Administrative Decisions Tribunal New South Wales

• Medium Neutral Citation: Sleeman v Tulloch Pty Ltd (t/a Palms on Oxford) [2013] NSWADT 235
• Hearing dates: 25 February 2013, 19 March 2013
• Decision date: 24 October 2013
• Jurisdiction: Equal Opportunity Division
• Before: J Wakefield, Judicial Member; A Lowe, Non-Judicial Member; J McClelland, Non-Judicial Member

Decision

Complaint of age discrimination dismissed

• Catchwords: Age discrimination - drawing of inferences -costs
• Legislation Cited: Administrative Decisions Tribunal Act 1997; Anti-Discrimination Act 1977; Liquor Act 2007
• Cases Cited: ACE v State of NSW (TAFE Commission and DET) (No 3) [2011] NSWADT 154; Adamou v Director-General of Social Security (1985) 3 AAR 321; AEQ v. Department of Education & Communities [2011] NSWADT 194; AT v Commissioner of Police (NSW) [2010] NSWCA 131; Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481; Australian Iron & Steel Pty Ltd v. Banovic (1989) 168 CLR 165; Bevnol Constructions & Developments Pty Ltd v De Simone (Domestic Building) [2009] VCAT 546; Butcher v. Commissioner of Police, New South Wales [2010] NSWADT 169; Chi v. Technical & Further Education Commissioner (No 3) [2009] NSWADT 271; Chi v. Technical & Further Education Division (EOD) [2010] NSWADTAP 67; Clinch v. Commissioner of Police (1984) EOC 92-115 (NSW); Commissioner of Protective Services v Aldridge [2000] NSWADTAP 5; Commissioner of Police, NSW Police Force v. Butcher [2011] NSWADTAP 9; Commonwealth v Human Rights and Equal Opportunity Commission (Dopking No 1) (1993) 46 FCR 191; Dennis Corporation Pty Ltd v. Casey CC (Red.) [2008] VCAT 691; Department of Attorney General and Justice v Schoeman [2012] NSWADTAP 31; Duncan v. Chief Executive, NSW Office of Environment and Heritage (No 2) [2013] NSWADT 78; Dutt v. Central Area Health Service [2002] NSWADT 133; Finch v Samios [2012] NSWADT 16; FZ v. Commission for Children and Young People [2012] NSWADT 93; Gurnett v. Macquarie Stevedoring Co Pty Ltd [1955] 72 WN (NSW) 261; Haddad v Chief Commissioner of State Revenue (No 2) [2011] NSWADT 215; Heber v. Glen Henney & Son Pty Ltd (No 2) [2007] NSWADT 230; Howe v NSW Famers Association [2010] NSWADT 101; IW v. City of Perth [1997] HCA 30; 191 CLR 1; JM & JN v. QL & QM [2010] NSWADT 66; Lavery v. Commissioner of Fire Brigades [2003] NSWADT 93; Linnell v Seachem Australia Pty Ltd (No 2) [2011] NSWADT 178; McGuirk v University of New South Wales (GD) [2008] NSWADTAP 17; Nicholls & Nicholls v. Director General, Department of Education & Training (No 2) [2009] NSWADTAP 20; PC v. University of New South Wales (GD) (No 2) [2006] NSWADTAP 54; Purvis v. New South Wales [2003] HCA 62: (2003) 217 CLR 92; Rae v Commissioner of Police, New South Wales Police Force (GD) HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWADTAP/2011/30.html" \o "View Case" [2011] NSWADTAP 30; Rota v. Manly 16 Foot Sailing Club & SafeCorp Security Pty Ltd [2012] NSWADT 88; State of NSW v. Whitfield [2012] NSWADTAP 27; Talbot v. Sperling Tourism & Investments Pty Ltd (formerly Mount 'N' Beach Safaris Pty Ltd) [2011] NSWADT 67; Tupou v. Scruffy Murphy's Pty Limited & Ors [2007] NSWADT 192; Walker v New South Wales [2003] NSWADT 13; Waters v. The Public Transport Corporation (1991) 173 CLR 349; Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; Wilde v University of Sydney (EOD) [2004] NSWADTAP 32; Winky Pop v. Hobsons Bay CC [2008] VCAT 1512
• Category: Principal judgment
• Parties: Richard Sleeman (Applicant); Tulloch Pty Ltd (t/a Palms on Oxford) (Respondent)
• Representation: Counsel; E Cohen (Applicant); S Chrysanthou and B Styles (Respondent); Sylvester & Browne Lawyers (Respondent)
• File Number(s): 121048

reasons for decision

Introduction

1 The Applicant, Mr Richard Sleeman, claims that at approximately 11:30 p.m. on 23 December 2011, he was in a queue with three friends seeking to gain entry to the Palms on Oxford nightclub (the nightclub) operated by the Respondent.

2 He was at that time a 60 year old man. He claims that he was singled out by the doorman and refused entry. He believes that this was because of his age.

3 On 10 January 2012, Mr Sleeman lodged a complaint with the Anti-Discrimination Board (ADB) alleging discrimination on the ground of age.

4 The complaint has been characterised by the President of the ADB (the President) as discrimination on the ground of age in the provision of goods and services in breach of s.49ZYA and s.49ZYN of the Anti-Discrimination Act, 1977 (ADA).

5 The Respondent denies any unlawful discrimination and says that Mr Sleeman was refused entry to the nightclub by reason of his perceived state of intoxication and quarrelsome or disorderly conduct which was consistent with the Respondent's obligations under the Liquor Act 2007 and the Liquor Regulation, 2008

6 The President of the ADB referred the complaint to the Tribunal pursuant to s.93C of the ADA on 13 April 2012 and provided a summary of complaint (the President's Summary) and bundle of materials (the President's Bundle).

The Hearing

7 Mr Sleeman filed and served no Points of Claim. He proceeded on the basis of the President's characterisation of his complaint.

8 The hearing having been set down for 2 days commenced on 24 February 2013. At the conclusion of the first day, Mr Sleeman by his counsel made an application for an adjournment (the adjournment). He sought to introduce further evidence concerning the identity of the doorman who was the subject of the complaint. That adjournment was granted and the hearing concluded with further evidence from Mr Sleeman and submissions on 19 March 2013.

9 Mr Sleeman made affidavits on 30 July 2012, 11 October 2012 and 25 February 2013. He also gave evidence. Further evidence was given for Mr Sleeman by Warwick Everingham who made affidavits on 28 August 2012 and 9 October 2012 and Adam Clifford who made affidavits on 28 August 2012 and 10 October 2012.

10 Mr Sleeman tendered an affidavit of Tim McDermott, General Manager, Sydney of DMG Radio sworn 5 November 2012. Mr McDermott was not required for cross examination. Mr Sleeman also tendered a handwritten report from Dr Philip Warburton dated 18 March 2013.

11 Evidence was given on behalf of the Respondent by Peter Inwood, its sole director and secretary, Rodney Innes, the licensee of the nightclub, Clint Unwin, a licensed security guard and Rodney Blume, David Bailey, Victor Naudi and Robert Donnelly, sometime patrons of the nightclub.

The Applicant's Evidence

12 Given the alleged basis for the complaint and the contest between the parties as to what transpired, it is necessary to review the evidence in some detail.

13 Mr Sleeman gave evidence that around 11:30 p.m. on the Friday night of December 23, 2011 he was in a queue to gain entrance to the nightclub with three friends, Warwick Everingham, Adam Clifford and Will Kemp. He was at that time a 60 year old man, had grey hair and was balding. He was wearing a collared shirt, jeans and leather shoes. He had not been drinking and does not take recreational drugs. He and his friends were talking quietly amongst themselves.

14 He gave evidence that there were about 20 persons in the queue of which he was sixth. He says that the male doorman was around 30 years old and of "islander" or "middle eastern" appearance. The doorman shouted loudly at him in the presence of others in the queue and passers-by and said:

"You are too drunk to get in."

He then pointed to Mr Sleeman and said:

"You are way too drunk. Go and sober up somewhere else. You can't come in."

15 Mr Sleeman says that he left the queue without creating a fuss. He was totally sober. He considered that it was "obvious" that he had been refused entry:

"... because [he] was considered too old, perhaps too square, for [the Respondent's] club".

16 Mr Sleeman says that as he left the club he said to the door person:

"This is a disgusting piece of age discrimination of which any organisation, especially a gay club, and especially at Christmas, should be well and truly ashamed."

