1. This matter has a lengthy history before the Tribunal, with several directions hearings and mentions. The respondent has not engaged with the Tribunal, and the steps taken to identify and serve her are set out below. Eventually, the Tribunal decided to determine the matter ex parte.
2. The applicant was initially represented by Canberra Community Law (CCL), but at later attendances he represented himself, with the assistance of a support person.
3. The applicant filed a witness statement and gave oral evidence. He impressed me as an honest witness.
4. The applicant also relied upon the written statements of his friend, Mr O, a taxi driver, and his carer Ms S. As the hearing was ex parte, neither of the applicant's witnesses were cross-examined and the applicant's evidence, and that of his two witnesses, was uncontested.

1. My findings of fact, based on the uncontested evidence, are as follows.
2. The applicant was a regular client of Touch of Class (the brothel) prior to an incident on 7 November 2018 (the incident). The incident is the subject of these proceedings.
3. On the night of the incident, the applicant was driven to the brothel by his friend, Mr O. He arrived at 11.00pm. Mr O dropped him off and left to pursue other work.
4. At the brothel the applicant met with a man called Malcolm. Malcolm took him into a room with two female sex workers, one of whom he knew as 'Missy', but the other of whom was unknown to him (the second sex worker). The applicant did not know the name of the second sex worker, but described her as having black hair, brown eyes, and speaking with an accent that he thought may be Russian. Both Missy and the second sex worker offered to provide sexual services to the applicant jointly for $500. He said that he only had only $200, so they agreed that one of them would provide the service. The applicant then requested Missy and paid $200 to Malcolm, consistent with what he usually paid.
5. The applicant went into another room. The second sex worker came in and said words to the effect that he would need to have a shower and he would need to pay her to have one. He replied that he did not usually pay to have a shower.
6. The second sex worker showered and helped the applicant take his clothes off. She put a condom on him, and then told him he would need to pay $500 for sex. The applicant told her that he had already paid $200 to Malcolm and only wanted to have sex with one worker. The second sex worker then said words to the effect that she would tell her boss that he had tried to take the condom off to have sex with her. She also said that she did not want to see him again and left the room.
7. The applicant was left alone, naked. He called out to Malcolm. Malcolm came into the room and the applicant tried to explain what had happened, but Malcolm would not listen. The applicant asked for his money back. Malcolm refused. The applicant then tried to call Mr O, but could not contact him. Malcolm left and locked the door to the outside of the brothel. This prevented the applicant from leaving.
8. By this time the applicant was frightened and crying. A third female sex worker (the third worker) took him into another room and tried to "calm him down". The applicant was still undressed and the third worker did not help him put his clothes on. He attempted to dress himself, which was very difficult because of his disabilities. The third worker gave him the phone number for "Mel", the manager of the brothel, to speak to about the incident. She then left and locked the applicant in the room. She said words to the effect that she would let him out when he calmed down. The applicant kept calling Mr O on his phone and was eventually able to contact him. He then yelled to Malcolm that his "mate was on his way".
9. Ten minutes before Mr O arrived, the third worker arrived to try to calm the applicant down and Malcolm pushed him out the door, in his wheelchair, and locked the door behind him.
10. Mr O's spoke to the applicant on his phone at about 2.15am. The applicant was crying and said words to the effect that the people at the brothel had locked him up and then pushed him out into the carpark. He arrived at about 2:25am and found the applicant in the carpark, about five metres from the brothel. It was very cold, and he was crying. The applicant repeated to Mr O that the people there had locked him up and he hadn't had the service he wanted.

1. The following morning, 8 November 2018, the applicant told his support worker, Ms S, about the incident and asked for her assistance. Ms S phoned the number for 'Mel'. She left a message. A man called back to say he was not the manager.
2. A few days later the applicant and Ms S attended the brothel premises. They spoke to a man who gave them another number for 'Mel'. Ms S called the number and left messages on the voicemail service, but no one returned her calls.
3. Sometime later, the applicant contacted Canberra Community Law (CCL).

