524 concerning a different statutory leave requirement, in which His Honour held that it would be a "gloss" on the statute to require something other than a determination that it would be "fair and just" to grant leave in the particular circumstances of the case: at [531] - [532]. 11Accordingly, having regard to Salido, the Tribunal on the question of leave should be guided by what is "fair and just" in the particular circumstances. See also Mitry v. Abbas [2013] NSWADT 214 at [32], Gardener Roberts v. State of NSW (Department of Attorney General & Justice) [2013] NSWADT 167 (Gardener Roberts No. 1) at [2], Gardener Robert v. The GEO Group Australia Pty Ltd [2013] NSWADT 166 at [1] and Hillie v Henderson Properties Group [2012] NSWADT 194 at [2]. 12The matters set out in s.92(1)(a) of the ADA identify criteria which are relevant to but not determinative of the leave application: Ekermawi at [40]. These include grounds for declining a complaint because it is frivolous, vexatious, lacking in substance or does not disclose a contravention. 13The Applicant bears the onus of persuading the Tribunal that it is appropriate that leave be granted: Ekermawi at [40]. 14The Tribunal must have in mind that refusal of leave will finally determine the rights of the parties under the legislative scheme, which is dealing with important human rights: Waters v. Public Transport Corporation (1991) 173 CLR 349, referred to in Ekermawi at [32]. 15On an application for leave a relevant consideration is the potential merits of the claim: see Gardener Roberts No. 1 at [2]. However, the Applicant does not need to establish a "clear case" for leave to be granted: Jones at [36]. 16The complaint has been characterised by the President as sex discrimination in the provision of goods and services and as a registered club within the meaning of ss. 23, 24, 33, 34A and 53 of the ADA. At the hearing, Ms Rodwell informed the Tribunal that the Respondent is not, and that she did not bring a complaint of discrimination against the Respondent upon the basis that it is, a registered club. The period of the complaint is November 2011 to 11 January 2013. Relevant Legislation 17The relevant sections of the ADA provide as follows: "23 Definitions In this Part: "man" means a member of the male sex irrespective of his age. "woman" means a member of the female sex irrespective of her age. 24 What constitutes discrimination on the ground of sex A person ("the perpetrator" ) discriminates against another person ("the aggrieved person") on the ground of sex if the perpetrator: a) on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, 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 the opposite sex or who does not have such a relative or associate of that sex, or b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex. (1B) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women. (1C) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is breastfeeding or may breastfeed is a characteristic that appertains generally to women. For the purposes of this Act, "breastfeeding" includes the act of expressing breast milk. (2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs: (a) are a woman who is pregnant and a man, or (b) are not of the same marital or domestic status, or (c) are a woman who is breastfeeding and a man. 33 Provision of goods and services It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex: a) by refusing to provide the person with those goods or services, or b) in the terms on which he or she provides the person with those goods or services. (2) Where a skill is commonly exercised in a different way in relation to men and women, a person does not contravene subsection (1) by exercising the skill in relation to men only, or women only, in accordance with the person's normal practice. 53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the a ct. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services." The Applicant's Submissions 18As a preliminary matter, Ms Rodwell says that in his summary complaint the President of the ADB has mischaracterised the nature of her complaint as a complaint about the Club placing the men's tees in front of the women's tees such that men play a shorter course than the women. 19Ms Rodwell says that her complaint was in fact that the Club deliberately and systematically arranged the tee off position such that men played a shorter course "relative" to the women in circumstances where the relative length of the course as between men and women was determined by Golf Australia and Golf New South Wales to ensure fairness between the genders. This is confirmed in the last paragraph on page 1 of the letter of complaint dated 10 January 2013 in which it is stated: "The Club, however, deliberately and systematically arranges the 'tee off' positions such that women are forced to play a 'longer game' relative to the men, significantly disadvantaging female players." 20Ms Rodwell refers to the President's Summary of complaint as evidence that he had mischaracterised the nature of the complaint as follows: "The 'tee off' positions are placed in a way such that men have a shorter game to play than the women. "... the way in which the markers are moved means that the men's tees are placed further forward than the women's tees, resulting in an advantage to male players." "... this means that male players have a shorter course of play and advantage in competition." 