Brala v Cabramatta Golf Club Limited [2020] NSWCATAD 217 | Case summary

NCAT Administrative and Equal Opportunity|2020-06-24

Background facts

According to Mr Brala, on joining the Club in 2007 he immediately noticed a sense of arrogance and hostility towards members of "lower social standing". He alleges that he was subject to "scrutiny and verbal abuse" about his "character, social representation and golf play".
In addition, he alleges that he was:

continually hounded about being a "slow player";
subjected to racial slurs and vilified for his religious beliefs;
verbally abused hundreds of times;
denied access to the course and the member competition rounds;
subjected to a sense of hostility by Club staff and on one occasion falsely accused of engaging in sexual activities;
subjected to character assassination;
repeatedly spoken to by three members of the Board in a vile and verbally abusive manner.

In a letter to the President responding to the Complaint, the Club's General Manager stated that Mr Brala: 1. elected to join the Club as a social member. Under the Club's constitution, social members have no golfing rights nor are they entitled to attend or vote at the Club's AGM. Only "Full Playing Members" and "Life members" are entitled to use the Club's golf course and participate in AGMs; 2. not only attended the Club's 2018 AGM but attempted to raise matters at that meeting. Mr Brala took offence when told he was "out of order" and to sit at the back of the room and be quiet. A heated discussion ensued between Mr Brala and members at the AGM. Mr Brala was asked to leave the Club's premises. The following day his membership was suspended; 3. had never disclosed to the Board that he had a disability. Members of the Board were not aware that he had a disability.

Is the conduct about which Mr Brala complains unlawful discrimination on the ground of disability?

In determining whether leave should be granted for the Complaint to proceed, it is necessary to first consider whether the conduct about which Mr Brala complains is capable of falling within a substantive provision of the Act. This is because the Act does not make unlawful all discriminatory conduct. As Basten JA explained in Commissioner of Police v Mohamed [2009] NSWCA 432 at [23], the underlying structure of the Act is "not to prohibit all forms of discriminatory conduct, even where such conduct is antithetical to internationally recognised human rights and fundamental freedoms, but to identify specific grounds of discrimination, which are prohibited in specific areas of social activity".
The conduct the subject of the Complaint falls into two categories: 1. the Club's decision to terminate Mr Brala's membership; 2. the alleged failure of the Board to deal with Mr Brala's claimed complaints of "bullying and harassment" by other Club members.
The decision to terminate Mr Brala's membership appears capable of falling within s 49O(2)(b) of the Act ("depriving the person of membership"). The alleged failure of the Board to deal with Mr Brala's complaints about the claimed bullying and harassment by other members appears capable of falling within s 49O(2)(c) ("subjecting the person to any other detriment") and s 49M(b) ("refusing to provide … services").

Cast as a complaint of "direct discrimination" is the complaint lacking in substance?

In determining whether to grant leave for the Complaint to proceed, I will consider whether there is some material which, if accepted, might establish the elements of a claim of unlawful discrimination on the ground of disability. In undertaking that task, I have not restricted my consideration to the material provided by Mr Brala to the Board but have also taken into account the material provided by Mr Brala to NCAT together with verbal claims he made during the leave hearings.
Cast as a complaint of direct discrimination (s 49B(1)(a)) Mr Brala must establish that: 1. he has, had or is thought to have or had a disability; 2. in terminating his membership / failing to consider his complaint(s), the Club treated him less favourably than it treated, or would have treated, a member without his disability, or the disability he is thought to have, or to have had in the past, in the same circumstances, or in circumstances which were not materially different (less favourable treatment); 3. one of the reasons for any less favourable treatment was Mr Brala's disability, a characteristic that generally appertains to, or is generally imputed to, persons with Mr Brala's disability (causation).

The decision to terminate Mr Brala's membership

In these proceedings, Mr Brala claims that he has, and told several members of the Club that he has, depression.
Mr Brala does not dispute that he raised several issues at the Club's 2018 AGM and was "ruled out of order". Nor does he dispute as claimed by the Club that as a social member he was not entitled to attend or participate in the Club's AGM. In addition, he concedes that he was involved in a "heated verbal exchange" at the 2018 AGM and was asked to leave.
At the leave hearing on 24 June 2020, Mr Brala conceded that the Club would probably deny any social member the opportunity to ventilate issues at an AGM. He also appeared to concede that the reason his membership of the Club was terminated was because he continued to speak at the AGM after being told he was not entitled to do so. He was unable to point to any material which might support a finding that a social member without his disability who attempted, as he had, to raise issues at an AGM would have been permitted to do so. Nor did he point to material which might support a finding that one of the reasons the Board terminated his membership of the Club was because he had, or was thought to have, depression.
On the available material it is not reasonably arguable that one of the reasons the Board terminated Mr Brala's membership was because he had or was thought to have a disability. Nor is it reasonably arguable that he was subject to less favourable treatment.

