Chatwin v Bodyline Spa and Sauna Pty Ltd

Relevant legislation

1. Discrimination on the grounds of disability is a contravention of the Anti-Discrimination Act 1977. Sections 49A and 49B provide: "49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability - (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 49B What constitutes discrimination on the ground of disability (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator - (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability - (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability."
2. Section 44(1) and (2) of the Civil and Administrative Tribunal Act 2013 permits the Tribunal to order that a party be joined: "44 Parties and intervention (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has - (a) been improperly or unnecessarily joined, or (b) ceased to be a proper or necessary party."
3. The complaint of discrimination was based on the refusal to provide goods and services. Section 49M of the Anti-Discrimination Act provides: "49M Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability - (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services"

The applicant's submissions

1. The applicant submitted that his complaint named the person who had discriminated against the applicant as "Jason Wayne Halligan", described as owner of the business "Bodyline Spa and Sauna". He made a mistake in spelling Mr Harrigan's name as he believed his name was Halligan. The applicant also states that it was the Anti-Discrimination Board which first named the respondent as Bodyline Spa and Sauna Pty Ltd, when it wrote to the respondent on 21 June 2019, and that the Board repeated that error in later documents.
2. The applicant claims that Mr Harrigan and PJBL were responsible for some of the discrimination allegedly experienced by him through the maintaining of the ban which was instituted in 2017 despite requests made by his solicitor. He also claims that Mr Harrigan personally refused him entry on several occasions in 2017, filmed him and made derogatory comments about him. He accepts now that in 2017 Mr Harrigan was an employee, not the owner of the business referred to.
3. The applicant submits that Mr Harrigan was responsible for the discrimination, that there was a pattern of behaviour since July 2017 which continued after he attempted to be admitted as a customer of the business at those premises from July 2018. He submits that PJBL has traded at the premises since 11 May 2018 and aided and abetted Mr Harrigan in his discriminatory conduct contrary to s 52 of the Act; or alternatively is liable as Mr Harrigan's principal or employer under s 53 of the Act.

Mr Harrigan and PJBL Pty Ltd's evidence and submissions

1. There are no submissions made for the named respondent. Mr Harrigan and PJBL Pty Ltd (PJBL) submit that the respondent as named does not exist as a legal entity, as there has never been a corporate body named "Bodyline Spa and Sauna Pty Ltd."
2. In a statement, Mr Harrigan said that Bodyline Spa and Sauna previously existed as a business name but the business name has been cancelled. This was supported by copies of ASIC searches supplied. Mr Harrigan stated that he believes Mr Danesi operated the business under that name, possibly as a sole trader. Mr Harrigan was an employee working in the business.
3. Mr Harrigan's evidence was that he is one of two directors of PJBL. The ASIC company extract annexed to his statement support this statement and show that PJBL was registered on 11 May 2018. A copy of the front page of the lease of the premises was also in evidence which showed the lease of 4-10 Taylor St Darlinghurst was transferred from Lauvan Pty Ltd to PJBL Pty Ltd with Jason Harrigan and Peter Xuereb as guarantors on 14 May 2018. As at 1 September 2018, according to an ASIC company extract of that date, PJBL's registered address was 10 Taylor Street Darlinghurst. Mr Harrigan provided ASIC records showing PJBL registered the business name "Bodyline Sydney" on 3 April 2019. He stated that the business "Bodyline Sydney" operated at the same premises since its opening in May 2019.
4. Mr Harrigan and PJBL submit that: 1. The power of joinder conferred by s 44(1) should be read in conformity with the power of removal so that a party who is a proper or necessary party ought to be joined in the proceedings. 2. The Tribunal should consider whether the parties' interests would be affected by the decision. If they were, then they would ordinarily be considered a proper or necessary party. They rely on the decision of the Court of Appeal in Commissioner, NSW Police Force v Fine [2014] 87 NSWLR 1; [2014] NSWCA 327 which has been relied on by the Tribunal more recently in a case concerning joinder in anti-discrimination proceedings (Goldsteen v TCI Bondi Junction Pty Ltd [2018] NSWCATAD 135). 3. Neither Mr Harrigan or PJBL's interests could be affected by the decision because none of them are in anyway involved with the Respondent.
5. They also made a submission regarding additional factors which determine whether decision makers should be joined in administrative review proceedings and the nature of the review conducted by the Tribunal. These submissions are not relevant because: 1. the facts in this case, unlike those in Fine, do not concern a statutory decision; and 2. these proceedings do not involve an administrative review under s 30 of the Civil and Administrative Tribunal Act.

