Clonda v NSW Squash Limited; Clonda v Squash Australia Limited

NCAT Administrative and Equal Opportunity|2020-09-17|Before: Dr J

REASONS FOR DECISION

This was an interlocutory application seeking orders, pursuant to s102 of the Anti-Discrimination Act 1977 ('the Act'), that the Tribunal dismiss complaints of victimisation made under s50 of the Act.
In these Reasons for Decision, the Tribunal has referred to the three Respondents to Ms Clonda's complaints to Anti-Discrimination NSW (ADNSW) as the Applicants, as this is their application.

Statutory framework

Section 50 of the Act provides as follows: 50 Victimisation (1) It is unlawful for a person ("the discriminator") to subject another person ( "the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has-- (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

Background

These proceedings, matters 2019/299993 and 2019/300080, were commenced by the Complainant alleging discrimination on the grounds of homosexuality and victimisation under the Anti-Discrimination Act, 1977 ( hereafter 'the Act').
Proceedings 2019/299993 were brought against Ms Dawn Moggach, (who will be referred to as 'Ms Moggach" or 'the First Applicant ' as she is the First Applicant in relation to this application) alleging victimisation as proscribed by s50 of the Anti-Discrimination Act, 1977 (referred to in these Reasons for Decision as 'the Act') and against NSW Squash Ltd ('the Second Applicant') alleging discrimination on the grounds of homosexuality and victimisation.
By letter of 16 June 2020 Ms Clonda (who will be referred to in these Reasons for Decision as 'Ms Clonda' or 'The Respondent' or as she is the Respondent to this application) notified the Tribunal that the claim of discrimination on the ground of homosexuality was withdrawn. The claims of victimisation were maintained.
Proceedings numbered 2019/300080 name Squash Australia Ltd as a Respondent (in these Reasons for Decision referred to as 'the Third Applicant ') and alleges victimisation as proscribed by s50 of the Act. It is convenient to refer to Squash Australia Ltd as 'the Third Applicant '), even though the proceedings against Squash Australia have a separate file number.
A mediation of both sets of proceedings took place on 25 November 2019. The Tribunal ruled on 30 April 2020 in Clonda v NSW Squash Ltd; Clonda w Squash Australia Ltd [2020] NSWCATAD 116 that the matters had not been settled and thus continued.
This was an application brought by each of the three Applicants to dismiss the claims of victimisation pursuant to s102 of the Act.
Ms Clonda describes herself in her statement filed on 14 July 2020, relied on by her in this application, as follows: "I have been a recognised State National and International ranked squash player, squash coach, squash facility manager and administrator in Australia for over 30 years. I was: a. Manager of the Thornleigh NSW Squash and Fitness Centre, 6 Duffy Ave, Thornleigh, the facility owned by Squash NSW in 2005 and 2006. b. Lessee of the premises at 6 Duffy Ave, Thornleigh, from 2007 to 2012 and I conducted business through Thornleigh Squash Centre…;. c. Director of NSW Squash Ltd from 2005 to 2009 d. CEO of NSW Squash Ltd from 2006 to 2009."
It was accepted by the parties that shortly after Ms Clonda ceased be CEO of NSW Squash, sexually explicit emails were sent to her by the then President of Squash NSW. As a result, Ms Clonda commenced proceedings in December 2010 in the ADNSW against Squash NSW alleging sexual harassment, sex discrimination and victimisation. Those proceedings were settled in February 2012.
In May 2011 Ms Clonda brought proceedings against Squash Australia for unlawful victimisation. Those proceedings were settled in October 2013.
Those two sets of proceedings will be referred to as "the ADNSW Complaints".
On 25 May 2012, in Casquash Pty Ltd v NSW Squash Ltd (No 2) [2012] NSWSC 522, ("the Supreme Court proceedings") Justice Pembroke found that a lease for Squash premises entered into by Casquash Pty Ltd ( of which the Applicant was the sole director and shareholder), was procured through dishonest conduct by Ms Clonda and her brother, a solicitor. He ruled that the lease should be rectified. He also found that Squash NSW was justified in re-entering the premises and dismissed the Summons by Casquash Pty Ltd with costs.