The Board's alleged failure to deal with Mr Brala's complaints

At the leave hearing on 24 June 2020, I raised with Mr Brala that it was unclear whether the complaints he made to the Board, fell within the period of the Complaint, that is, 1 January 2017 to 31 August 2017. In the Complaint, Mr Brala refers to the period about which he complains as being "2007 to date".
I invited Mr Brala to provide material in support of his claim that during the period of the Complaint as determined by the President, he made numerous complaints to the Board about his treatment by staff and other members during the period of the Complaint. In submissions made in answer to that invitation, Mr Brala identified two complaints that fell within that period.

First complaint

According to Mr Brala, he made his "first complaint" to the Club about two months before the 2018 AGM. In that complaint he alleged that a member had been hostile towards him calling him, "the specialist". He said after making that complaint the member's father warned him not to get his son "into trouble". In addition, Mr Brala claims that the father "tried to argue his point that [his son] would call me "the specialist" due to having endearment for me".
After investigating that complaint, the Club took no further action, concluding that the reference to Mr Brala being a "specialist", was a reference to Mr Brala's perception of his golfing ability and the unsolicited golfing advice he gave to other members.
In my view, it is not reasonably arguable that the Club refused to provide Mr Brala a service (s 49M(b)). The Club accepted and investigated the complaint.
Assuming that by failing to take action in relation to that complaint, the Club subjected Mr Brala to a detriment" (s 49O(2)(c)), in my view it is not reasonably arguable that one of the reasons for that treatment was that Mr Brala had or was thought to have a disability. Relevantly, Mr Brala does not suggest that by using the term "the specialist", the member about whom he complained was referring to his disability. Nor does he claim that he told the Club that it was the reason for the comment. The substance of the complaint is that Mr Brala was dissatisfied with the outcome of the Board's investigation. The available material does not support the inference being drawn that one of the reasons the Club failed to act was because Mr Brala had or was thought to have a disability.

Second complaint

Sometime before the 2018 AGM, Mr Brala requested and was given permission by the Club's General Manager to use the Club's practice putting and chipping green. According to Mr Brala, four weeks later "disgruntled club members had a problem with me using the practice area". He claims that when approached on the green by the Club captain and asked whether he was considering joining the Club as a full playing member, he stated he could not give a "definite answer". Mr Brala claimed that a few days later he was advised by Club staff that he was no longer permitted to use the green. He then made a complaint to the Board. He claims that at a meeting with three representatives of the Board, apparently held shortly before the AGM, he sought to "re-establish a [past] complaint" about another member. He claims that the Board's representatives "took no action" because of "incompetence". In addition, Mr Brala claims that at that meeting he told the representatives that he had a disability and took medication.
The Club agrees that Mr Brala met with representatives of the Board shortly before the AGM. According to the Club, that meeting was initiated by the Club Captain and CEO because Mr Brala had "reacted negatively" to being told he could no longer use the practice putting area. The Club claims that permission to use that area was withdrawn after members complained that Mr Brala was giving unsolicited advice about golfing and monopolising the green.
The Club disputes that at that meeting Mr Brala sought to reventilate the earlier complaint. According to the Club, that complaint was made in May 2016 and involved a disagreement about Mr Brala's "pace of play". The Club claimed that it found no evidence of the allegation made by Mr Brala in these proceedings, of the member attempting to "brutally bludgeon" Mr Brala.
For current purposes I accept Mr Brala's account of that meeting. Mr Brala does not allege that the 2016 incident related to his disability or to the member's perception of his disability. Nor does he allege that the reason the directors failed to revisit the 2016 complaint was because he had or was thought to have a disability. This part of the Complaint is misconceived.

Cast as a complaint of "indirect discrimination", is the complaint lacking in substance?

For the conduct about which Mr Brala has complained, to succeed as an claim of indirect discrimination under s 49B(1) (b) of the Act, Mr Brala must establish that: 1. The Club imposed a requirement or condition; and 2. He was unable to comply with that requirement or condition; and 3. A substantially higher proportion of members without his disability comply or are able to comply with that requirement or condition; and 4. The requirement or condition was not reasonable having regard to the circumstances of the case.
Mr Brala has not identified a requirement or condition imposed by the Club with which he was unable to comply. Nor does the available material disclose any relevant requirement or condition. In my view, it is not reasonably arguable that cast as indirect discrimination, the Complaint could be established.

Conclusion

Taking Mr Brala's allegations at their highest I am not persuaded that the Complaint is reasonably arguable. It is both misconceived and lacking substance. It would not be fair and just to permit the Complaint to proceed.

Order 1. Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).

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: 03 September 2020

Statutory framework and principles governing the grant of leave

A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation, the President is satisfied that the complaint is lacking in substance, he or she may decline the complaint, in whole or in part: ss 92(1)(a)(i) and 92(1)(a)(ii) of the Act. A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland & Anor (1981) 2 NSWLR 104 at 107; Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [45]; Alchin v Rail Corporation NSW [2012] NSWADT 142 (Alchin) at [26].
Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.
Where a complaint is referred to the Tribunal at the request of the complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

Brala v Cabramatta Golf Club Limited

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