Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brala v Fieldworks Pty limited [2017] NSWCATAD 331 Hearing dates: 25 October 2017 Date of orders: 16 November 2017 Decision date: 16 November 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: A Scahill, Senior Memeber Decision: Leave to proceed refused Catchwords: Disability, goods and services Legislation Cited: Anti -Discrimination Act 1977 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCCA 388 Category: Procedural and other rulings Parties: Anthony Brala (Applicant) Fieldworks Pty Limited (Respondent) Representation: Both parties self-represented File Number(s): 2017/00305821 reasons for decision 1. This was an application by Mr Anthony Brala for leave for a complaint of disability discrimination in the provision of goods and services to go ahead. 2. Mr Brala brought the complaint because he was banned from attending at Fairfield Golf Course. 3. The complaint was declined by the President of the Anti-Discrimination Board and in those circumstances leave is required under s 96 of the Anti-Discrimination Act 1977 (the Act). 4. The Supreme Court in the case of Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143, has set out principles on which leave should be granted. In that case, Acting Justice Schmidt said: "Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which include precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates." 1. When deciding whether to grant leave the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the Act including that the complaint lacks substance or that the nature of the conduct is such that further action is not required: Jones v Ekermawi [2009] NSWCCA 388 at [60]. 2. The Applicant, Mr Brala, bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. While it is not the Tribunal's role when determining a leave application to decide whether the complaint has been substantiated, the merits of the complaint are relevant. 3. The factual basis of this complaint is set out in a letter to the Anti-Discrimination Board from the Applicant dated 23 November 2016. The complaint relates to a decision by Mr Porter for Fairfield Golf Course to ban Mr Brala from Fairfield Golf Course. Mr Porter is the manager of Fieldworks Pty Limited, the company that leases the Fairfield Golf Course from Fairfield City Council. Mr Brala was advised of the banning by letter dated 23 December 2015, signed by Mr Porter. 4. Mr Porter wrote to the Anti-Discrimination Board on or around 27 June 2017 to respond to Mr Brala's complaint to the ADB. The letter stated that the reason for the decision was due to Mr Brala's behaviour to Mr Porter, his staff, their customers and the damage to the furniture. The letter refers to security footage and phone recordings showing Mr Brala's behaviour as demonstrating why he had to be banned. The letter refers to incidents at the course involving Mr Brala on 31 October 2015, 5 December 2015 and 23 December 2015. The letter states that Mr Brala had never mentioned having a disability. President of ADB declined the complaint 1. The President Anti-Discrimination Board declined the complaint on the basis it was lacking in substance. The reasons for the decision are set out in a letter of 17 September 2017 at p 56 of the President's Report. "The reasons for my decision are: 1) The complainant has not sufficiently demonstrated that his disability was a causal factor in the Respondent's decision to ban him from Fairfield Golf course. 2) The complainant has not established that he was treated less favourably than another person without his disability in the same or similar circumstances, or in circumstances that are not materially different. 3) It is apparent from the information provided by both parties that the sole reason for the Respondent's decision to ban the complainant from Fairfield Golf course was his behaviour. Principles for granting leave 1. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] - [38]. In that case Schmidt J: 2. (1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; 3. (2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the Acting President of the Anti-Discrimination Board may decline a complaint; 4. (3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and 5. (4) noted that where it is apparent that the complaint lacks substance, leave may be refused, if that is what justice dictates. 6. Accordingly, the Applicant must satisfy the Tribunal that it is fair and just for the Tribunal to grant leave for the complaint to proceed, despite the decision of the Acting President that it lacked substance. Relevant Legislation What constitutes discrimination on the ground of disability? 1. The Tribunal sets out relevant sections of the Anti-Discrimination Act. 2. Section 4 defines disability "disability" means: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 49B What constitutes discrimination on the ground of disability (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability 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 who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, 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. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. … (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. 49M Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (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) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. Mr Brala's evidence at the hearing. 1. At the hearing Mr Brala told the Tribunal that throughout his 10 years as a member at the club he was bullied and harassed by committee members. He said that Mr Porter had been in a close relationship with those committee members. Mr Brala said he had reacted to that bullying and harassment and he was now barred from Fairfield City Golf Course. 2. Mr Brala pointed to 5 medical reports concerning his disability. He referred to a report from Dr Samir Benjamin which diagnosed him as having autism. This report was not before the Tribunal. Mr Brala had provided the front page of other medical reports to the ADB and these were in the President's report. Mr Brala said that he had been discriminated against on the grounds of his disability. He said that he had not told anyone at the club that he had a disability as he did not wish other people to know his business. He said that it was disability discrimination as he has a condition and those at Fairfield City Golf Course do not have a condition. It is unfair that they should be allowed to use the premises and he is not. 3. Mr Brala referred to the reasons that the ADB President provided for declining his complaint. 4. He asserted that he does have a disability and referred to the document from Dr Samir Benjamin. Mr Brala said that on this basis they cannot say that he has not sufficiently demonstrated that he has a disability. 5. In relation to the second reason provided by the ADB, he said he found the ADB's investigation to be an insult. He considered that if the truth had been provided to the ADB, they would have found differently. 