Summary of claims of victimisation

The claims of victimisation alleged in these proceedings against Ms Moggach are as follows: 1. Ms Moggach, the First Applicant, was a Board Member of Squash NSW from 2010 to 2019 and was its president in the period 2014 - 2019. 2. Ms Moggach was allegedly aware of the ADNSW Complaints through her involvement as a respondent and through direct knowledge as a Member of the Board of NSW Squash. 3. Ms Moggach allegedly authorised the sending of a letter dated 10 September 2014 from Squash NSW to Squash Australia under the hand of Mr Garry Somerville, CEO of Squash NSW 9 "the 2014 letter") that was very critical of the Applicant and recommended against engaging the Applicant for "any position" within Squash Australia. 4. On 7 September 2017 Ms Moggach was asked by Ms Fiona Young, Executive Director of Squash & Racquetball Victoria, for a reference in relation to the Applicant, who had applied for a position as Competitions Administrator. She provided a reference on the same day on a confidential basis ("the 7 September email"). The contents of the email came to the attention of the Applicant. The contents of the emailed reference were negative in their assessment of Ms Clonda and warned against her engagement by Squash & Racquetball Victoria.
The claims of victimisation alleged in these proceedings against the Second Applicant are as follows: 1. The Second Applicant, NSW Squash Ltd, was allegedly aware of the ADNSW Complaints through involvement as a respondent to those Complaints and through direct knowledge of Members of the Board of NSW Squash, including Ms Moggach. 2. The 7 September email was sent by the President of the Second Applicant; 3. The Second Applicant failed to reply to a letter from a solicitor acting for the Applicant regarding the 7 September 2017 email. 4. Ms Clonda made a complaint to the Second Applicant that was not acted upon due to the ADNSW Complaints.
The claims of victimisation alleged in these proceedings against the Third Applicant, Squash Australia, are as follows: 1. The Third Applicant was allegedly aware of the ADNSW Complaints through involvement as a respondent to those Complaints and through direct knowledge of Members of its Board and its CEO, Mr Richard Vaughan. 2. On a number of occasions, when Ms Clonda could have been considered for positions (paid and unpaid) with the Third Applicant, she was not appropriately considered for those positions, was not contacted or 'put forward' for them, which prevented her from obtaining a positon with the Third Applicant, thus suffering a detriment. 3. Ms Clonda made a complaint to the Third Applicant about failure to properly consider her for positions. That complaint was not acted upon in a reasonable manner.
By the time this application was made under s102 of the Act, the Applicant had filed Points of Claim on 27 January 2020 and an Affidavit dated 13 July 2020, with extensive annexures. No Defences had been filed by the Applicants and no evidence from Ms Moggach had been filed.
The onus of proving a victimisation pursuant to s50 of the Act lies on the Applicant on the balance of probabilities, but the onus of proving that a complaint should be summarily dismissed under s102 lies on the party so asserting (Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [53].
In determining a s102 application, the Tribunal is required to "take the evidence at its highest", which the Appeal Panel of NCAT has found means, as the learned author Odgers states: "assessing probative value at the highest extent to which the evidence could rationally be regarded as affecting the assessment of the probability of the existence of a fact in issue".