21Having reviewed the President's Report the Tribunal can find no reference to the placing of men's tees literally in front of the women's tees. The details of allegations referred to in the President's Report can be read in the relative sense rather than the literal sense. Indeed, the President notes that: "... the Club routinely positions the men's markers between 8 and 39 metres in front of the blue permanent plate, whereas it routinely positions the women's markers 3 to 8 metres in front and often behind the [gold] permanent plate." The President goes on to say: "As the competition is mixed, this means that the male players have a shorter course of play and an advantage in competition." 22It is plain from the material before the President that the blue permanent plates from which men play are located behind the gold permanent plates utilised by women. The summary does not conclude that the men's tees are in front of women's tees in every instance or that men play a shorter course than the women in absolute terms. The position was plain from the Applicant's letter of complaint in which she stated: "The cumulative effect of this system is to substantially shorten each hole, and the overall rated course, for the men relative to the women, thereby giving male players a distinct advantage in a competition as won by the player who takes the fewest number of strokes to complete all 18 holes." [Emphasis added]. She went on to say: "The extent of the discrimination can be established by way of example. On 14 December 2012, the men's Marker on the fifth hole was 39 metres in front of the blue permanent plate. The women's marker on the same hole was 6 metres in front of the [gold] permanent plate. This gave the men a relative advantage over the women of 33 metres on a single hole. Similar tee positioning occurred on the other holes on that day and the cumulative effect was that the length of the men's course was substantially reduced relative to the length of the women's course". [Emphasis added]. 23The Tribunal is not satisfied that the Applicant's complaint was misconstrued by the President or that it was not dealt with by the ADB in its terms. 24Ms Rodwell further says that she was not provided with an adequate opportunity to respond to certain information provided to the ADB by the Club. This information included the contents of the Golf Australia document dated 16 February 2012 entitled "Men & Women Playing in the Same Competitions, and Same-Gender Competitions Using Different Tees" (the GA Same-Gender Different Tees document) provided to the ADB by the Club under cover of an email on 6 June 2013. The ADB made specific reference to the content of the document in its decision as follows: "[The] policy and practice of the Respondent in setting up its course appears to be within the guidelines provided by Golf Australia in the advice dated 16 February 2012, entitled 'Men & Women Playing in the Same Competitions and Same-Gender Competitions Using Different Tees'". 25Ms Rodwell says that by neither informing her of nor providing her with an opportunity to respond to this material, that the ADB has failed to afford her procedural fairness in the consideration of her complaint. 26Ms Rodwell submits that if she had been given an opportunity to respond she would have noted that the evidence provided to the ADB by her on 29 April 2013 demonstrates that the Club was in breach of the GA Same-Gender Different Tees document (and the course rating system) by allowing a variance of more than 100 metres to the overall length of the men's blue tee rated course. 27In addition, Ms Rodwell would have submitted that the document must be read in the context of other Golf Australia Advisory publications including the Golf Australia guidance material on the positioning of tees called "Golf Australia Guidance & Regulations Regarding the Position of Permanent Plates and Daily Tee Markers" (the GA Guidance and Regulations document). She says the document provides, inter alia, that: "Where unusual weather or course conditions are in evidence, a club may wish to set the daily tee markers such that overall course distance is altered provided the overall change is not more than 100 metres." [Emphasis added] Additionally: "Scores must not be handicapped when the position of the daily tee markers on the course played are more than 100 metres overall from the permanent rating markers for that course for an 18-hole round." [Emphasis added] "Unless determined otherwise by the State Association, handicap conditions do not prevail when the tee markers, under normal circumstances, are placed more than 20 metres in front or 20 metres behind the relevant set of permanent rating markers on more than 3 holes for rounds of 14 to 18 holes, or more than 2 holes for rounds of 18 to 13 holes." "Does this mean that if we move our daily tee markers too far away from the permanent plates, a course rating becomes too different from the course we are actually playing? That's right. You are effectively playing a different course to that which has been rated." 28Ms Rodwell says that these provisions support her contention that the placement of the daily tee markers by the Club was unfair and discriminatory. 