17 Mr Sleeman contacted the Star Observer a week or so later. He wanted to publicise the fact that the nightclub had discriminated against him on the evening and that others were liable to suffer the same hurt and humiliation and embarrassment. He denied that he was trying to name and shame the nightclub.

18 Adam Clifford gave evidence that he had been with Mr Sleeman for one or two hours prior to lining up at the entrance to the nightclub at around 11:30 p.m. They had been in a hotel for about an hour beforehand. He did not recall whether Mr Sleeman had had a drink. He said that Mr Sleeman was completely sober. He and Will Kemp were standing in front of Mr Sleeman and Mr Everingham. He, Mr Kemp and Mr Everingham were allowed entry but Mr Sleeman and possibly Mr Everingham were then stopped and so they didn't proceed. The doorman looked at Mr Sleeman then pointed at him saying loudly:

"You are too drunk to get in, you can't come in."

He did not hear anything else said by the doorman to Mr Everingham and Mr Sleeman.

19 Mr Everingham gave evidence that he had been with Mr Sleeman for 1 to 2 hours prior to lining up to gain entrance to the nightclub at around 11:30 p.m. on 23 December 2011. He did not see Mr Sleeman drink alcohol at any time. He considered that Mr Sleeman was completely sober.

20 Mr Everingham was standing in the queue and saw the doorman look directly at Mr Sleeman and then heard him say loudly to Mr Sleeman:

"You are too drunk to get in. You can't come in. You won't be having any more here."

21 The doorman was pointing at Mr Sleeman and speaking loudly enough so that the crowd in the queue and passers-by could hear. He said:

"Go and sober up somewhere else."

22 Mr Everingham said that neither of them was drunk or unruly. He heard Mr Sleeman accuse the doorman of age discrimination but not exactly what was said. Mr Everingham was around 57 years old at the time of the incident.

23 Mr Sleeman confirmed in cross examination that the doorman said nothing to him about his age. Mr Everingham confirmed that the doorman did not say anything to him or Mr Sleeman about their ages. He conceded that the first time the question of age was raised was when Mr Sleeman raised it when discussing the incident later.

24 Mr Everingham conceded that the reason for Mr Sleeman's exclusion being because of age was just speculation and that he had no idea why he wasn't admitted to the club. Mr Clifford agreed that the conclusion was speculative and that it was possible that there could have been another reason why Mr Sleeman was refused entry.

25 Mr Clifford conceded that in an email written on 22 March 2012 to the President of the ADB, before his affidavits were sworn, he did not say he took the view that it was because of Mr Sleeman's age that he wasn't allowed in stating merely:

"We considered there must be some other reason for not allowing entry and moved on."

26 Mr McDermott's evidence concerned the effect of the alleged incident upon Mr Sleeman. He was aware that Mr Sleeman had produced radio programs at DMG Radio regularly campaigning on air against alcohol abuse, alcohol related violence and extended licensing hours. These programs included alcohol related interviews with politicians, senior police, hospital staff and paramedics, the Australian Hotels Association, licensed premises owners and managers, alcohol counsellors, domestic violence counsellors and others associated directly or indirectly with alcohol sales and service. His evidence was that Mr Sleeman's integrity and credibility, and that of any radio program he worked on, would be seriously compromised if it was established that he had been too drunk to be admitted to a nightclub and singled out for drunken behaviour.

27 Dr Philip Warburton provided a handwritten certificate dated 18 March 2013 in the following terms:

"This is to certify that Richard Sleeman suffered a string of major medical problems [ruptured?] colon - medical respiratory infections, Feb-July 2012.

These events may have been contributed to by major stress following an unfortunate event Christmas 2011."

The Respondent's Evidence

28 Mr Unwin's evidence was that he is a licensed security guard and currently employed by ADCAS Pty Limited as a subcontractor. He obtained his security licence in 2000. He has worked as a security guard on and off for 12 years and at the nightclub for 8 years. In November 2006 he completed a certified course in the responsible service of alcohol. He is also employed as a plain clothes investigator in the Australian Customs & Border Protection Service. He has worked for the Service since 2005 and has been an investigator since 2008.

29 On 23 December 2011, Mr Unwin was subcontracted by ADCAS Pty Limited to provide security services at the nightclub. His hours of duty were 9:00 p.m. to 3:30 a.m.

30 At around midnight on 23 December, Mr Unwin was the only doorman performing duties at the front door of the nightclub. Another doorman was on duty but was located downstairs at this time. He saw a group of three males approach the entrance to the venue one of whom appeared to be red in the face. He described that person as being approximately 50 to 60 years of age, bald, about 5ft 10in. to 6ft tall. He gave evidence that upon asking three of the males where they had come from he was told that they had been at a golf day and had just finished dinner. He asked:

"How much have you had to drink today?"

One of the males said that they had consumed some wine with dinner but not excessive amounts.

31 He then spoke to the male with the reddish complexion and asked him:

"How much alcohol have you consumed?"

32 Mr Unwin gave evidence that that person immediately became agitated and said loudly that he had not consumed any alcohol and was in a sober state. The person said that he should not be subjected to questioning regarding such matters.

33 Mr Unwin's evidence was that as a result of the person's complexion and demeanour when asked questions he suspected that the person was affected by alcohol. His evidence was that the person had decided not to enter the nightclub because he objected to being asked questions regarding his sobriety. Mr Unwin had not at that stage told any of the males that they had been excluded from the premises or would be refused entry. He then continued his conversation with the other males explaining that it was his job to ensure that those who wished to enter the venue were not intoxicated or affected by alcohol or drugs. Those males appeared calm and patient. They confirmed that they had been playing golf that day and had had a few drinks with dinner.

34 The subject male said to Mr Unwin that he would regret refusing him entry and that he would name and shame the venue to the media as a result of the incident. He concluded by asking Mr Unwin whether he knew who he was.

35 Mr Unwin's evidence was that he explained to the other males that they would be allowed to enter the venue if they wished but that their friend would not be allowed to enter the venue due to his perceived intoxication and his argumentative and aggressive behaviour. The males then walked away.

36 Mr Unwin recorded the incident in the venue incident book. The relevant extract from the incident book was in evidence. The time of the incident is 12:05 a.m. It is dated 24 December and apparently reported and signed by Mr Unwin. It is in Mr Unwin's handwriting. The incident description states:

"Refuse male. Refused to line up. Lined up and then went in. Male abused security and said he would publicly defame our names in newspaper."

37 Mr Unwin conceded that when first approached he had no reason to question Mr Sleeman in relation to aggressive behaviour. He wasn't falling over nor was he able to smell alcohol on his breath. It was his red complexion which Mr Unwin knew to be a sign of possible consumption of alcohol that caused him to question Mr Sleeman.

38 Mr Unwin's evidence was that Mr Sleeman had not been refused entry by reason of his age. He was eventually refused entry as a result of his perceived intoxication together with his argumentative and aggressive behaviour.

39 Mr Inwood gave evidence that he was the sole director and secretary of the Respondent which operated the nightclub, a position which he had held since 2005. He first became aware of the incident on 9 January 2012 when contacted by the Star Observer and informed of an alleged discrimination claim. He said that in a conversation with Mr Unwin on 12 or 13 January 2012 he had been informed of the incident involving a male who was refused entry and that the male had threatened "to name and shame" the nightclub as a result. He said that Mr Unwin had informed him that the male person was refused entry due to perceived intoxication as well as being argumentative. Mr Inwood said that the incident in the incident book had been written up when he looked at the book on returning to work after Christmas.

40 Mr Inwood said that the venue was not open on Christmas Day and did not reopen until New Year's Eve. He said that there was no CCTV footage of the incident because the security cameras were left running while the premises were unoccupied between Christmas Day and New Year's Eve and the hard-drive had been recorded over in that time.

41 Mr Inwood was cross examined about when he first became aware of the incident. He said that on 27 December 2011 a suggestion had been made to him in the Oxford Hotel that somebody had been embarrassed outside the club but he did not marry up that suggestion with the incident the subject of the complaint until 9 January 2012 when he received a telephone call from the Star Observer. He had not taken steps to preserve footage of the incident in the interim.

42 Mr Innes gave evidence that he was the licensee of the nightclub, a position which he had held for about 2½ years. He had previously worked there as club manager between 2004 and 2010 and as a barman at the club from 2001 until 2004. His duties as licensee included overseeing the general operation and running of the club including compliance with the club's house policy.