1. On 22 November 2018 CCL, on behalf of the applicant, wrote to "the Manager, A Touch of Class" at Unit 7, 108 Gladstone Street Fyshwick (the Unit 7 address) and requested a refund of $200. They received no reply.
2. The Unit 7 address is the address listed in the White Pages. However, as set out below, "7" is not the correct unit number.
3. On 21 December 2018 CCL contacted the Office of Fair Trading (OFT) for assistance. OFT was unable to assist. The response from an officer at OFT stated, in part:

While I appreciate [the applicant's] distress in this matter, in the absence of a written quote or invoice and without any evidence supporting his claim that he was quoted $200.00, it is unlikely that he has a case to pursue a refund against the business.

1. The OFT recommended that the complainant contacted the police or contact the ACT Human Rights Commission (ACT HRC).

1. On 31 January 2019 the applicant lodged a complaint with the ACT HRC. He named the respondent as "a Touch of Class", operating at the Unit 7 address. The HRC attempted to serve the complaint on "the manager" of the brothel at the Unit 7 address and at a gmail address, the provenance of which I do not know (the gmail address). The HRC received no response from the respondent.
2. On 15 August 2019, at the applicant's request, the HRC referred the matter to the Tribunal in accordance with section 53A of the Human Rights Commission Act 2005 (HRC Act). A copy of the referral was sent to the respondent at the Unit 7 address and the gmail address.

1. On 16 August 2019 the Tribunal attempted to serve the referral and a listing notice on the Touch of Class at the gmail address. The Tribunal received no response.
2. An ASIC business name search obtained on 2 September 2019 indicated that both "the Touch of Class" and "Touch of Class" were cancelled business names in the ACT.
3. On 4 September, at the request of the applicant, the Tribunal issued a subpoena to the ACT Commissioner for Fair Trading seeking:

All documents including registration and annual notices which identify the owner or owners of the commercial brothel or escort agency trading as 'A Touch of Class' at Unit 7/108 Gladstone St Fyshwick during the period from 7 November 2018 to date.

1. The Tribunal attempted to serve the listing notice for the return of subpoena and the next directions hearing, this time by express post to the Unit 7 address, as well as by email. Notwithstanding that the unit number was incorrect, the envelope has not been returned to the Tribunal.
2. Also, on 4 September 2019 CCL, on behalf of the applicant, wrote to 'The Manager, a Touch of Class" at the Unit 7 address, again advising them of the claim and the next hearing date and enclosing a copy of the subpoena. CCL received no reply.
3. The subpoena was returnable on 10 September 2019. The Commissioner wrote to the Tribunal and advised that they held no documents to produce and the subpoena was discharged. The respondent did not attend the return of subpoena.
4. A further directions hearing was listed for 23 September 2019 before a differently constituted Tribunal. The respondent did not attend. Evidence provided at that directions hearing was as follows:
   • (a) A historical company search showed that the Touch of Class business name was registered to "Dalmatian Pride Pty Ltd" (Dalmation Pride), the sole director and secretary of which was Melissa Jayne Smith, of an address in Ngunnawal (the Ngunnawal address).
   • (b) Dalmation Pride was deregistered pursuant to section 601AB of the Corporations Act 2001 on 29 November 2015.
   • (c) Records available online from ABN Lookup showed that Dalmation Pride traded under the business names "Touch of Class" and "Exotic Studio".
   • (d) A Canberra Times article from 28 April 2012 stated that "Exotic Studio" was owned and operated by "Dalmation Pty Ltd", the director of which was Melissa Barac.
5. During this directions hearing, a question arose as to whether the applicant may have been mistaken as to the brothel he attended. Accordingly, the applicant and Ms S thereafter attended 108 Gladstone Street and took a series of photographs of the premises, including photographs of the three businesses that operate from it. Ms S attached the photographs to her witness statement. The photographs do not show a unit number on the Touch of Class premises. However, there appear to be only three businesses operating from the building. The unit to the left is clearly marked "unit 1". A google search reveals that the third business advertises its address as "Unit 3, 108 Gladstone Street, Fyshwick."
6. The applicant confirmed that the premises with the Touch of Class sign was the premises where the incident occurred. The unit appears to be unit 2.
7. The applicant's evidence is that while at the premises to take the photographs, the applicant witnessed a woman who he knew as "Mel" leave the premises. He had met Mel when she operated another brothel that he had attended prior to Touch of Class. The applicant looked at the Facebook page for Melissa Barac and believes she is the same person as pictured on that Facebook page.
8. At the directions hearing on 21 October 2019 the Tribunal made an order that the respondent be corrected to "Melissa Barac, also known as Melissa Smith." The Tribunal also ordered that the applicant personally serve the respondent with a copy of the orders of that date, the complaint and other documents in the proceedings.
9. The applicant engaged a process server to personally serve the documents. On 8 November 2019 a process server (the first process server) attended the Ngunnawal address and attempted to serve the documents. Her affidavit evidence is as follows:

At the time of attendance I had a conversation with a male child to the effect of the following:

I asked the male child: Is Melissa home?" The male child replied: "Mum is not here and dad is asleep."

On 9 November 2019 at 4:18pm I re attended the said address and had a conversation with a male to the effect of the following:

I asked: "Is Melissa Barac home?" The male replied: "No, she isn't home, I am not sure when she will be back."

I asked the male: "Can I please leave my card with you and can you please ask Melissa to call me urgently?" The male replied: "Yes, what is this about?"

I replied: "It is regarding a personal matter, when Melissa calls me, I can discuss it with her."

1. The first process server then gave the man a card with her name and mobile number. The man took the card. No one contacted her back.
2. On 12 November 2019 another process server attempted to serve Ms Barac at 'A Touch of Class' at 108 Gladstone Street Fyshwick. Her affidavit states:

I had a conversation with a female to the effect of the following;

I asked the female: Is Melissa Barac here? Her name may be Melissa Smith. I understand this is where she works?" The female replied: "I am just the cleaner, I don't know anyone by that name. We don't use our legal names here anyway."

I asked: "Will you leave a message for Melissa to call me?" The female replied: "Yes, I will be happy to pass that on". I left a calling card with the female.

1. On 13 November 2019 the first process server again attempted to serve Ms Smith at 'Touch of Class' at 108 Gladstone Street. Her affidavit states:

At the time of attendance, a male, female and I had a conversation to the effect of the following:

I asked the male: "Is Melissa Barac home?" The male replied: "Come in." I entered the address and the male locked the front door of the address and locked me in the address.

The male walked to another room and turned to me and said: "Can you come in here?" I walked to the door way and a female was sitting on the couch.

I asked the female: "Is Melissa Barac here?" The female replied: "No, she isn't in today".