29She says that she would also have specifically noted for the ADB precisely how the photographic evidence which she had provided clearly indicated that the Club was in breach of the GA Same Gender Different Tees document. 30Ms Rodwell further submitted that the ADB had accepted, without question and at face value, statistics concerning prize money provided by the Club which showed ostensibly that both men and women are equal recipients of prize money in terms of gross prize money. 31Ms Rodwell says that her submission to the effect that a significant proportion of prize money won by women players was not for winning a tournament but for "also playing well" was not addressed by the Club in its response. Notwithstanding this she says the ADB accepted the Club's statistics as demonstrating substantive equity between the genders in terms of prize money. In particular, Ms Rodwell noted that should her application for leave be successful she will seek the leave of the Tribunal to lead evidence from a relevant expert as to the conduct of competitions at the Club, the statistics provided by the Club and the statistical significance of published results of competitions at the Club. 32Lastly, Ms Rodwell submits that the President of the ADB failed to properly consider her evidence documenting every tee on all 18 holes on various days during summer 2012 to 2013. 33An application under s.96(1) of the ADA is not by way of a review of the President's decision. The question for the Tribunal on such application is whether it is fair and just in all the circumstances for leave to be granted for the complaint to be the subject of proceeding before the Tribunal. The Tribunal has taken Ms Rodwell's submissions including as to her likely response to the material provided by the Club, the Golf Australia publications, the allocation of prize money and the positions of the tees into account in considering her application. The discrimination claim 34To prove the complaint of sex discrimination, Ms Rodwell will first have to identify the service which the Club provided to her within the meaning of s.33 of the ADA. Having done so, she will need to establish that the Respondent has discriminated against her either directly or indirectly within the meaning of s.24 of the ADA. Does the Club provide a service? 35In Commissioner of Police v Mohamed [2009] NSWCA 432, the Court said from [23]-: "23. The underlying structure of the Anti-Discrimination Act is not to prohibit all forms of discriminatory conduct, even where such conduct is antithetical to internationally recognised human rights and fundamental freedoms, but to identify specific grounds of discrimination, which are prohibited in specific areas of social activity: IW v City of Perth [1997] HCA 30; 191 CLR 1, at 14-15 (Brennan CJ and McHugh J). Generally speaking, the areas in which the prohibitions operate seek to exclude entirely private activities, not having a broader public element to them... In order to understand the operation of the provision, it is necessary to have regard to the definition of 'services', which is to be found in s 4(1) of the Anti-Discrimination Act, in the following terms: 'services includes: a) services relating to banking, insurance and the provision of grants, loans, credit or finance, b) services relating to entertainment, recreation or refreshment, c) services relating to transport or travel, d) services of any profession or trade, e) services provided by a council or public authority, f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.' 30 The definition is inclusive (and not exclusive) and operates by way of description rather than precise identification of the content of the term 'services'. ... 38 In discussing the scope of the definition of 'services' in the Equal Opportunity Act 1984 (WA), which was in similar terms to the definition in the Anti-Discrimination Act, Brennan CJ and McHugh J stated at 11: 'The term 'services' has a wide meaning. The Macquarie Dictionary relevantly defines it to include 'an act of helpful activity'; 'the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance'; 'the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public'; 'the supplying or the supplier of water, gas, or the like to the public'; and 'the duty or work of public servants'.' 39 Their Honours concluded that the definition was not capable of including a refusal to exercise a power under planning legislation (at 11) but accepted (at 13) English authority holding that there had been a provision of services 'in carrying out a statutory duty to determine whether a taxpayer was entitled to a deduction for a dependent child and in disseminating and giving advice to taxpayers to enable them to claim that tax relief': Savjani v Inland Revenue Commissioners [1981] QB 458. Their Honours also cited (at 14) with approval the decision in Farah v Commissioner of Police of the Metropolis [1998] QB 65 in which the English Court of Appeal held that 'those duties of a police officer that involve assistance to or protection of the public constitute 'services to the public' for the purposes of the Race Relations Act 1976 (UK)'. 