Responses by Applicants on s102 application

The First Applicant relied on its letter to the Tribunal of 11 August 2020 and the affidavit in support by Mr Barnes. The First Applicant also adopted most of the written submissions of the Second and made oral submissions at the hearing. The Second and Third Applicants provided written submissions and made oral submissions at the hearing. They relied on witness statements of Richard Vaughan, Joanne Brodie, Timothy Frampton and Stewart Carson and the decision in the Supreme Court proceedings.
In summary, the Applicants claim that: 1. The 2014 letter falls outside the period accepted by the ADNSW as being the period of the Complaint in these proceedings to the ADNSW, namely 1 September 2017 - 8 February 2019. At most, the Tribunal could only regard it as background to the Complaint. In any event, it refers to the Supreme Court proceedings, not the ADNSW Complaints. 2. The 7 September 2017 email referred not to the ADNSW proceedings, but to Supreme Court proceedings. 3. There was no available evidence that any failure (if any) to investigate the complaints made by the Applicant to the Second and Third Applicants was due to, because, or by reason of, the ADNSW Complaints. 4. The Complaints, Points of Claim and Statement of the Applicant alleged victimisation "at large" rather than victimisation arising from the ADNSW proceedings. There was no "causal link" between the ADNSW Complaints and the conduct complained of and no evidentiary basis for the Tribunal to infer that the "real, true or genuine reason" for the conduct complained of was the ADNSW Complaints (rather than the Supreme Court proceedings or other reasons).

The 2014 Letter

The Tribunal accepts the argument of the Applicants that the letter of 2014 from the Second Respondent does not form part of the present proceedings, except as background, as it falls outside the period accepted by the ADNSW for the Complaint. There has been no application by the Applicant to amend the period of the claim.

The 2017 Email

Both of the ADNSW Complaints were settled by consent, the first by Deed of Release dated 17 October 2012, executed by the Applicant, the Second Respondent and Mr Robert Du Bois. That Deed of Release includes Clause 6, a Non-Disparagement Clause, which states that all parties to it agree "not to make any negative, derogatory or defamatory comments in relation to the Proceedings." The term "proceedings" is defined to refer to the proceedings in the ADT No 111122 and the Deed makes no reference to the Supreme Court proceedings. The Respondents argue that the comments of Ms Moggach in the 21017 email did not refer to the ADNSW Complaints and therefore did not breach the terms of the Deed of Release.
As one of the key claims of Ms Clonda is that the 2017 email refers in part to the ADBNSW Complaints, it is necessary to analyse the email more fully.
A perusal of the 2017 email shows that, on its face, it appears to refer to the Supreme Court proceedings. Comments such as "Comes over very enthusiastic but it doesn't take long to discover she's not always honest. This is not just my opinion, it was stated by the court judge" and "not honest or trustworthy" appear to relate to the Supreme Court proceedings rather than the ADNSW Complaints.
In the course of his judgment in the Supreme Court proceedings concerning a lease by, Pembroke J made a number of adverse comments about the conduct of the Applicant and her brother, including that "their conduct was not merely sharp, it was dishonest", their evidence was "unsatisfactory and implausible", that there was "wilful and obdurate conduct on behalf of the plaintiff" resulting in a relationship between the parties that was "poisonous, acrimonious and unsalvageable" and "the plaintiff's breaches (of the lease) were deliberate and recalcitrant".
Whilst the Supreme Court proceedings brought into question the honesty of the Applicant, the ADNSW Complaints did not concern probity, honesty or alleged dishonesty. They concerned two emails that were sent to Ms Clonda that were alleged to constitute sex discrimination and sexual harassment.
The Tribunal has reviewed and considered the 2017 email in the context of the Points of Claim of Ms Clonda , her statement and the evidence of the other parties and finds that the 2017 email is referable at least in part to the Supreme Court proceedings.
Even if the 2017 email was referable in part to the Supreme Court proceedings, is it arguable that one of the reasons for it was the ADNSW Complaints and therefore that the Applicant was victimised (within the terms of the Act) by that email?
Ms Clonda pointed to the part in the 2017 email regarding the Applicant allegedly swearing (which allegation is denied by her) and says that the question of swearing was not raised in the Supreme Court proceedings. She stated that there was an affidavit in the ADNSW proceedings from Mr Lind, then President of NSW Squash, regarding swearing or bad language, that did not form part of the Supreme Court proceedings but formed part of the ADNSW proceedings. If so, this could ground a possible inference that Ms Moggach's 2017 email refers to the ADNSW proceedings, as well as the Supreme Court proceedings.
The Tribunal notes that in the President's Report of the ADNSW, at page 149, the Applicant referred to this. An attachment to her Statement filed on 14 July 2020, at p99, is said to be an excerpt from the affidavit of Mr Lind at paragraphs 18 and 19 that refers to Ms Clonda allegedly using bad language.
No Points of Defence or affidavit material have been filed by the First Applicant and therefore there is no affidavit available from Ms Moggach. The Respondents are not obliged to file an affidavit by Ms Moggach and not obliged to disprove any part of a Complaint. Nevertheless, whether her 2017 email arises in part from the ADNSW Complaints is a matter of fact that would fall to be determined at a hearing and which is clearly contested.
There is High Court authority for the proposition that as soon as it appears that there is a "real question", either of fact or law, and the rights of parties depend upon it, it is not appropriate for the Court to intervene summarily: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.
In NSW, Margan v University of Technology, Sydney [2003] NSWADTAP 65 the Appeal Panel considered the predecessor to s102, s111, at [9] - [15]. In particular, at [11] the Appeal Panel stated: " Summary dismissal is not appropriate where there is a serious question of fact to be determined( Spellson v George (1992) 26 NSWLR 666) or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross-examination may lead to the proof of factual matters about which the plaintiff has not direct evidence (Wickstead v Browne (1992) 30 NSWLR 1)."
Taking into account the evidence of Ms Clonda at its highest, at this stage of the litigation there is at least one real question of fact, namely whether the ADNSW Complaints were one of the reasons for the contents of the 2017 email of Ms Moggach.