1. As such, the documents were not personally served on the respondent. However, I am satisfied that the persons present at the brothel and the Ngunnawal address were aware that an attempt to serve documents had been made.
2. Listing notices continued to be sent to the Gmail address and Unit 7 address. The Tribunal received no response and no mail was returned. The respondent did not attend the directions hearing on 25 November 2019 nor the directions hearing on 20 January 2020.
3. At the directions hearing on 20 January 2020, the applicant advised the Tribunal that the business operating as 'Touch of Class' may have changed hands, although he was not sure when. The Tribunal adjourned the proceedings again and directed the applicant to serve a copy of the directions made that day on Melissa Smith, trading as Touch of Class, by way of Facebook messenger. The directions the applicant was requested to serve included a note that the respondent could contact the Tribunal for a full copy of the proceedings.
4. A further business name search, conducted by the Tribunal following this directions hearing, confirms that the ACT registration of the business name 'Touch of Class' remains cancelled, although there is no information before the Tribunal as to when this happened. The homepage for 'Touch of Class' states that the business address is 108 Gladstone Street. No unit number is specified.
5. The Sex Work Act 1992 (ACT) requires the registration of all commercial brothels and escort agencies. The register is publicly available through the Access Canberra website. The Tribunal undertook a search of the register, and the brothel appears to be registered as operating from Unit 2 of 108 Gladstone Street in Fyshwick. This address is consistent with the business being located between Units 1 and 3 of 108 Gladstone Street Fyshwick, which is apparent from a photograph provided in evidence before the Tribunal, and the photographs available on google maps. An error in the address of the business in the White Pages likely explains why the subpoena to the OFT returned no information.
6. Notably, the registrar states that the brothel's "annual return due date" was 30 September 2017. It is not clear if it has filed any annual returns from this date, but none are recorded.
7. At the hearing on 10 February 2020 the Tribunal visually sited a record on the applicant's phone confirming that he had sent the directions to the 'A Touch of Class' by way of Facebook messenger. The applicant received what could best be described as a formulaic response.
8. The Tribunal conducted the hearing ex parte, reserved its decision on the matter, and noted on the orders that:

(a) the applicant is seeking a refund of $200 and compensation of at least $1,000;

(b) The Tribunal is satisfied that notice of these proceedings has been served on the respondent on Touch of Class; and

(c) The respondent has to date not participated in proceedings.

1. Following the hearing, the Tribunal caused a copy of those orders to be served on "Melissa Smith, C/- A Touch of Class" at Unit 2, 108 Gladstone Street Fyshwick and on Melissa Smith at the Ngunnawal address, as well as by the previously used Gmail address.
2. On this occasion, the Tribunal received a response from the Gmail address. The response stated that the email address did not belong to Ms Smith but provided an alternative email address (the alternative Gmail address). On 11 March 2020 a copy of the orders of 10 February 2020 were set to the alternative Gmail address. No further response was received from the respondent.
3. On 4 March 2020, the Tribunal, on its own initiative, issued a subpoena on the Commissioner, seeking "all documents, including registration documents and annual notices, relating to the commercial brothel or escort agency trading as 'A Touch of Class' or 'Touch of Class' at 108 Gladstone Street, Fyshwick, during the period from 7 November 2018 to date."
4. On 19 March 2020, the Commissioner returned documents in partial compliance with the subpoena. The ACT Government Solicitor attended to represent the Commissioner and asserted litigation privilege over some of the documents. However, amongst those documents that were produced on subpoena was a letter from the Chief Minister, Treasury and Economic Development Directorate to Dalmation Pride Pty Ltd. The letter was addressed to Ms Barac at the Ngunnawal address. The letter is regarding a failure to file an annual return under the Sex Work Act 1992.

1. Having regard to the above-mentioned facts, I am satisfied, on the balance of probabilities, that:
   • (a) the company Dalmation Pride Pty Ltd was trading as a Touch of Class until it was cancelled from 2 September 2016;
   • (b) Ms Melissa Jayne Smith, also known as Melissa Barac (henceforth in these reasons I will refer to her as Ms Barac), was the sole director of Dalmation Pride Pty Ltd;
   • (c) at the time of the incident, and at all relevant times, a business known as a 'a Touch of Class' was operating from Unit 2, 108 Gladstone Street in Fyshwick;
   • (d) that business known as 'a Touch of Class' continues to operate from the same premises;
   • (e) that business is and was at all relevant times a registered brothel;
   • (f) at the time of the incident, Ms Barac was operating the business;
   • (g) the applicant has been unable to personally serve Ms Barac, but she nonetheless ought reasonably to have been aware of these proceedings; and
   • (h) Ms Barac has chosen not to attend the Tribunal or respond to these proceedings.