40 In IW, Dawson and Gaudron JJ also accepted that the term 'services' was a word of 'complete generality' and 'should not be given a narrow construction unless that is clearly required by definition or by context': at 23. Their Honours noted that the definition, which was in similar terms to that in the Anti-Discrimination Act, 'is to be taken as signifying everything which falls within [the ordinary notion of 'services']'. Their Honours also referred with approval to Farah, as did Toohey J at 29, Gummow J at 44 and Kirby J at 74". 36The Tribunal has routinely held that a wide range of conduct might constitute services within the meaning of the Act: see Sleiman v. Kmart Australia Pty Limited [2003] NSWADT 21; Tallong Park Association Inc v. Sutherland; Sutherland v. Tallong Park Association Inc (EOD) 2007 NSWADTAP 19. In Walker v. Wakehurst Golf Club Ltd [2013] NSWADT 295 Hennessy DP appeared to accept in respect of a complaint about a registered club that the club provided "services ... such as the scheduling, hosting or running of golf games" at [23]. 37For the purposes of this application the Tribunal finds that there is material capable of establishing that the Club provides a service to its members by administering the maintenance of the golf course and the competitions played by members using it. Whether Ms Rodwell's claim is for direct or indirect discrimination 38Neither the President's Report nor the Applicant's submissions identify whether the complaint is one of direct or indirect discrimination. 39By her letter of complaint dated 10 January 2013, Ms Rodwell states: "The Club, however, deliberately and systematically arranges the 'tee off' positions such that women are forced to play 'a longer game' relative to the men, significantly disadvantaging female players. In other words, the club is in breach of the Act insofar as it discriminates against women on the grounds of their sex by arranging the course so that female players are treated less favourably than male players in the same circumstances." 40The compliant appears to reflect the formulation for direct discrimination contained in s.24(1)(a) of the ADA. The direct discrimination claim 41In order to establish a claim for direct discrimination, Ms Rodwell will need to establish that the Respondent has treated her less favourably than it would have treated a person of the opposite sex in the same circumstances or in circumstances which were not materially different. Having done so, she will need to establish that at least one of the reasons for her less favourable treatment was her sex. 42Ms Rodwell's claim is in effect that the Applicant: "deliberately and systematically arranged the tee off positions such that the men played a shorter course relative to the women." 43To establish differential treatment, Ms Rodwell will need to identify a real or hypothetical comparator. No submission was made as to the identity of a real comparator. For the purposes of this application, in the Tribunal's view, the hypothetical comparator would be a male member of the Club playing off a blue tee marker in a mixed competition on the days complained of. 44Where the comparator is hypothetical, the differential treatment and causation requirements are to be answered as part of the same reasoning exercise: Dutt v. Central Coast Area Health Service [2002] NSWADT 133 at [65]. 45For the purposes of the application, the Tribunal accepted a bundle of documents comprising what Ms Rodwell said her evidence would be on the issue of differential treatment if the matter proceeded to final hearing. This material comprised photographs taken on the course on 8 December 2012, 14 December 2012, 22 December 2012, 27 December 2012, 25 January 2013, 7 February 2013 and 17 February 2013. It also included scorecards and handwritten notes for some of these and for other days. 46The material included proposed evidence of course conditions after 11 January 2013 which is outside the period of the complaint. This material also goes to occasions when Ms Rodwell says that blue tee markers were placed in such a way, relative to gold tee markers, that the men's course was reduced by more than the women's course on a particular day, including by more than 100 metres meaning that the course rating would change. 47The Tribunal does not have jurisdiction in relation to conduct which takes place outside the complaint period unless the President or the Tribunal amends the complaint to include that further conduct: see Commissioner of Police, NSW Police Force v. Butcher [2011] NSWADTAP 9. The President did not amend the complaint. 48In its terms a complaint referred to the Tribunal at the request of a complainant under s.93A of the ADA: "may not be the subject of proceedings before the Tribunal without the leave of the Tribunal." 49S.103 of the ADA which gives the Tribunal power to amend complaints, provides: (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage of the proceedings relating to the complaint, amend the complaint." 50Before leave has been granted under s.96(1) there are no proceedings before the Tribunal. Accordingly, the Tribunal has no power under s.103 to amend the complaint either on the application of a party or on its own motion. 