Bassili v The Star Pty Ltd

NCAT Administrative and Equal Opportunity|2016-07-19|Before: Schmidt J

The question

Mr Bassili lodged a complaint of disability discrimination against The Star Pty Ltd when they refused to revoke an order excluding him from the casino. Mr Bassili says that one of the reasons The Star refused to revoke the order was because he has paranoid schizophrenia with secondary depression. The Star says that they refused to revoke the order because Mr Bassili "was experiencing difficulties with gambling, and out of a genuine concern for his welfare."
The Acting President of the Anti-Discrimination Board declined the complaint as lacking in substance. The question in these proceedings is whether it is fair and just for Mr Bassili's complaint to go ahead: Anti-Discrimination Act 1977 (NSW), s 96(1). The onus is on Mr Bassili to satisfy the Tribunal that the complaint should proceed to a hearing.
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:◦ (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"; (2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; (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 (4) noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.
I have decided to refuse leave.

Acting President's reasons for declining complaint

The Acting President of the Anti-Discrimination Board declined Mr Bassili's complaint of disability discrimination as lacking in substance. the reasons she gave were that: Mr Bassili contends is that the reason for the continued exclusion from the casino is his psychiatric disorder and, on that basis, the decision of The Star to exclude him is discriminatory. The Star's Responsible Gambling Committee, however, maintains that concerns for the complainant's welfare and "behaviour which suggested Mr Bassili may have been experiencing difficulties with gambling" underpinned the decision to allow the order to stand. The respondent claims that the fact that Mr Bassili also suffers from a psychiatric disorder is tangential to the decision-making process. While it is understandable that Mr Bassili has linked his psychiatric illness to the behaviour described by The Star is indicative of a gambling problem, The Star's ability to fulfil its statutory obligations under the regime prescribed by the Casino Control Act should be unhindered. The gambling related behaviour exhibited by the complainant, although likely influenced by psychological circumstances, was the subject of the order. The recent assessment of Mr Bassili by BetCare would suggest that those behaviours persist to the extent that allowing the complainant access to the casino is currently contraindicated. Therefore, on the basis of information provided, Mr Bassili has not been able to substantiate the allegation that he has been treated less favourably on the ground of his disability in the same or similar circumstances as a person without his disability.

Consideration of the question

Contrary to Mr Bassili's submission whether The Star afforded him procedural fairness is not relevant. The Tribunal's role is to determine whether it is fair and just in all the circumstances for the complaint to proceed. That depends on the likelihood that Mr Bassili will be able to substantiate his complaint at a hearing. The Tribunal needs to assess the merits of the complaint on the basis of all the material available at the hearing. I do not need to determine whether the process itself was fair.
There is no dispute that paranoid schizophrenia with secondary depression is a disability within the meaning of that term in s 4 and s 49A of the Anti-Discrimination Act. By continuing to refuse Mr Bassili permission to enter or remain in the casino, The Star has refused to provide him with a service: Anti-Discrimination Act, s 49M(1)(a). It follows that I do not accept The Star's submission or the Acting President's conclusion, that the complaint "has the potential to conflict with the specific statutory regime prescribed by the Casino Control Act and the manner in which exclusion orders can be imposed or revoked." There is no such defence or exception in the Anti-Discrimination Act. If the conduct comes within the definition of direct or indirect discrimination in s 49B of the Anti-Discrimination Act, and is not subject to any of the defences or exceptions in the legislation, it is unlawful.
Mr Bassili mentioned that he was relying on both direct and indirect discrimination. As The Star has not imposed any requirement or condition on patrons generally, with which Mr Bassili is unable to comply, the case is not one that fits within the definition of indirect discrimination in s 49B(1)(b). I have assessed the merits of the complaint on the basis of the definition of direct discrimination in s 49B(1)(a): (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

Differential treatment

The first component of direct disability discrimination is the "differential treatment" test. The treatment afforded to Mr Bassili must be compared with the treatment that would have been afforded to a person who does not have his disability in the same or similar circumstances. In the absence of an actual person whose treatment can be compared with the treatment given to Mr Bassili, the Tribunal would have to predict how The Star would have treated a hypothetical person in a comparable situation.
When making the comparison, "all of the objective features which surround the actual or intended treatment of the disabled person" must be identified: Purvis v New South Wales (2003) 217 CLR 92 at 160-161. The main objective feature in dispute in this case is the extent to which Mr Bassili is a problem gambler. If a person with the same level of difficulty with gambling that Mr Bassili has, but who does not have the same disabilities, applied for an exclusion order to be revoked, would The Star have revoked it?
Mr Bassili's case, as I understand it, is that he has developed sufficient insight over the last 10 years to be capable of gambling responsibly. Contrary to the Acting Deputy President's observation, there is no evidence in these proceedings that Mr Bassili's gambling related behaviour is influenced by his "psychological circumstances". Dr Parmegiani's provided evidence after the Acting President had referred the complaint, that Mr Bassili's desire to gamble is not related to his "well controlled psychotic illness" and that he does not fulfil the diagnostic criteria for a Gambling Disorder, as specified by the DSM-5 psychiatric classification system. Neither of those opinions contradicts Ms Alexander's view that Mr Bassili appears to be a problem gambler. Although The Star did not provide written reasons, the evidence suggests that its decision was based on Ms Alexander's report. There is no evidence to suggest that had The Star received the same report in relation to a person without Mr Bassili's disabilities, it would have made a different decision.

Causation

The second element of direct discrimination is causation. For Mr Bassili's complaint to succeed, at least one of the reasons for the decision not to revoke the exclusion order must have been his 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: Anti-Discrimination Act, s 4A and s 48B(1) and (2).
The Star did not articulate any reason for the decision until after Mr Bassili complained. The absence of written reasons may have ignited Mr Bassili's suspicion that one of the reasons for the decision was his disability. In hindsight The Star offered the reason that Mr Bassili "was experiencing difficulties with gambling, and . . . they were genuinely concerned for his welfare." Because The Star did not state that one of the reasons was Mr Bassili's disability, he would have to establish a causal link by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant: "... (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."
There is no evidence which supports the inference that at least one reason for The Star's decision was Mr Bassili's disability. In particular, there is no evidence, apart from Mr Bassili's assertion, which contradicts Ms Alexander's opinion that he appears to be a problem gambler. For Mr Bassili's complaint to have some chance of success, he would need to provide evidence to support his assertion that he has developed sufficient insight to be capable of gambling responsibly. Dr Parmegiani's evidence does not go that far. If The Star refused to revoke the exclusion order in the face of such evidence, an inference may be capable of being drawn that a reason for that decision was Mr Bassili's disability.
In my view, on balance, it is highly unlikely that a Tribunal hearing this matter would draw an inference that Mr Bassili's disability was one of the reasons for The Star's decision. In those circumstances it would not be fair or just for the complaint to proceed.

Order The applicant's application for leave for the complaint of disability discrimination to proceed is 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: 27 July 2016

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