1. The first question for the Tribunal is whether the application has been properly served.
2. The tribunal must observe natural justice and procedural fairness[1], and this requires that the respondent be aware of the claim against her and be given an opportunity to respond to it. A failure to serve goes to the root the proper procedure of litigation[2].
3. The ACT Civil and Administrative Tribunal Procedural Directions 2009 (No 1) (the directions) that were in effect at the time of this application provided that applications could be served in accordance with rules 6405, 6410 to 6412, and 6430 to 6438 of the Court Procedure Rules 2006. Procedural direction 28 also provided the Tribunal power to make orders in relation to the service of documents including approving alternative ways to serve documents.
4. Section 247 of the Legislation Act 2001 sets out how a document may be served on an individual.
5. Rule 6405 of the Court Procedure Rules deals with personal service as follows:

1. To serve a document personally on a person, the person serving the document must give the person:
   • (a) if the original of the document is sealed - a sealed copy of the document; or
   • (b) in any other case - a stamped copy of the document.
2. However, if the person does not accept the copy, the person serving the document may serve it by putting the copy down in the person's presence and telling the person in general terms what it is.
3. Also, if the person serving the document is prevented from approaching the person by violence or threat of violence, the person serving the document may serve it by putting the copy down as near as practicable to, but in the sight of, the person being served.
4. For this rule, it is not necessary to show that the original of the document was served.
5. Neither the first nor second process server left a copy of the document in accordance with this provision. I am not satisfied that the documents have been personally served, or that the orders of 23 September 2019 have been complied with. However, I am prepared to discharge those orders. The purpose of service is to notify the respondent of the commencement of proceedings.[3] I am satisfied that the respondent has received notification of these proceedings by reason of the documents having been served by mail on her home address on, at the latest, 10 February 2020, when the applicant served the application by Facebook Messenger. Even if that were not successful, the respondent was made aware of the proceedings when served with the orders of 10 February 2020, by post to her residential address. Although the latter did not reach her prior to the commencement of proceedings, it was served prior to this Tribunal making its determination and she was given an opportunity to participate.
6. I was satisfied that the respondent has been provided with notification of the hearing, had been given ample opportunity to participate, and has chosen not to attend. However, to avoid doubt, I will make an order dispensing with the need for service.

1. Under the Discrimination Act, discrimination occurs when a person discriminates either directly or indirectly against someone else on the ground of a protected attribute.[4]
2. The relevant protected attributes are set out in section 7 of the Discrimination Act. One of the protected attributes is 'disability'.[5] Disability is defined in section 5AA of the Act to include, relevantly:
   • (a) total or partial loss of a bodily or mental function; or
   • (b) total or partial loss of a part of the body;

(e) the malfunction, malformation or disfigurement of a part of the body;

1. 'Direct' and 'indirect' discrimination are defined in section 8 of the Discrimination Act. A person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes. A person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has one or more protected attributes.[6]
2. Although it is not entirely clear, it appears that the applicant is making a claim of direct discrimination - that is, the applicant claims that he was treated unfavourably because of his disability.
3. The applicant alleges that the discrimination occurred in relation to the provision of services. Section 20 of the Discrimination Act provides that it is unlawful to discriminate in the provision of goods, services and facilities as follows:

_It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person - _

(a) by refusing to provide those goods or services or make those facilities available to the other person; or

(b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or

(c) in the way in which the provider provides those goods or services or makes those facilities available to the other person. (emphasis not in original).

1. 'Service' is defined in the Dictionary to the Discrimination Act to include services "relating to entertainment, recreation or refreshment ... and ... services of any profession, trade or business."

1. The applicant has multiple physical disabilities that have resulted in the partial loss of sight and hearing, limited mobility and limited movements in his upper limbs. He clearly has the protected attribute of 'disability' within the meaning of section 5AA and 7(e) of the Discrimination Act. His disabilities place him in an especially vulnerable position.