51The Tribunal can in certain circumstances rely on evidence of events or circumstances occurring outside the complaint period. As the Appeal Panel held in Butcher at [10]: "Such evidence may be logically probative of an issue in dispute ... whether evidence is logically probative will depend on its reliability and its relevance to an issue in dispute. As Diplock LJ said in RV Deputy Industrial Injuries Commissioner; ex- parte Moore [1965] 1 QB 456 at [488], a Tribunal: ... may take into account any material which as a matter of reason, has some probative value ... If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom the Parliament has entrusted the responsibility of deciding the issue." 52In the Tribunal's view, the evidence in the nature of that proposed to be relied upon by Ms Rodwell for the period outside the complaint has no value for proving differential treatment on the days complained of within the period of the complaint. 53Nor would it be appropriate to consider such material not all of which was before the President without the Club being given notice of the material and an opportunity to respond. Accordingly, for the purposes of this application, the Tribunal will restrict itself on the issue of the differential treatment to that material on which Ms Rodwell would rely within the period of the complaint. 54In the entry for 24 November 2012 on a score sheet the figures "135.5" and "43" are referred to and the words "92.5 difference". The Tribunal takes from this that on that day the men's markers were placed cumulatively 135.5 metres in front of the blue plates, the women's tees were placed cumulatively 43 metres in front of the gold plates there being a 92.5 metre difference. 55Ms Rodwell has calculated that on 27 December 2012, that the men's markers were a cumulative total of 143.5 metres in front of the blue plates around the course and the women's markers were cumulatively 44 metres in front of the gold plates making a difference of 99.5 metres between the men's and women's courses for the entire 18 hole course. 56The material on the other days is not summarised or conclusive as to the cumulative effect of any differences at least in a way which is comprehensible. 57For 11 November 2012, a score sheet is included which has the figures "34.3" and "30.7" although no indication is given as to what this means. 58The material for 8 December 2012 makes reference to 8 holes with no cumulative figures. 59The material for 14 December 2012 makes reference to 5 holes with no apparent reference to the cumulative effect. The measurements are in "paces" rather than metres. 60The material for 22 December 2012 makes reference to 1 hole. 61In its submissions, the Club questioned whether the measurements were taken in the mid or later afternoon after competition play had concluded. There was no evidence before the Tribunal either way. 62The Club provided a detailed response to the allegations in the following terms: "The course has four primary tees on each hole, black, blue, white and gold. Each one of these tees has a 'plate' which represents the point from where the length of the given hole is measured. Course ratings are determined from the 'plates'. Overall length of the course from the black plates is 6499 metres, blue plates are 6151 metres, white plates is 5789 metres and gold plates is 5299 metres. The most frequently used tees on competition days are the blue and gold; blue tees are primarily for male members, with some participation by female members, and gold tees, solely by female members. The directive to the course superintendent is for the tee marker to be set to achieve a consistent comparative overall length of the course, whichever tees are in lay on the competition day. On a hole by hole basis, the tee markers are moved either forward or back from the plate on a daily basis, primarily to maintain the quality of the tee area and to restrict wear and tear. Blue tee decks have significantly higher usage than the gold tee decks. Our objective is to move the tee markers on a hole by hole basis uniformly. This is not possible on all holes due to the gold tee decks being smaller than the blue tee decks and occasionally due to maintenance work being conducted on tee areas. In such instances any variance is adjusted on subsequent holes with a view to ensuring that the overall length of the course is comparative." 63A statement from the Golf Course Superintendent to that effect was provided to the President. 64The Club continued: "Whilst we do not maintain historical records of daily tee positions, our golf course superintendent has advised that on 14 December, the blue marker on the fifth hole would have been significantly in front of the blue plate due to repair work having been undertaken on that tee. However, in accordance with our normal practice, the variance would have been adjusted on subsequent holes." 65The allegation that the Club deliberately and systematically sets the tee positions to force female members to play a longer game relative to the men is denied. The Club's directive to the course superintendent is, it submits, quite clear with respect to tee positioning. 