43 Between midnight and 1:00 a.m. on 24 December 2011, he had a conversation with Clint Unwin. Mr Unwin told him that a male person who had been refused entry had threatened to name and shame the venue. Mr Unwin had told him that the male had been refused because he appeared to be under the influence of alcohol and had become argumentative when questioned about his sobriety. Mr Innes did not seek any further details it being occasionally the case that patrons are refused entry due to their level of intoxication.

44 Mr Innes was contacted on 9 January by a reporter from the Star Observer concerning the incident with Mr Sleeman. He responded that the club does not discriminate against persons for any reason, let alone age.

45 In cross examination, Mr Innes gave evidence that a second security guard was working that evening by the name of Harpreet Gill known as "Harry". He no longer works for the club and was not present in the hearing room or sitting outside.

46 Ms Cohen on behalf of the Applicant put it to Mr Innes that the incident being complained of was one in which "Harry" had shouted at Mr Sleeman. Mr Innes said that that wasn't the information given to him by Mr Unwin. It was put to him that the incident in the incident book was not the same incident about which Mr Sleeman complained. He disagreed. Mr Innes conceded that there was a time when Mr Unwin was not on the door whilst Mr Gill was.

The Adjournment

47 At the conclusion of the evidence on the first day, Ms Cohen on behalf of Mr Sleeman sought to recall Mr Sleeman. She said that she had received instructions that Mr Unwin was not the person who had addressed her client and refused him entry to the nightclub. She also said that it was a different person who resembled very much somebody whom her client believed was to be called as a witness and whom he had seen outside the hearing room.

48 Ms Chrysanthou on behalf of the Respondent objected to the application on the basis that her client was not in a position to respond to the allegation. She said that "Harry" was not currently working with her client and that an "islander" looking person who was outside Court was in fact the owner of ADCAS Pty Limited, who did not act as a security guard. If the adjournment was to be allowed Ms Chrysanthou wished to have an appropriate opportunity to respond. If new evidence was to be given by Mr Sleeman she required both Mr Everingham and Mr Clifford to be available for cross examination.

49 The Tribunal allowed the application requiring the Applicant to file and serve any further evidence on or before 4:00 p.m. on 1 March 2013 and the Respondent file any further evidence in reply on or before 15 March 2012. The matter was relisted for one day on 19 March 2013. Costs were reserved.

Further evidence of Mr Sleeman

50 Mr Sleeman swore a further affidavit on 25 February 2013. His evidence was that when he saw Mr Unwin approach the witness box in the hearing on 25 February 2013 he bore no resemblance to the security guard who had excluded him from the nightclub on 23 December 2011. He was certain that he was not the person who excluded him. He gave further evidence that he had observed a person sitting outside the hearing room with the witnesses for the Respondent who had a similar appearance to the security guard who had excluded him and that he had assumed that this was Mr Unwin. This person was of "islander" or "middle eastern" appearance.

51 In cross examination Mr Sleeman described the person who excluded him as of "middle eastern" or "islander" appearance. He had "dark brown skin, stocky build, rugby build, not much of a neck, looked like a football front-row forward but dark brown skin and stocky build". He thought he was 5ft 10in. tall and probably 90 to 100kg. He was certain that the person was securing the door and policing who went in to the nightclub. It was not possible that he was just a drunk person on Oxford Street.

52 None of Mr Unwin, Mr Everingham or Mr Clifford attended before the Tribunal on the adjourned date. Nor was the fourth member of the party, Mr Kemp, called to give evidence on behalf of the Applicant.

Reconciling the evidence

53 The text of the affidavits sworn by Mr Everingham and Mr Clifford on 28 August 2012 is in some respects identical. Mr Everingham says:

"I was with Richard Sleeman for 1 or 2 hours on 23 December 2011 prior to lining up to gain entrance to Palms on Oxford nightclub Street at about 11:30 p.m." (para. 1)

54 Mr Clifford said:

"I was with Richard Sleeman for 1 or 2 hours on 23 December 2011 prior to lining up to gain entrance to Palms on Oxford nightclub at about 11:30 p.m." (para. 1)

55 Mr Everingham said:

"In the queue, Richard was standing quietly with myself. I saw the doorman look directly at him, then heard him loudly and publicly say to Richard: 'You are too drunk to get in. You can't come in. You won't be having any more here.' He was pointing at Richard and talking loudly enough so that the crowd and passers-by could hear." (para. 2)

56 Mr Clifford said:

"In the queue, Richard was standing quietly with myself and the two others. I saw the doorman look directly at him, then he pointed at him. I heard him loudly and publicly say to Richard: 'You are too drunk to get in. You can't come in.' He was pointing at Richard and talking loudly enough so that the crowd and passers-by could hear." (para. 2)

57 In two respects the words alleged of the doorman are those set out in Mr Sleeman's affidavit sworn 30 July 2012:

"You are too drunk to get in. You are way too drunk. Go and sober up somewhere else. You can't come in." [Our emphasis.]

58 This similarity in their evidence must raise a question as to the independence and thus the reliability of these witnesses' recollections.

59 Mr Clifford and Mr Everingham readily conceded when they were unsure of or did not know the answer to a question in cross examination and both witnesses impressed the Tribunal in cross examination as giving the best of their recollection. However, they confirmed that they had discussed the matter and the instances of their evidence in chief referred to must carry less weight for the reason expressed above.

60 There were inconsistencies in the Applicant's evidence. Mr Sleeman's evidence is that he was standing separately to the others and had been singled out by the doorman. Mr Everingham said that they were standing in line and could have been standing together in a group. Mr Sleeman said that after the incident his friends, Mr Clifford and Mr Everingham, were mocking him in a friendly way which upset him. He said that he heard the word "dinosaur" from someone in the queue. Mr Clifford and Mr Everingham denied mocking Mr Sleeman. Mr Sleeman said that there was nothing said to anyone in their group of four other than him. In cross examination Mr Clifford said that it was possible that the doorman had greeted the group but could not remember any conversation. Mr Everingham conceded that the comments of the doorman could have been directed to him as well as Mr Sleeman.

61 Mr Sleeman in cross examination denied that he had been red faced or flushed. He denied that he was aggressive or agitated or that he was on any medication likely to give rise to a red complexion. Mr Sleeman did not believe that the doorman could have made a mistake about his appearance.

62 Mr Clifford did not recall that Mr Sleeman was red faced during the incident. Mr Everingham could not say but agreed that it was possible. Mr Clifford agreed that Mr Sleeman became upset after he was accused of being drunk. Mr Everingham said that Mr Sleeman was distressed. Mr Clifford agreed that it was possible that the security guard had made a mistake about Mr Sleeman being intoxicated.

63 When referred to the description of the doorman as being "islander" or "middle eastern", Mr Sleeman agreed that he could make a mistake about someone's appearance. He was not sure of the doorman's ethnicity. He thought the doorman was about 30 years old. In his initial complaint contained within the President's Bundle Mr Sleeman did not describe the appearance of the security guard. Mr Everingham thought that the security guard was of "some sort of mediterranean looks". Mr Clifford did not describe the guard.

64 In Mr Sleeman's affidavit of 25 February 2013, he said that he observed a person sitting with the witnesses for the Respondent outside the hearing room and assumed that this was Clint Unwin as:

"he had a similar appearance to the security guard who had excluded me from the Palms."

65 Counsel for the Respondent submitted that the person Mr Sleeman was referring to, being a director of ADCAS Pty Ltd, was in fact a middle aged Indonesian gentleman.

66 The Respondent submitted that to the extent that it was necessary to make a credit finding the Tribunal should find that Mr Sleeman's demeanour in the witness box was not that of a truthful witness. It was submitted that he was argumentative and tended to give speeches rather than answer questions. Although this did occur on occasions and it was evident that Mr Sleeman was concerned to put his case strongly the Tribunal is not satisfied that Mr Sleeman was not a truthful witness and accepts his evidence as that of someone who was attempting to give their best recollection of events.

67 As the Tribunal discussed in Tupou v. Scruffy Murphys Pty Ltd & Ors [2007] NSWADT 192 at [32] - [34]:

"33. Inconsistency in some or all of the evidence given by witnesses does not mean that one or other is being untruthful;

34. Human memory is fallible. The ability to recollect particular events is determined by many factors, including the passage of time; where the contemporary record was made of the event; the strength of a person's memory and any external factors that impede recall, such as lack of sleep, alcohol and drug consumption.