Alleged Failure by Squash NSW to offer any position to Ms Clonda

The claim made by Ms Clonda against Squash NSW is that it took into account the ADNSW Complaints in failing to offer the Applicant any opportunities in squash over a period of some years since settlement of the ADBHNSW Complaints. This is denied by the Second Applicant. The Applicant seeks that an inference be drawn from the conduct of the Second Respondent that one of the reasons it has failed to offer her any opportunities is the ADNSW Complaints. The material upon which she primarily relies is the fact that she has not been offered any such opportunities, despite the skills and abilities of the Applicant that were acknowledged prior to both the ADNSW Complaints and the Supreme Court proceedings.
As stated in Nicholls and Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37] the Appeal Panel stated: "The Tribunal should have asked itself whether the fact that Nicholls had done one of the things listed in s50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment."
Thus, the conduct proscribed by s50 may be due to more than one reason, it does not need to be the sole reason, so long as it is a 'substantial or operative' factor in causing the alleged detriment. (See also Rees, Rice and Allen Australian Anti-Discrimination Law, The Federation Press, 2nd edition, 2014 at pp 714 - 724).
There are real questions of fact to be determined, namely whether there has been a failure to offer her opportunities and whether one of the reasons for that is the ADNSW Complaints.
The basis, at law, upon which inferences may be drawn, were conveniently summarised in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] as follows: i. a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts ii. an inference must be reasonably drawn on the basis of the primary facts iii. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference. iv. a fact relied on as the basis of an inference need not be proved to the requisite standard of proof v. it is not enough that the inference is a mere possibility: it must be one of "probable connection" vi. the inference must be a logical one, and not supposition vii. an inference cannot be made where more probable and innocent explanations are available on the evidence.
In this case, there may be a basis for an inference to be drawn from the evidence that if there was a failure to offer opportunities to the applicant, that it was due, at least in part, to the ADNSW Complaints brought by Ms Clonda against the then President of Squash NSW and Squash NSW itself, noting that the first ADNSW Complaint was the set of proceedings commenced first in time. Whether the available evidence would permit an inference to be drawn is a mixed question of fact and law.