66In further correspondence with the President of the ADB, the Club denies that the tees had not been set up in accordance with their policy and assert that the course has in the past and is currently being set up in accordance with their policy. The policy has been reinforced with course staff to ensure that it is being adhered to. 67In the Tribunal's view, the material referred to by Ms Rodwell within the period of the complaint, if admitted into evidence and accepted on final hearing, is capable of establishing that on two days within the period of complaint there was a cumulative difference in the distance by which the respective men's and women's markers were placed in front of the blue and gold plates around the course being 92.5 meters on 24 November 2012 and 99.5 metres on 27 December 2012. Similarly, the material is capable of establishing that on 24 November 2012 the men's course was reduced by 135.5 metres and on 27 December 2012 the men's course was reduced by 143.5 metres by reference to the permanent blue plate. 68The first issue which Ms Rodwell will need to establish is that the placing of the markers constitutes differential treatment, namely that by the placing of the markers she was treated less favourably than the hypothetical comparator in the same circumstances. 69Males and females play in a mixed competition at the Club although each player plays to their respective handicap and the course of the men playing off the blue tees is longer than that of the women playing off the gold tees in absolute terms. 70In a statement from the Golf Course Superintendent in the President's Bundle it is noted: "Our policy with regards to the setting the movable tee markers is to achieve a consistent comparative overall length of each course, regardless of which tees are in play on any given competition day. The main objective is to move the tee markers on a hole by hole basis uniformly. Specifically: if the tee markers for the blue tees are placed 2 metres in front of the blue tee plate, the gold tee markers should also be placed 2 metres in front of the gold tee plate. Where this is not possible due to wear on the blue tee decks or in the situation where maintenance is being conducted on any of the tee decks the difference is made up over the remaining holes with a goal of achieving consistency in the overall course length from the respective tees. i.e. if the blue course is set up 50 metres shorter than the blue plates, the gold course should also be set 50 metres shorter than the gold plates." 71On the material provided by Ms Rodwell it appears that in two instances at least the blue course and gold course have not been shortened to the same degree. The course difference for males and females on 24 November 2012 was 92.5 metres and on 27 December was 99.5 metres. The unequal placing of tee markers resulting in males playing a reduced course relative to the women would on its face disadvantage women in a mixed competition. 72Ms Rodwell has also referred to the GA Same-Gender Different Tees document and the GA Guidance and Regulations document submitting that where the total course distance is reduced by more than 100 metres the course rating changes. If accepted, this would mean that at least on 24 November 2012 and 27 December 2012 the men were notionally playing on an easier course. This would have been of disadvantage to women playing in a mixed competition. 73Taking the evidence which is likely to be submitted by Ms Rodwell at its highest, there is material before the Tribunal which is capable of establishing that she was treated less favourably in the circumstances of the mixed competition than men playing on the same day in the instances referred to. 74There was a contest in the materials in the President's Bundle and during submissions as to whether statistics concerning the allocation of prize money by the Club as between men and women were reflective of differential treatment. This is not a matter which can be determined without evidence in an application such as this and it is unnecessary to do so in circumstances in which the Tribunal has found that there is other material capable of establishing differential treatment. 75Having established differential treatment, Ms Rodwell will then need to establish that at least one of the "real", "genuine", or "true" reasons for that treatment was by reason of her sex: Nicholls and Nicholls v. Director General, Department of Education & Training (No.2) [2009] NSWADTAP 20 at [28]. 76Causation might be established by Ms Rodwell either by direct evidence or evidence from which it can be inferred: AEQ v. Department of Education & Communities [2011] NSWADT 194 at [30]. 77On the material before the Tribunal, there is no direct evidence that the markers were placed where they were on the occasions referred to because of her sex. 78As to evidence going to an inference, whilst the Tribunal is not bound strictly by the rules of evidence it must have at least probative evidence: State of NSW (NSW Police Force) v. Whitfield (EOD) [2012] NSWADTAP 27 at [79]. The ordinary principles relating to the drawing of inferences should apply. When relying on an inference an applicant must identify the evidence on which the inference can reasonably be based: Rota at [70]. 79The Tribunal in Chi v. Technical and Further Education Commission (No 3) [2009] NSWADT 271 at [85] considered the relevant matters to which regard should be had in drawing an inference of causation. Referring to Dutt at [70] the Tribunal identified the following considerations: (a) A causal link, such as that which is necessary to prove direct discrimination, can be established by inference from primary facts; (b) An inference must be reasonably drawn on the basis of the primary facts; (c) An inference can be drawn from accommodation of facts, none of which viewed alone would support that inference; (d) The facts relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of 'probable connection'; (e) The inference must be a logical one, and not supposition; (f) An inference cannot be made where more probable explanations are available on the evidence." 