35. The ability to recall a particular event will also be determined by its significance to the individual seeking to recall it ..."

68 The inconsistences must however raise a doubt as to the reliability of Mr Sleeman's recollection of these matters.

69 Mr Sleeman also denied making threats to name and shame the club. However, he subsequently contacted the Star Observer about the incident. He did make reference to discrimination by the nightclub. In cross examination Mr Sleeman gave an alternative version of his words to the doorman:

"This is just age discrimination particularly in a gay club is disgusting, shameful."

70 Mr Everingham and Mr Clifford heard Mr Sleeman say something to the doorman about age discrimination but not exactly what was said. Mr Clifford did not hear Mr Sleeman say that he would name and shame the venue or anything to that effect.

71 Mr Unwin although giving a different version of the conversation, positively identified Mr Sleeman and was not shaken from this in vigorous cross examination. The cross examination proceeded as follows:

Cohen "You couldn't have confused him with another person, with another group of men could you?"

Unwin "No, I remember Mr Sleeman. Now looking in the courtroom I remember the incident."

Cohen "If you had seen Mr Sleeman in the street you wouldn't have recognised him would you?"

Unwin "Yes, I do recognise Mr Sleeman."

Cohen "You are absolutely sure about that?"

Unwin "Yes, I do. I have not seen Mr Sleeman at Palms since that day ... but I do recall Mr Sleeman's face. I'd recognise him today."

Cohen "It could have been someone else that you are referring to in this particular incident?"

Unwin "No, that is incorrect. I am confident today that the incident at 12:05 in the book is the incident in relation to Mr Sleeman."

Cohen "But you're not absolutely sure?"

Unwin "Yes, I am. I am absolutely sure."

72 Mr Unwin wrote the incident in the incident book. He spoke to Mr Innes about the incident on the evening and Mr Innes confirmed this. He spoke to Mr Inwood in mid-January and Mr Inwood confirmed this.

73 It was put to Mr Unwin in cross examination that he was not involved in the incident in which the security guard pointed at Mr Sleeman. He said that that had not occurred in his presence.

74 It was put to Mr Unwin that the incident where a person had attended after a golf match with his friends was not the incident with Mr Sleeman. Mr Unwin confirmed that the incident in the incident book was that concerning Mr Sleeman because he recalled the comments which Mr Sleeman had made to which he made reference in the incident report. However, in their evidence Mr Sleeman and Mr Everingham denied that the doorman questioned them at all about where they had been on the evening and, contrary to Mr Unwin's evidence, that there was any discussion of them having played golf which they had not. Mr Clifford could not recall the conversation with the doorman. Mr Unwin put the number in the group at three when there were plainly four.

75 Mr Unwin was asked whether it was possible that Harry could have been on the door during the incident. Mr Unwin replied that it was not possible and that he remembered the incident with Mr Sleeman from the beginning to its completion.

76 Mr Unwin also impressed the Tribunal as a witness attempting to give his best recollection of events. He is a trained professional investigator with the Australian Customs and Border Protection Service and he positively identified Mr Sleeman.

77 In some respects it was against Mr Unwin's interest to give this evidence. Counsel for the Respondent advised the Tribunal that Mr Sleeman had commenced separate proceedings against the nightclub in which Mr Unwin was named as a defendant. There was no reason advanced for him to be untruthful in his evidence.

78 The inconsistency in the evidence concerning the identity of the doorman was of concern to the Tribunal. The wording of the incident report is consistent with Mr Clifford's evidence that he and Mr Kemp and possibly Mr Everingham were allowed entry. There is however no reference to intoxication. Nor can Mr Unwin's version of the number of people in Mr Sleeman's party or of the conversation about the golf day be reconciled with the Applicant's evidence. It is possible that Mr Unwin was mistaken about that aspect of the conversation. It was common ground that the incident occurred during one of the busiest nights of the year and Mr Unwin's recollection of the surrounding conversation might not be entirely accurate.

79 Mr Sleeman denied saying that he would name and shame the nightclub. In fact, he did contact the Star Observer and report the incident. In both versions which he gave of the words spoken to the doorman he used the word "ashamed" or "shameful" and this could have been misconstrued by the doorman as a reference to naming and shaming the nightclub.

80 Mr Unwin was not shaken in cross examination as to the identity of Mr Sleeman and his recollection of the incident. Mr Unwin certainly wrote the incident report and his conversations with Mr Inwood and Mr Innes were corroborated. Mr Sleeman's evidence about the description and identity of the security guard who excluded him, although partially corroborated by Mr Everingham, was not consistent.

81 Having regard to the evidence, the Tribunal is satisfied on the balance of probabilities that Mr Unwin was the security guard the subject of the complaint. This is not to say that the Tribunal doubts that Mr Sleeman gave his evidence to the best of his recollection, merely that when weighing all the evidence the Tribunal cannot be satisfied that "Harry" was the doorman at the time of the incident.

82 As to the actual words spoken by Mr Unwin to the group, Mr Unwin was plainly in error as to a number of aspects of the conversation including the number of persons in the group and the discussion concerning the golf day. However, it is common ground that Mr Sleeman was refused entry and that at that time the doorman said something to him about intoxication. It is not necessary to determine the actual words used. It is unlikely in the Tribunal's view that the entirety of Mr Unwin's evidence concerning the conversation at that time is an accurate recollection. Nor is it likely that the words attributed on Mr Sleeman's part were the actual words used. It is clear from the evidence of Mr Sleeman and Mr Everingham that nothing was said by the doorman to Mr Sleeman or any member of his party about age.

83 Mr Everingham agreed that it was possible that Mr Sleeman was red faced during the incident and he and Mr Clifford said that Mr Sleeman was upset and distressed during the incident. This is consistent with Mr Unwin's evidence as to the basis upon which he considered that Mr Sleeman might have been intoxicated by reason of his complexion. The Tribunal accepts this evidence.

84 The Tribunal is satisfied that the words spoken by Mr Sleeman concerning the conduct of the nightclub in excluding him were construed by Mr Unwin as a threat to name and shame the nightclub. This is consistent both with the use of the word "ashamed" or "shameful" in Mr Sleeman's recollection and the reports given by Mr Unwin in the incident book and to the director and licensee. The Tribunal accepts that Mr Unwin formed a view that Mr Sleeman was argumentative by reason of what he heard.

The operations of the nightclub

85 In cross examination Mr Sleeman confirmed that he had been to the nightclub on two or three earlier occasions in 2005 and 2006. He had also attended with Mr Everingham around Christmas 2010. He said that his party on that occasion was not going to be allowed into the nightclub until one of his companions recognised the doorman and they were admitted. He confirmed that at this time he was 59 years of age. These events were confirmed by Mr Clifford and Mr Everingham.

86 Mr Sleeman said that when he attended at the nightclub in 2005 and 2006 it had a reputation for "being a bit daggy". The music was 60's, 70's and 80's and there was an older crowd. He said that he noticed a considerable difference when he was there in 2010, that there was a younger crowd and more upbeat music. He could not say what percentage of people there were over 20, 30 or 40 years of age. He said that he recalled coming away with the feeling that the "vibe" of the nightclub had changed from his previous visits.

87 Mr Clifford agreed that it was not unusual to see people in their 40's and 50's in the nightclub. Mr Everingham accepted that when previously in the nightclub there were men in their 50's and 60's who attended.

88 Mr Unwin's evidence was that since working at the venue he has observed males up to 70 years of age attend on a semi-regular basis. Recently a regular male patron had celebrated his 70th birthday at the venue.

89 Mr Innes made reference to the nightclub's house policy which was in evidence. This stated:

"HOUSE POLICY

WE ENDEAVOUR TO MAKE

Palms on Oxford

A SAFE VENUE FOR ALL OUR PATRONS

`CORRECT FORMS OF ID MUST BE PRODUCED PRIOR TO

ENTRY AND/OR AT THE REQUESTS [SIC] OF MANAGEMENT

RESPONSIBLE SERVICE OF ALCOHOL GUIDELINES ARE

ENFORCED IN THIS VENUE

SMOKING OF ANY SUBSTANCE IS AGAINST THE LAW

INAPPROPRIATE, OFFENSIVE OR AGGRESSIVE BEHAVIOUR

WILL NOT BE TOLERATED AT ANY TIME

INTOXICATED PATRON [SIC] WILL BE REFUSED ENTRY TO THIS

VENUE

OPENED TOED SHOES ARE NOT TO BE WORN

IN THIS VENUE BY MALES OR FEMALES

ILLEGAL ACTIVITIES WILL NOT BE TOLERATED & WILL

BE REPORTED TO THE POLICE

REFUSAL TO LEAVE THIS VENUE WHEN ASKED MAY

COST YOU AN ON THE SPOT FINE OF $550

Licensee Rodd Innes

Lic N/-624008073."