Alleged Failure by Squash Australia to offer any position to the Applicant

In settlement of the second set of ADBNSW proceedings, against Squash Australia, by Deed of Settlement dated 4 October 2013, Squash Australia agreed, without any admissions, to remove from its website any reference to the Supreme Court proceedings and to publish a statement that included the following Statement ( 'the Statement'): "Squash Australia is proud to acknowledge the substantial contributions of Carin at the local, state, national and international level. Carin has been an energetic ambassador for the sport in the last 39 years and is a significant part of the rich history of the sport in Australia. Carin's qualities and experience make her an excellent role model both as coach and player, and she has contributed significantly to the sport in the capacities of player, coach and administrator. Carin..looks forward to working with Squash Australia in our joint efforts to promote the sport of Squash in Australia".
Thus, it appears from the above Statement that Ms Clonda was highly regarded by the Third Applicant , as stated by John William Lee, who executed the Settlement Deed on behalf of Squash Australia.
Ms Clonda argues that she has been passed over on a number of occasions for positions for which she was suited in terms of her skills and experience. The Third Applicant was prepared to remove references to the Supreme Court proceedings from its website in 2013. This leaves room for a question as to whether, if Ms Clonda has not been offered available opportunities, why that has occurred.
The Third Applicant relied on several witness statements in providing explanations for this failure to engage Ms Clonda for any interviews or to let her know about positions for which she may apply. Ms Clonda orally rebutted some of the explanations at the hearing and had provided material to the ADNSW regarding this matter. This suggests that if the matter went to hearing, she may raise an arguable case in relation to failure to offer her even one interview for a position, paid or unpaid, since 2013.
Counsel for the Third Applicant argued, whilst denying that Ms Clonda had suffered a detriment due to the ADNSW Complaints, that the Supreme Court findings would be sufficient reason not to involve Ms Clonda in the sport, even if such conduct has been found to have occurred. However the terms of the Settlement Deed executed on 4 October 2013 suggest that the Supreme Court findings were not seen by the Third Applicant, at least at that time, as important matters to which attention should be drawn and the Third Applicant stated at the time of settlement of those proceedings that Squash Australia were committed to recognising the expertise of Ms Clonda.
This evidence is relevant to assessing whether there is a prospect of any inference being drawn that the ADNSW Complaints have been a reason, or substantial reason, for any failure to offer the Applicant any position, if indeed there has been such a failure (which is denied).

Alleged failure by Squash NSW and Squash Australia to investigate the Complaints of the Applicant made under the Member Protection Policy

Ms Clonda has made Complaints under the Member Protection Policies ('MPP') of the Second and Third Applicants, alleging that they have each failed to offer her opportunities in squash due, at least in part, to the ADNSW Complaints. Each has sought specific examples of such failures and provided some reasons (other than the ADNSW Complaints) why the MPP Complaints have not been progressed.
A review of the flow of emails between the parties suggests that each of the Second and Third Applicant has treated the Applicant in a cordial fashion but has not progressed her MPP Complaints over a significant period. She seeks that an inference be drawn that at least one of the reasons for this is the ADNSW Complaints.
A reading of the emails between the parties indicates, wariness or failure to follow up the original MPP Complaint in dealing with the MPP Complaints that invites a question as to the real reason or reasons that the MPP Complaints have not been dealt with over a significant period of time. There are issues of fact that remain to be determined before any inference could be drawn that a reason or substantial reason for the way in which the Complaints were dealt with was the ADBNSW Complaints.
Whether opportunities suited to the abilities, skills and experience of Ms Clonda were available at particular points in time is a matter within the knowledge of the respondents and about which summonses for production may elucidate further information, one way or the other. This is a matter that the Tribunal may take into account in considering an application under s102 of the Act: Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [12] - [13]. It is a relevant matter to consider in this case.

Conclusion

For the above reasons, the Tribunal determines that it is not appropriate to dismiss the claims of victimisation brought by the Applicant in either or both sets of proceedings. The Tribunal is not satisfied that the requirements of s102 have been met in this case.

Order 1. The application to dismiss these proceedings under section 102 of the Anti-Discrimination Act is dismisssed 2. Ms Clonda's application is to be listed by the Registrar of the Tribunal for Directions.

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 09 October 2020 - Members corrected 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: 09 October 2020

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Judgment (14 paragraphs)

Cases Cited (9)

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