Principles to be applied

1. In Fine, the Court of Appeal held: "39 A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings. … 40 The question whether a party is a "proper" party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere inter-meddler would neither be a necessary nor proper party."
2. As noted above, the proceedings do not involve a "decision". The issue in the proceedings is whether certain conduct contravened the Anti-Discrimination Act. To substantiate his allegation of discrimination on the ground of disability, Mr Chatwin must establish that some or all of the alleged conduct occurred and that is contravened the Act. That is, that he was discriminated against because he had, or was thought to have, a disability.
3. Mr Chatwin claims he was subject to both direct and indirect discrimination.
4. Direct discrimination occurs where a 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.
5. Indirect discrimination occurs when the perpetrator requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
6. It was said by Principal Member Britton in Goldsteen that the power of joinder conferred by s 44(1) is to be read in conformity with the power to remove a person who is a party to proceedings, so that a party who is a "proper or necessary party" ought to be joined in the proceedings: Fine at [38].
7. In Hanratty -v- Kempsey Shire Council [2002] NSWADT 232 the former Administrative Decisions Tribunal in a decision under the (repealed) Administrative Decisions Tribunal Act 1997, determined that the factors to be taken into account when exercising its discretion to join a party included: 1. whether any prejudice might result to any party or to the person sought to be joined from the granting or the refusing of application; 2. whether the Tribunal will, if the person is joined, have jurisdiction to deal with the case against them; and 3. where the person is to be joined as a respondent, whether the complainant's case against that person is not strongly arguable on a prima facie basis.
8. These principles were followed by the Tribunal in Goldsteen, although the test applied by Principal Member Britton in that case was whether there was material which would support a finding that the conduct complained of had occurred in contravention of the Act, rather than whether the prima facie case was "strongly arguable". As Hanratty was decided under the former legislation, I have preferred the test in Goldsteen.
9. It was also held in Hanratty that there must also be a clear link between the person sought to be joined and the complaint referred to the Tribunal from the Board. However this principle was rejected by the Appeal Panel in Roach v James [2013] NSWADTAP 1 and therefore I have not applied it.

Findings of fact

1. Based on the evidence before the Tribunal I am satisfied of the following: 1. There is no evidence of an entity under the name Bodyline Spa and Sauna Pty Ltd operating from the premises. There was a business under the registered business name Bodyline Spa and Sauna which operated at the premises until about 14 May 2018. Mr Harrigan was an employee at that business. 2. PJBL was established on 11 May 2018 and took over the lease of the premises on 14 May 2018. While Mr Halligan claims Bodyline Spa and Sauna "opened" in May 2019, based on the available evidence I am satisfied that PJBL operated in some fashion from the premises from May 2018. The premises was the location of its registered office from at least 1 September 2018.

Consideration - removal of Bodyline Spa and Sauna Pty Ltd

1. As I am satisfied that an entity with the name Bodyline Spa and Sauna Pty Ltd did not exist or operate at the premises at any time during the period of the complaint, if at all, it follows that it has been improperly joined and should be removed.