90 Mr Unwin said that he was aware of the house policy and ensured adherence to it.

91 Mr Unwin gave evidence that he had been instructed on how to carry out work as a security guard at the venue by a former director of the Respondent. He was advised that it was a gay and lesbian friendly venue and there was discussion of the regulations and his security licence and the operation of the Liquor Act. He was at no time given instructions to discriminate against any person by either the director or licensee. He has not refused entry to any person on the grounds of age.

92 Mr Inwood gave evidence that since he had been involved with the nightclub it had never received a discrimination complaint. He said that as the sole director he makes it his business to ensure that the club and all staff adhere to all appropriate legal licensing laws and regulations as well as the venue policy. He described the clientele in the club as being predominately male ranging in age between late 20's to early 60's. He said he had regulars who were older than 60 years and that recently the club had hosted a 70th birthday party for one of its regular patrons. He was aware of numerous other regular patrons who were well over 60 years of age.

93 Mr Innes gave evidence that since commencing work at the club he had never seen or heard any complaints about age discrimination or any other type of discrimination either by patrons of the club or any of its employees. He has never seen staff members or security guards engage in any form of discrimination.

94 He gave evidence that patrons in the club range in age from mid 20's through to mid 60's. Quite a few of the regular patrons are aged between 50 and 65 years and two in particular are over 70.

95 Mr Innes gave evidence that Mr Unwin had worked at the club for a very long time and that he was unaware of any previous accusation of him being discriminatory or rude. He had seen Mr Unwin work the door and found him to be courteous, polite and in possession of a calm demeanour.

96 Rodney Blume gave evidence that he was 67 years old. He has been attending the nightclub since February 2000 on a semi-regular basis. He met Peter Inwood regularly and considered himself an acquaintance. Palms is a popular nightclub particularly on Friday and Saturday nights when it is packed out. He said there is usually a long queue of people at the door waiting to be allowed in. He said that he has from to time seen people there who appear to be his age and older. In his observation the average age of patrons is older than similar venues which he has attended. The music played is generally older "classics" from the 70's, 80's and 90's and attracts an older crowd. He is unaware of any person being refused entry on account of age, nationality, race, gender or sexuality. He has seen people turned away who appear to be affected by alcohol or possibly drugs. He has observed security and bar staff go about their duties in good humour, respectfully and courteously without any hint of discrimination.

97 In cross examination Mr Blume said that he had himself been refused entry to the nightclub including only several days previously for the reason that he was seeking to enter within 20 minutes of closing time and the nightclub wasn't allowing anyone else in. He had also been refused entry when he was told that he might have had a bit too much to drink.

98 Mr Naudi gave evidence that he was 70 years of age. Until the insertion of a pacemaker 12 months ago he would attend the nightclub at least once a week usually on Saturday evenings. He now visits the club about once a month at 9:30 to 10:00 p.m. and stays until 3:00 or 4:00 a.m. He has been attending the nightclub for over 50 years. He had known Peter Inwood and the licensee, Rod Innes, for about 8 years. The age of people attending the nightclub ranged from 18 through to mid to late 60's. He was aware of several other people who attended the nightclub of a similar age to him. He had not seen or heard of anyone being refused entry to the nightclub based upon their age or physical description. He had celebrated his 60th and more recently his 70th birthday parties at the nightclub.

99 Mr Bailey gave evidence that he was 60 years old and attended the nightclub on a regular basis, usually twice a week. He said that most of the patrons are middle aged or older and the typical crowd was of a more mature age. He knew a few regulars who attend the club who are over 55 years old and one in particular who is at least 70. He has never been refused entry because of his age or for any other reason.

100 In cross examination he acknowledged that he knew Rodney Innes well. He has been attending the club since around 2000 or just before. He was able to name two other regular patrons over the age of 65.

101 Mr Donnelly was unable to attend by reason of his age. His affidavit was read without objection. His evidence was that he had attended the nightclub on many occasions between once and twice per week. He has not been to the venue for the last 3 years or so as he is currently 76 years old. In December 2005 he held his 70th birthday party at the club with 15 to 20 guests in attendance. His evidence was that the patrons were generally, but not exclusively, between 20 and 60 years old. He has not infrequently encountered patrons whose ages were similar to his own. He had never been refused entry by security staff.

102 It was submitted on behalf of the Applicant that the patrons who gave evidence, whilst older, were regulars and friendly with the licensee and that it was for this reason that they were given entry to the nightclub.

103 However, each witness gave evidence of seeing other mature patrons in the nightclub. There is no reason to doubt the uncontested evidence of these witnesses and the Tribunal finds that the nightclub caters for an older crowd and that it has regular patrons well over 60 years of age. This is consistent with Mr Sleeman and Mr Everingham both then in their late 50's having been admitted 12 months previously and Mr Everingham not being excluded on the night of the incident. No evidence that the nightclub pursued a policy of age discrimination was advanced.

The operation of the Liquor Act 2007 (Liquor Act)

104 The Respondent made reference to its obligations under the Liquor Act.

105 S.5 of the Liquor Act provides:

"5 Meaning of "intoxicated"

(1) For the purposes of this Act, a person is "intoxicated" is:

(a) the person's speech, balance, co-ordination or behaviour is noticeably affected, and

(b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of consumption of liquor."

106 S.73 of the Liquor Act provides:

"73 Prevention of excessive consumption of alcohol on licensed premises

(1) A licensee must not permit:

(a) intoxication, or

(b) any indecent, violent or quarrelsome conduct, on the licensed premises.

Maximum penalty: 100 penalty units.

(2) A licensee or an employee or agent of a licensee must not, on the licensed premises, sell or supply liquor to an intoxicated person.

Maximum penalty: 100 penalty units."

107 S.77 of the Liquor Act, 2007 provides relevantly:

"(1) In this section:

'authorised person' means a licensee, an employee or agent of a licensee or a police officer.

(2) An authorised person may refuse to admit to, or may turn out of, licensed premises any person:

(a) who is at that time intoxicated, violent, quarrelsome or disorderly,

(b) whose presence on the licensed premises renders the licensee liable to a penalty under this Act, or ..."

108 The Respondent was, pursuant to s.77, empowered to refuse to admit a person who was intoxicated or quarrelsome or disorderly within the meaning of s.5 of the Liquor Act. It was also entitled to refuse to admit a person whose presence on the premises rendered the licensee liable to a penalty under the Act. This would include penalties under s.73 for permitting intoxication or quarrelsome conduct on the licensed premises.

109 It was submitted by the Applicant that the redness of Mr Sleeman's face was not a matter which the doorman was entitled to take into account when considering whether Mr Sleeman was intoxicated.

110 S.5(3) of the Liquor Act provides that the Director General is to issue guidelines to assist in determining whether or not a person is intoxicated for the purposes of the Act. The guidelines operative at the time of the incident were not in evidence.

111 The Tribunal in the Equal Opportunities Division is not bound by the rules of evidence. However, they can and do provide an important guide: see FZ v. Commission for Children and Young People [2012] NSWADT 93 at [33] citing War Pensions Entitlement Appeal Tribunal; ex-parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 256; McGuirk v. University of New South Wales (GD) [2008] NSWADTAP 17 at [6].

112 The guidelines are not a legislative instrument within the definition of s.5(2) of the Evidence Act about which proof is not required under s.143(1) of the Evidence Act NSW 1995 and about which the Tribunal may inform itself in anyway it thinks fit.

113 The Tribunal does have general power to inform itself on a matter as it thinks fit: s.73(2). This power is subject to the requirements of procedural fairness: see McGuirk at [6]; Adamou v. Director-General of Social Security (1985) 3 AAR 321, 326 (Wilcox J), Weinstein v. Medical Practitioners Board of Victoria [2008] VSCA 193 at [28, 29]. It would be inappropriate to take the guidelines into account without informing the parties of their content and affording them an opportunity to make further submissions. Accordingly, the Tribunal does not have regard to such guidelines.