80The appropriate bases for the drawing of inferences were further considered in Whitfield at [80] citing Howe at [94]. These were summarised as follows: "(a) individual pieces of evidence ought not be considered in isolation, but the cumulative effect of the circumstances is to be considered, provided each is established as fact: Sharma v. Legal Aid (Qld) [2002] FCAFC 196: (2002) 115 IR 92 per: Heerey, Mansfield and Hely JJ at [40]; (b) an inference may only reasonably be drawn upon the basis of facts which have been established by the applicant in evidence such that 'it is more probable that it exists than that it does not': Gama v. Qantas Airways Ltd (No 2) [2006] FMCA 1767 at [7-9], citing Jordan CJ in Carr v. Baker (1936) 36 SR (NSW) 301 at [306-307], where His Honour observed as follows: 'There must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture. ... the existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability - a mere scintilla of probability such as would not warrant a finding in a civil action ... to such practical certainty as would justify a conviction in a criminal prosecution.' ( c) the decision in Carr v. Baker was followed by the frequently cited decision of the High Court in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 where Kitto J said at 305: 'One does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.' (d) for an inference to be drawn it must follow from given premises as certainly or probably true: Nominal Defendants v. Owens (1978-79) 22 ALR 128 at 130 citing Street CJ in Gurnett v. Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 at [264]; (e) no inference can be drawn from conflicting conjectures of equal degrees of probability where reasons for equal sufficiency or insufficiency exist for other explanations: Luxton v. Vines [1952] HCA 19; (1952) 85 CLR 352; Greater Taree City Council v. Craig Michael Peck [2002] NSWCA 331; Squillacioti v. Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133; and (f) an adverse inference ought only be drawn where there is sufficient evidence to reject alternative innocent explanations: State of Victoria v McKenna [1999] VSC 310; (1999) 140 IR 256 at [42]-[43]." 81Additionally, Street CJ in Gurnett v. Macquarie Stevedoring Co Pty Ltd (1955) 72WN (NSW) 261 at [264] found that an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts. It must be something which follows from giving premises as certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect: see Whitfield at [82]. 82The evidence at its highest is capable of establishing that on two days the course played by men in the mixed competition was notionally easier having been reduced by more than 100 metres resulting in a changed course rating and that on two days the distance in the men's course was reduced by an amount greater than the distance by which the women's course was reduced. 83Taking into account the material before it and the relevant considerations identified in the authorities above, the Tribunal cannot be satisfied that Ms Rodwell would at final hearing be able to make out any primary facts from which the necessary inference of causation, namely that one of the real, genuine or true reasons for the placing of the tees on the days complained of was by reason of her sex, can be drawn. Nor would the further material sought to be introduced by Ms Rodwell outside the period of the complaint support the inference of causation. 84In light of the material from the Club such an inference is not more probable than not. The inference to be drawn does not follow from the placing of the tees as certainly or probably true. It not a reasonable conclusion drawn as a matter of strict logical deduction from the known facts. 85There is a more probable and innocent explanation available on the evidence for the placing of the tees, namely course maintenance and to restrict wear and tear in circumstances where the blue tees have a substantially higher use than gold tees. The Club has also submitted that it has in place procedures to ensure the conduct of competition is fair and meets relevant Golf Australia guidelines. 86The Tribunal has reviewed the materials and taken into account the submissions from Ms Rodwell as to the evidence which she would wish to adduce including the response which she makes to the content of the GA Same-Gender Different Tees document provided to the ADB by the Club and the reference which she makes to the GA Guidance and Regulations document. In the Tribunal's view whilst the material is capable of making out differential treatment in the respects identified, Ms Rodwell is most unlikely either directly or by inference to be able to establish causation to the requisite standard. In those circumstances the claim lacks substance and the Tribunal is not persuaded that it is fair and just in the particular circumstances of the matter that leave to proceed should be granted. Orders 87Leave for the Applicant's complaint of sex discrimination to proceed is refused. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 24 March 2014