6. In relation to the ADB's third reason, he said that there were some things about his behaviour that weren't right - but they were caused by the bullying and harassment of the other members of the club. He disagreed with Mr Porter that he had engaged in antisocial behaviour. He said it was the club members that had behaved in a reckless way - not himself. He has the disability - they do not. 7. Mr Brala said that the videoed evidence provided by Mr Porter to the ADB demonstrates that he was being discriminated against and he was defending himself. He said if people understood what Asperger's was - this would not have happened. They had intervened in his right to play golf. He thought that there was collusion going on. All of the persons involved were committee members and Mr Porter sits in on those meetings. He thought it was obvious that he had been treated less favourably. He said that he did not have third-party evidence. 8. Mr Brala said had not told anyone that he had a disability. Mr Brala said that after he had been banned, during the subsequent process, Brian Bevan from the club said to him: " Haven't you taken your medication?" 1. He thought that Mr Bevan had played up on that. 2. Mr Brala stated that he might come across as a little bit verbal or hectic. He asked where the evidence was that he had damaged the furniture. Mr Brala said: "Sure, I kicked it - but there is no evidence of damage." 1. Mr Brala said that it was true that he had been in a verbal exchange with Mr Porter. He had allowed the three Samoan members to surround him. They had assaulted him - one of the Samoan men had punched him in the mouth. He thought the whole process had been biased. Mr Brala asked whether the members suffered any injury. He said that people at the club had said to him: "Fuck off you're not welcome here, go back to Cabramatta golf club." 1. Mr Brala said that antisocial behaviour is part of Asperger's Syndrome - which he has. He said he did not have to disclose his condition. There were extenuating circumstances before the events of 2 November. He is now a 'second-class citizen. He apologises for some of his behaviour. Evidence of Mr Porter. 1. Mr Porter said that they relied upon the content of the videos. A lot of what Mr Brala had told the Tribunal fell outside the range of dates of the complaint that the President had investigated being from 2 November 2015 to 23 December 2016. Mr Porter denied that Mr Brala had been bullied by members of the club. On 2 November 2015 they had sent Mr Brala a letter saying that they proposed to terminate his membership. This would have been a good time for Mr Brala to tell the club that he had a disability. The first time they had seen any medical "proof" that Mr Brala had a disability was the incomplete medical reports provided to the President of the ADB. 2. The Club denied that it discriminated against people with disabilities. They hold the Special Olympics there. They have other people with problems who play on the course with and without assistance. In short, he said that they had terminated Mr Brala's membership because of his behaviour towards others. He did not know how they could be accused of discriminating against Mr Brala because of a disease, when they did not know he had one. Tribunal's consideration of whether to grant leave What has to be proved at hearing? 1. To prove the complaint that the Respondent had breached sections 49B and 49M of the Act at a hearing, Mr Brala would need to demonstrate that he had been banned from the golf course on the grounds of his disability. 2. The definition of disability discrimination in s49B has two elements, differential treatment and causation. 3. "Differential treatment" requires that the perpetrator must have treated the person with the disability less favourably than in the same or similar circumstances he or she would have treated a person without that disability. The causation element requires that at least one of the reasons for that treatment must be the person's disability. 4. In order to make out the complaint at a hearing, Mr Brala would have to prove: 5. (1) that he was refused a service; 6. (2) that he was treated less favourably than someone without his disability would have been treated in the same or similar circumstances; and 7. (3) that one of the reasons for that treatment was his disability. 8. Firstly, no dispute was raised that the Respondent was providing a service to the applicant or that a service was refused in the sense that the applicant was not permitted to attend the course to enjoy the services that were being offered. 9. The second element is that Mr Porter treated Mr Brala less favourably than he would have treated a person without Mr Brala's disability. 10. Mr Brala told the Tribunal that his disability was that he had Asperger's Syndrome and that anti-social behaviour is a characteristic of the syndrome. None of the medical reports in the President's report confirmed this diagnosis, or that antisocial behaviour is a characteristic of Asperger's Syndrome. 11. However, for the purposes of assessing whether it is fair and just for Mr Brala to be given leave to proceed with his complaint, the Tribunal assumed hypothetically that Mr Brala would at a hearing be able to show he had a disability of Asperger's Syndrome and that anti-social behaviour is a characteristic of the syndrome. 12. In his evidence at the leave hearing, Mr Brala told the Tribunal that he had not told people at the club that he had a disability because he wasn't required to. Further the Respondent had told the Tribunal that it had been unaware that Mr Brala had a disability. For a Tribunal hearing this matter to make a finding of disability discrimination it would need to be satisfied that Mr Brala's disability was at least one of the reasons for the Respondent's actions. The decided cases in the area require that the Respondent must have known of the disability. 13. The Tribunal accepts Mr Brala's evidence on this issue. Mr Brala had not told Mr Porter of his disability prior to bringing this complaint. Obviously in circumstances where Mr Porter did not know of that disability it would be difficult for the applicant to make out this element of the case. 14. In these circumstances this Tribunal considers that a tribunal hearing the complaint could not find that the Respondent had determined to ban Mr Brala from the Club on the ground of his disability, when the Respondent was not aware of the disability. 15. Even if the Respondent had known of Mr Brala's disability, looking at the facts as asserted, it would be unlikely that the Tribunal would draw an inference that disability was one of the reasons for the conduct. Rather, it is likely that a Tribunal would find that the reason Mr Porter banned Mr Brala from attending the Golf course was the incidents of anti-social behaviour referred to. 16. In all the circumstances leave is refused because it is highly unlikely if this complaint were to proceed to a hearing that the complaint would be substantiated. 17. The Tribunal is not satisfied that it is "fair and just" to grant leave for the complaint to proceed. Order 1. Leave to proceed refused. ******** 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: 16 November 2017