114 S.3 of the Liquor Act sets out the objects of the Act which include at s.3(1)(a):

"To regulate and control the sale, supply and consumption of liquor in a way that is consistent with the expectations, needs and aspirations of the community, ..."

It would be inconsistent with these objects for a licensee not to take into account other indicia of possible intoxication for the purpose of forming a view about whether a person is intoxicated prior to the exercise of the authority under s.77.

115 In view of these matters the Tribunal cannot be satisfied upon the material before it that the definition of intoxication in s.5 of the Liquor Act is exclusive or that Mr Unwin was not entitled to consider redness of face as a possible indicator of intoxication in Mr Sleeman's case.

116 Ms Cohen also submitted on behalf of the Applicant that there was no evidence that Mr Sleeman's speech, balance, co-ordination or behaviour was affected as a result of the consumption of alcohol.

117 The Tribunal has found that on Mr Unwin's evidence Mr Sleeman was perceived to be argumentative. Mr Unwin was entitled to form a view in the circumstances that that behaviour was as the result of the consumption of liquor within the meaning of "intoxicated" in s.5 of the Liquor Act. In any event, Mr Unwin was entitled to refuse admission to Mr Sleeman for behaviour which he considered to be quarrelsome or disorderly under s.77 of the Liquor Act.

Legislative provisions, burden and standard of proof

118 Relevantly for the purposes of this application s.49ZYA of the ADA provides:

"What constitutes discrimination on the ground of age

(1) A person ('the perpetrator') discriminates against another person ('the aggrieved person') on the ground of age if, on the ground of the aggrieved person's age or the age 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 is not of that age or age group or who does not have such a relative or associate who is that age or age group;

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case 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 age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons of that age or age group or a characteristic that is generally imputed to persons who are of that age or age group."

119 S.4A of the ADA provides:

"4A Act done because of unlawful discrimination and for other reasons

If:

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then for the purposes of this Act, the act is taken to be done for that reason."

120 S. 49ZYN of the ADA provides:

"49ZYN Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age:

(a) by refusing to provide the other person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

(2) Nothing in subsection (1) applies to or in respect of:

(a) benefits, including concessions, provided in good faith to a person by reason of his or her age;

(b) holiday tours offered or provided to persons who are of a particular age or age group.

(3) Nothing in this section renders it lawful for a person to discriminate against a person on the ground of age in disposing of goods, or in providing services, by gift or will or in accordance with the terms of a gift or will."

121 Mr Sleeman's complaint is that he sought and was refused entry to the Respondent's nightclub by reason of his age. This is a claim for direct discrimination. There is no claim for indirect discrimination under s.49ZYA(1)(b) of the ADA.

122 Accordingly, to make out the complaint Mr Sleeman must establish in line with s.49ZYA(1)(a) of the ADA that in the provision of goods or services the Respondent discriminated against him on the ground of age by, on the ground of his age, treating him less favourably than it treated or would have treated a person who is not of that age in the same circumstances or in circumstances which are not materially different.

123 The legal and evidentiary burden remains on Mr Sleeman to prove his case: Australian Iron & Steel Pty Ltd v. Banovic (1989) 168 CLR 165 at [176]: AEQ v. Department of Education & Communities [2011] NSWADT 194 at [29]: State of NSW (NSW) v Whitfield [2012] NSWADTAP 27 at [80] citing Howe v. NSW Farmers Association [2010] NSWADT 101 at [92].

124 The requisite standard of proof was considered by Hennessy DP in JM & JN v. QL & QM [2010] NSWADT 66 saying at [15]:

"... [it] has often been said in the context of anti-discrimination complaints, that when determining whether an applicant has discharged this onus, the principles in Briginshaw v. Briginshaw [1938] HCA 34 (1938) 60 CLR 336 should be applied: Sharma v. Legal Aid Queensland [2002] FCAFC 196 at [40]. Recently, in Qantas Airways v. Gama [2008] FCAFC 69 the Federal Court (Branson J at [139]) said that the application of 'the Briginshaw standard' is likely to lead a trier of facts into error:

"The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s.140 of the Evidence Act provides. It is an approach which recognises ... that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved."

"[16] Although not bound by the rules of evidence, we consider this to be the correct approach. Section 140 of the Evidence Act, 1995 states that:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject matter of the proceeding, and

(c) the gravity of the matters alleged."

125 The Tribunal adopts these comments. See also Rota v. Manly 16 Foot Sailing Club & SafeCorp Security Pty Ltd [2012] NSWADT 88 at [36] and [37]: Whitfield at [93].

Did the nightclub provide a service?

126 Services are defined broadly in s.4 of the ADA and relevantly include:

"(b) Services relating to entertainment, recreation or refreshment;

(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."

127 The evidence is that Mr Sleeman was immediately (Sleeman) or ultimately (Unwin) refused entry to the nightclub. The Respondent has conceded that such conduct would constitute refusing to provide a "service" as defined by the ADA: Tupou v. Scruffy Murphy's Pty Limited & Ors [2007] NSWADT 192 at [5].

Was the doorman an agent of the Respondent?

128 S.53(1) of the ADT Act provides that:

"An act done by a person as the agent or employee of the person's principal or employer which if done by a 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 act."

129 "Employee" is defined in s.49ZU to include a commission agent and a contract worker. S.4 provides that a "contract worker" means an employee who, under a contract of employment, performs work for an employer who has undertaken to perform that work for another person.

130 S.4 provides that "principal" means:

"...

(b) In relation to a contract worker, a person for whom a contract worker performs work otherwise than under a contract of employment."

131 In the Tribunal's summary of complaint it was noted that the Respondent accepted liability for the conduct of its employees [sic] and that there was no need to join any individual as a further respondent to the complaint.

132 In its written submissions, the Respondent confirmed that this was not a case of direct liability but one in which the Respondent is said to be vicariously liable for the conduct of the doorman. The Respondent has denied liability to the extent liability is found on the basis that any discrimination was not authorised under s.53(1) of the ADA or that all reasonable steps were taken to prevent any breach under s.53(3) of the ADA.

133 It is accordingly not in issue that at all relevant times Mr Unwin, an employee of ADCAS Pty Ltd, was the agent of the Respondent.

The Characteristics Extension

134 Whether a particular matter is a characteristic that appertains generally to people of a particular age, or is generally imputed to persons of a particular age under s.49ZYA(2) of the ADA, is a question of fact for the Tribunal: see Commonwealth v. Human Rights and Equal Opportunity Commission (Dopking No 1) (1993) 46 FCR 191; Walker v New South Wales [2003] NSWADT 13. Mr Sleeman gave evidence that he was "too old", "perhaps too square", "too conservative", had "grey hair", was "balding" and "being conservatively dressed". He gave further evidence that he had been discriminated against on the bases of "age and appearance, principally age ...."

135 No specific submission was made by the Applicant as to a particular characteristic appertaining generally to people of Mr Sleeman's age or generally imputed to persons of Mr Sleeman's age on the ground of which he was excluded from the nightclub.

136 However, in the Tribunal's view the characteristics which Mr Sleeman has identified could be said to appertain generally to people of his age or to be generally imputed to persons of his age.

Differential treatment and causation

137 There are two key components to a successful allegation of direct discrimination; the first being differential treatment and the second causation: Commissioner of Corrective Services v. Aldridge [2000] NSWADTAP 5. Differential treatment is to be considered first and if there is no differential treatment then it is unnecessary to consider causation: Heber v. Glen Henney & Son Pty Ltd (No 2) [2007] NSWADT 230 at [24-25]. See also Purvis v. New South Wales [2003] HCA 62: (2003) 217 CLR 92 at [231]. If the Tribunal finds that there has been less favourable treatment, it will then consider whether such treatment was on the ground of age: Heber at [26].

138 To determine whether there has been differential treatment the treatment afforded to the Applicant is to be compared with the treatment which would have been afforded to a comparator, being a person other than his age in the same or not materially different circumstances, in order to ascertain whether that treatment was objectively less favourable: see Aldridge at [46].

139 The comparison is properly to be made between the person said to have suffered the unlawful discrimination and a person without the protected characteristic who acts in the same way regardless of whether the complainant acted in that way because of their protected attribute, in this case age: see Purvis per: Gleeson CJ at [11] - [12]: Gummow, Hayne and Heydon JJ at [223] - [225]; and Callinan J at [273].