Consideration - joinder of Mr Harrigan and PJBL

1. The conduct of Mr Harrigan which is contained in the complaint and is alleged to have contravened the Act consists of: 1. Mr Harrigan's telephone conversation with Mr Chatwin's solicitor in July 2018 in which the solicitor asked if Mr Chatwin could return as a customer. There is no evidence of what Mr Harrigan is alleged to have said; 2. Mr Harrigan's failure to respond to later emails, correspondence and phone messages sent to Mr Harrigan making the same request.
2. It is claimed by the applicant that this conduct of Mr Harrigan continued his earlier conduct towards the applicant in 2017. It is also claimed that PJBL either aided and abetted his conduct or is liable as his principal or employer.
3. As stated in my earlier decision granting the applicant leave to proceed (Chatwin v Bodyline Spa and Sauna Pty Ltd [2020] NSWCATAD 69) an earlier contravention of the Act may be continued and that continuance can be the subject of a complaint (Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140; Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26).
4. The applicant faces two obstacles, however. Firstly the conduct of Mr Harrigan in 2017 which was claimed to have been continued by him as a director of PJBL is outside the period of the complaint. The Tribunal has no jurisdiction, therefore, to determine whether that conduct contravened the Act. Such a finding would be necessary before the Tribunal could determine if the contravention had been continued.
5. Secondly, and even if the Tribunal did have that jurisdiction, the alleged conduct complained of in the proceedings is the continued refusal from July 2018 by Mr Harrigan to provide Mr Chatwin with goods and/or services offered by his business Bodyline Sydney contrary to s 49M. I am not persuaded that Mr Harrigan's conduct from July 2018 can be construed as continuing the earlier conduct. The earlier conduct related to goods and services provided by Mr Danesi and/or Bodyline Spa and Sauna. The 2018 conduct related to goods and services provided by Mr Harrigan and/or PJBL. Mr Harrigan was an employee in 2017; in 2018 he was the business owner.
6. Moreover, the evidence before the Tribunal of Mr Harrigan's conduct within the period of the complaint is extremely scant and would not, in my view, support a finding of discrimination on the alleged ground where continued conduct cannot be relied on. It amounts to a telephone conversation the content of which is unknown and a failure to respond to correspondence. The letter from Mr Harrigan to the Anti-Discrimination Board, which is relied on by the applicant, refers to "the current ban". This suggests that there was a ban but the letter itself is outside the period of the complaint and does not disclose any material which would support a finding of discrimination.
7. In my view Mr Harrigan and PJBL do have an interest in the proceedings. They operate the premises and business which the applicant wishes to access. The phone and written correspondence was engaged in by the applicant's solicitor with Mr Harrigan as a representative of PJBL.
8. No submissions were made as to prejudice. If the parties were joined, the Tribunal would have jurisdiction subject to what I have said above.
9. The final question is whether the Tribunal should exercise its discretion to join Mr Harrigan and PJBL Pty Ltd as parties. If they are not joined as parties then there will be no respondent. Ordinarily this would make them "necessary" parties. However for the reasons stated above, it would not be proper to make them parties as there is no material to show that a contravention of the Act could be established, Therefore I do not consider the discretion should be exercised in this case.
10. The consequence of my decision is that the proceedings lack a respondent and consequently are subject to dismissal for lacking substance under s 92(1)(a)(i) of the Anti-Discrimination Act. In the interests of justice, the decision will not take effect until 28 days after its publication to allow the applicant to seek to join another respondent or seek leave to amend his complaint.

Orders 1. The respondent Bodyline Spa and Sauna Pty Ltd is removed as a party to the proceedings. 2. The application to join Jason Harrigan and PJBL Pty Ltd as respondents is refused. 3. Orders 1 and 2 will not take effect until 28 days from the date of publication of this decision. 4. At the expiration of 28 days from the date of publication of the decision, the proceedings will be listed for the applicant to show cause why they should not be dismissed under s92(1)(a)(i) of the Anti-Discrimination Act.

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

Amendments 13 August 2020 - Category corrected to "Procedural and other rulings" 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: 13 August 2020