140 In this case no actual comparator has been identified. Where the comparator is hypothetical the differential treatment question and the causation question must amount to a single question, that is, why was the person treated as he was? Talbot v. Sperling Tourism & Investments Pty Ltd (formerly Mount 'N' Beach Safaris Pty Ltd) [2011] NSWADT 67 at [57] referring to Shamoon v. Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 at [7] and [8].

141 The Tribunal in Dutt v. Central Area Health Service [2002] NSWADT 133 at [63] considered that, in the case of a hypothetical comparison, the ratio in Aldridge, "If there is no relevant differential treatment it is unnecessary to consider the issue of causation" might be extended to include "but there is no basis on which to assess whether there would have been differential treatment until the cause for the actual treatment is known". See also: Duncan v. Chief Executive, NSW Office of Environment and Heritage (No 2) [2013] NSWADT 78.

142 Ms Cohen submitted that the appropriate hypothetical comparator was a person with Mr Sleeman's characteristics 10 to 20 years younger. Ms Chrysanthou submitted that the comparator would be a younger person behaving in the same way that Mr Sleeman was said to have behaved.

143 Applying Purvis the Tribunal considers that the appropriate comparison is between the Applicant who was red faced and argumentative with the characteristics of a person of his age, and a person belonging to a younger age group without the characteristics of age who was red faced and argumentative. See for example Whitfield at [63].

144 The High Court confirmed in Purvis that the test for causation in the context of anti-discrimination legislation is to consider why the aggrieved person was treated as they were. The focus is on the "true basis", the "genuine basis" (Gleeson CJ at [102]) or the "real reason" (per McHugh & Kirby JJ at [144]) for the treatment. See also IW v. City of Perth [1997] HCA 30; 191 CLR 1 at [63] per Kirby J. The test is objective. The Applicant does not need to prove that there was any intention to discriminate: Whitfield at [54] citing the decision of the Tribunal at [98].

145 In Nicholls & Nicholls v. Director General, Department of Education & Training (No 2) [2009] NSWADTAP 20 the Appeal Panel at [28] concluded that:

"The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex, race, disability, etc. (including the extended definitions of those grounds) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. 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 the treatment ..."

146 To establish causation Mr Sleeman will need to show that his age was at least one of the "real", "genuine" or "true" reasons for not being admitted to the nightclub. See also: Chi v. Technical & Further Education Commissioner (No 3) [2009] NSWADT 271 at [64-72].

147 In order to prove causation the Applicant must rely on either direct evidence of causation or seek to draw inferences from primary facts; AEQ at [30]. In this matter, Ms Cohen for the Applicant conceded that there is no direct evidence that age was one of the reasons for Mr Sleeman's exclusion from the club. Accordingly, Mr Sleeman must satisfy the Tribunal that an inference as to causation is available from primary facts.

148 The Appeal Panel in Whitfield at [79] found that whilst the Tribunal is not bound strictly by the rules of evidence it must at least have probative evidence. The ordinary principles relating to the drawing of inferences should apply.

149 The Tribunal in Chi at [85] considered the relevant considerations to which regard should be had in drawing an inference of causation:

"85 The exercise of drawing inferences has been discussed by the Tribunal in numerous decisions: for example, Hafez v. Warilla Women's Refuge Ltd & Ors [1997] NSW EOT (at page 5 of 35); AVB [1997] NSW EOT (at page 17 of 19); Edwards v. Bourke Bowling Club Ltd [2000] NSW ADT 31; Dutt v. Central Coast Area Health Service [2002] NSW ADT 133 at [70]. As the Tribunal observed in Dutt at [70], the authorities canvassed in those decisions, and in Seltsam Pty Ltd v. McGuiness [2000] NSW CA 29 (2000) 49 NSW LR 262, identify the following considerations in the drawing of inferences of discrimination:

(a) a causal link, such as that which is necessary in proving 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 a combination of facts, none of which viewed alone would support that inference;

(d) a fact 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 and innocent explanations are available on the evidence."

150 These principles were held to be unexceptional on appeal: Chi v. Technical & Further Education Division (EOD) [2010] NSWADTAP 67 at [8]. See also: Rota at [70].

151 The appropriate bases for the drawing of inferences was further considered by the Appeal Panel 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]."

152 Street CJ in Gurnett v. Macquarie Stevedoring Co Pty Ltd [1955] 72 WN (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 given 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].

153 When relying on an inference an applicant must identify the evidence on which the inference can reasonably be based: Rota at [70].

154 Ms Cohen submitted that the relevant evidence was that her client was not drunk when excluded from the nightclub and that he was 60 years of age. It was submitted that the exclusion for drunkenness was an excuse that the doorman made to cover up the fact that Mr Sleeman had been refused entry because of his age. She submitted that there was no evidence that Mr Sleeman exhibited any of what the Liquor Act defines as "intoxication" and that there was nothing in the Liquor Act about red faces. Ms Cohen submitted that discrimination on the grounds of age was the only logical conclusion that the Tribunal could reach taking into account all the circumstances.

155 The Respondent submitted that there is no evidence that any refusal of entry was due to Mr Sleeman's age and that Mr Sleeman's conclusion that this was so was unreasonable. The uncontested evidence was that the nightclub caters for a more mature crowd.

Findings

156 The Tribunal has considered the cumulative effect of the circumstances established on the facts. They are, putting Mr Sleeman's case at its highest, that he was 60 years of age with the characteristics which he has identified, that he was refused entry to the nightclub, that at the time of the refusal the doorman alleged that he was intoxicated and he was not intoxicated.

157 The Tribunal is not satisfied upon the basis of those facts that an inference can reasonably be drawn that it is more probable than not that Mr Sleeman's exclusion was on the grounds of his age. There is no fact which positively suggests it likely that such exclusion occurred on that basis. The inference is not a reasonable one given the fact that one of Mr Sleeman's companions, who was not excluded, Mr Everingham, was around 57 years of age. There was also uncontested evidence as to the range of ages of patrons regularly attending the nightclub including two who had celebrated their 70th birthdays there. Mr Sleeman and Mr Everingham had been admitted to the nightclub only one year previously.

158 Nor is the inference which is sought to be drawn a matter of strict logical deduction from the known facts. In the Tribunal's view it does not follow that exclusion from a club for perceived intoxication when a person is sober establishes as a matter of logic that the real reason was because of age. The inference does not follow as certainly or probably true as opposed to being a mere possibility. Mr Everingham and Mr Clifford conceded that the contention that Mr Sleeman was excluded by reason of age was speculation.

159 On the evidence, the Tribunal finds that there is a more probable or innocent explanation available, namely that the doorman considered Mr Sleeman to be intoxicated and argumentative and that these were reasons for his exclusion in line with the authority provided by s.77(2) of the Liquor Act.

160 Accordingly, the Tribunal finds that Mr Sleeman has failed to prove to the requisite standard that one of the "real", "genuine" or "true" reasons for his exclusion from the nightclub was on the grounds of his age including the characteristics which he has identified and his claim must fail. It follows that the Tribunal is not satisfied that the hypothetical comparator would have been treated more favourably in the same circumstances.

The defences

161 In its submissions the Respondent relied upon a defence for discriminatory conduct under statutory authority pursuant to s.54 of the ADA. Having regard to the findings which have been made it is not necessary to determine whether the defence is made out. That being said, the Tribunal is not satisfied that the defence would have been made out on the facts of this case.

162 S.54 provides:

"(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:

(a) any other Act, whether passed before or after this Act,

(b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act."

163 As the Respondent has submitted, the requirement of "necessity" has been strictly and narrowly construed. To make out the defence the obligations imposed by the statutory instrument must be both "mandatory and specific": Waters v. The Public Transport Corporation (1991) 173 CLR 349 (High Court) at [413] per: McHugh J see also at [369] per: Mason CJ and Gaudron J (regarding an equivalent provision in Victorian legislation): Clinch v. Commissioner of Police (1984) EOC 92-115 (NSW). The Respondent needs to show that it had "no option" but to act as it did in order to comply with the statutory obligation: Butcher v. Commissioner of Police, New South Wales [2010] NSWADT 169 at [148] (successfully appealed on the facts but not the law in Commissioner of Police, NSW Police Force v. Butcher [2011] NSWADTAP 9 at [29] and [37]).

164 The Tribunal was not directed to any provision of the Liquor Act or other legislation the compliance with which would render it necessary to exclude Mr Sleeman on the grounds of age. The authority referred to: Lavery v. Commissioner of Fire Brigades [2003] NSWADT 93 at [79] posited the scenario in which a shopkeeper was alleged to have contravened s.49ZYN(1) of the ADA by refusing to supply liquor and cigarettes to a person under the age of 18. The Tribunal expressly identified obligations imposed by the Liquor Act (s.114) as the type of mandatory and specific obligations which satisfied the necessity test in s.54(1)(a) to provide a defence to age discrimination under the ADA. However, in the Tribunal's view in the present case, refusing Mr Sleeman entry on the grounds of age would not be necessary for the Respondent to comply with any obligation under the Liquor Act and the defence would fail.

165 The Respondent also says that the age discrimination if established was not authorised and relies upon the defence under s.53(1) of the ADA. In light of the findings which have been made it is not necessary to consider this defence.

166 The Respondent lastly relies on a defence created by s.53(3) of the ADA saying that it is not liable for the conduct of its agent because it took all reasonable steps to prevent him breaching the ADA. Again, in light of the findings which have been made it is not necessary to consider this defence.

Costs

167 The Respondent has sought its costs of the proceedings. It has submitted that there was no basis for the Applicant to conclude that Mr Urwin (or the alleged unknown other person) discriminated against the Applicant by reason of his age. It says that this was mere speculation on his part. The Respondent submits that Mr Sleeman's complaint was "vexatious" and had "no tenable basis in fact or law" amounting to "special circumstances" [sic] within the meaning of s.88 of the ADT Act. The Respondent relies upon PC v. University of New South Wales (GD) (No 2) [2006] NSWADTAP 54.

168 S.88 of the ADT Act was amended by the Administrative Decisions Tribunal Amendment Act, 2008 in January 2009. The requirement of "special circumstances" had been replaced by one of "fairness".

169 S. 88 provides:

"(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis."

170 In Department of Attorney General and Justice v Schoeman [2012] NSWADTAP 31 the Appeal Panel found at [19] that the following observations, taken from the Court of Appeal's decision in AT v Commissioner of Police (NSW) [2010] NSWCA 131 at [21] and [33], are relevant to exercising its discretion on costs:

"(1) the general principle is that each party should bear its own costs;

(2) the Tribunal may only award costs if it is "satisfied" that it is "fair" to do so;

(3) the exception to the general principle represents a "relatively low threshold" for an applicant seeking an order;

(4) determining whether the exception applies involves both findings of primary fact and the exercise of an evaluative judgment;

(5) when exercising the evaluative judgment, relevant considerations include the nature of the jurisdiction and the objects of the ADT Act."

171 The Appeal Panel, differently constituted, also made the following observations about costs orders in the Equal Opportunity Division in Rae v Commissioner of Police, New South Wales Police Force (GD) [2011] NSWADTAP 30 at [6] to [9]:

"6 It has been most unusual for costs orders, especially full costs orders, to be made against a complainant in the equal opportunity jurisdiction.

7 The equal opportunity jurisdiction serves the important social purpose of providing a facility for the resolution of grievances over perceived unlawful discrimination against individuals on the basis of irrelevant personal characteristics or attributes, such as gender, race and marital status. The making of costs orders may discourage people from airing their grievances. The primary rule reinforces these public interest objectives. The exception is not lightly to be applied.

8 This Tribunal's costs rule is similar to the costs rule that applies in the Victorian Civil and Administrative Tribunal (VCAT): see Victorian Civil and Administrative Tribunal Act 1998 , s 109. Morris J, then President of VCAT, sitting in that Tribunal's Planning List, noted in Buttigieg v Melton Shire Council & Ors [2006] VCAT 1059:

It is true that the tribunal has the power to make an order as to costs if it is fair to do so, but the propensity with which the tribunal decides that 'it is fair to do so' will influence the manner in which a particular jurisdiction operates. Hence it is necessary to have regard, not only to the immediate circumstances of the present case, but also the implications generally on cases before the Planning and Environment List of the tribunal.

9 In my view, these considerations apply with additional force to a human rights jurisdiction of the kind that the Equal Opportunity Division is.'

See also the lengthy discussion in ACE v State of NSW (TAFE Commission and DET) (No 3) [2011] NSWADT 154 at [39] - [49].

172 There is no evidence that the Respondent was unnecessarily disadvantaged by the conduct of the Applicant in the proceedings within the meaning of s.88(1A)(a)(i)-(v). There was no failure to comply with an order or direction of the Tribunal or otherwise with the Act, the regulations, or the rules of the Tribunal. Nor is there evidence of disadvantage to the Respondent by the Applicant asking for an adjournment as a result of such a failure or by causing an adjournment or by attempting to deceive another party or the Tribunal.

"Vexatious"

173 The question of whether a claim is vexatious was considered in Wilde v. University of Sydney (EOD) [2004] NSWADTAP 32 at [10]. The Appeal Panel said -

"We agree with the Tribunal's comments in the costs decision relating to the primary proceedings that vexatious conduct involves bringing proceedings with the intention of harassing the other party or with the intention of wasting time or causing delay ( Wilde v University of Sydney (No.2) [2004] NSWADT 16 [27]). In our view the appellant has not brought this appeal with such an intention"

174 In Attorney-General (Victoria) v Wentworth (1988) 14 NSWLR 481 Roden J considered, among other things, the circumstances in which a litigant could be regarded as having instituted vexatious proceedings for the purposes of the then s 84 of the Supreme Court Act 1970 . It was held at 491 that:

"It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:

1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.

2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless."

175 In Bevnol Constructions & Developments Pty Ltd v De Simone (Domestic Building) [2009] VCAT 546, when interpreting the equivalent provision in the Victorian Civil and Administrative Tribunal Act 1998 Ross J held at [27] that:

"[A] proceeding may be said to have been conducted in a vexatious way 'if it is conducted in a way productive of serious and unjustified trouble or harassment, or conduct which is seriously and unfairly burdensome, prejudicial or damaging.'"

(See also Haddad v Chief Commissioner of State Revenue (No 2) [2011] NSWADT 215 at [14].)

176 The Tribunal does not doubt that Mr Sleeman felt aggrieved by being excluded from the nightclub for being intoxicated at a time when he says he was sober. However, there is no evidence that the proceedings were instituted with the intention of annoying or embarrassing the Respondent or brought for a collateral purpose rather than having the Tribunal adjudicate on the issues. Nor for the reasons which follow can the Tribunal be satisfied that the proceedings are so obviously untenable or manifestly groundless as to be utterly hopeless. The Tribunal is not satisfied that the complaint was vexatious within the meaning of s.88(1A)(a)(vi).

'No tenable basis in fact or law'

177 In Finch v Samios [2012] NSWADT 16 at [27] the Tribunal considered the meaning of "untenable". Citing Profilio v. Coogee Bay Village Pty Ltd (No4) [2011] NSWADT 64 at [42] and [43], the Tribunal referred to the authorities on the operation of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) considered in Dennis Corporation Pty Ltd v. Casey CC (Red.) [2008] VCAT 691 at [17] - [19]. In that case, the Victorian Tribunal considered that the word "untenable" is stronger than "weak" and that in the context of the legislation "means something like so weak as to be unarguable, rather than merely weak". These comments were endorsed by the Victorian Tribunal in Winky Pop v. Hobsons Bay CC [2008] VCAT 1512 at [7].

178 Additionally, the failure to make out a complaint does not, of itself, render it untenable. In Linnell v Seachem Australia Pty Ltd (No 2) [2011] NSWADT 178] the Tribunal stated that:

"33. ... At the hearing of the substantive matter the Tribunal did find that the Applicant had not established her case of sexual harassment, given that the Tribunal was not satisfied that the Applicant had established that the comment was made, having regard to the requisite standard of proof, on the evidence presented by the Applicant. This finding does not equate to a finding that the Applicant's case had no tenable basis in fact, rather the Tribunal had no basis for preferring the evidence of the Applicant over the evidence of the Respondent on the central issue of whether the words alleged were used."

179 The Tribunal cannot conclude that Mr Sleeman's claim had no tenable basis in fact or law. While causation was said to be based upon inference in the Tribunal's view the case was not unarguable.

180 Accordingly, having regard to the authorities referred to and relevant considerations including the nature of the jurisdiction and the objects of the ADT Act the Tribunal is not satisfied that it is fair to award costs to the Respondent in this case and the application for costs is refused.

Orders

181 The complaint is dismissed.

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Decision last updated: 24 October 2013