1. There could be no dispute that the business operating as Touch of Class provides a 'service' within the meaning of that term in the Discrimination Act. The issue is whether, as a matter of fact, it was the respondent who provided those services. For the reasons set out above, I am satisfied on the balance of probabilities that Melissa Smith is the operator of the Touch of Class brothel.

Was the applicant subjected to unfavourable treatment?

1. The Discrimination Act does not include any definition of 'unfavourable' or 'unfavourable treatment'. However, the meaning of the term has been the subject of consideration by the Courts and Tribunal.
2. In Prezzi, Patricia Anne and Discrimination Commissioner[7] (affirmed in Edgley v Federal Capital Press of Australia Pty Ltd [8]) President Curtis of the then-Discrimination Tribunal said at [22]:

The ACT Discrimination Act ... does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.

1. In Cooley and the Australian National University [2007] ACTDT 2, Deputy President Peedom said at [44]:

A detriment involves some loss, or damage or injury (see Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 and Sivananthan v Commissioner of Police [2001] NSW ADT 44 at 41) and is broad enough to cover any disadvantage, as long as it is real and not illusory. Whether a detriment has been suffered is to be determined objectively and not by the subjective perceptions of either the complainant or the respondent. (see Ellis v Mount Scorpus Memorial College [1996] VADT 16 (29 March 1996)).

1. In other words, favourable treatment includes acts or omissions which result in some loss, damage or injury, to the applicant.
2. The test for unfavourable treatment in the Discrimination Act does not call for a 'comparison' between how the applicant was treated and how a person without his disabilities would have been treated. Therefore, I do not need to consider whether a person without the applicant's disabilities would have been treated in a similar matter.
3. The alleged unfavourable treatment in the case was took several forms:
   • (a) An employee or representative of the respondent, being the second sex worker, attempted to coerce the applicant into paying for a service he did not want and/or demanded more money from the applicant where he had already paid for a service.
   • (b) An employee or agent of the respondent, Malcolm, refused to give his money back despite the service not being provided.
   • (c) Employees or agents of the respondent, being Malcolm and the third sex worker imprisoned the applicant in a room for some time.
   • (d) Employees or agents of the respondent wheeled the applicant into the carpark and abandoned him there.
   • (e) The respondent has refused to respond to the applicant's and his carer's phone calls or messages and has refused to negotiate with or speak to him.
4. I accept that applicant's evidence that each of these incidents was capable of causing him fear, stress and inconvenience, and in fact did so, and I have no hesitation to find that they amount to unfavourable treatment in the sense of being a detriment involves some loss, or damage or injury. The question is whether any of these incidents of unfavourable treatment were because of the applicant's disability.

Was the unfavourable treatment because of his disability?

1. The test of whether treatment is 'because' of a person's protected attribute requires an analysis of the reason for the action.
2. Presidential Member Spender sets out the test for causation in the case of Kovac v Australian Croatian Club Limited [2014] ACAT 41 as:

Whether the applicant's [protected attribute] is, either alone or in combination with other reasons, a real, genuine and not insubstantial reason for the unfavourable treatment ... so in determining whether the respondent [in that case] has treated the applicant unfavourably ... the Tribunal will take into account all reasons for doing the act other than those that are not real or genuine or are insubstantial.[9]

1. The burden is determined by section 53C of the Human Rights Commission Act 2005, which provides that:

_The parties to a complaint referred to the ACAT under this division are - _

(c) if, on application by the commission, the ACAT joins the commission as a party to the complaint - the commission.

1. Has the complainant 'presented evidence' that would enable the Tribunal to decide, in the absence of any other explanation, that the treatment or proposed treatment is because of a protected attribute of the other person?
2. The three individuals who are accused of having carried out the discriminatory acts, i.e. Malcolm and the second and third sex workers, were not present at the hearing and did not give evidence. No part of the applicant's evidence suggests that they made any direct or explicit reference to his disability and there is no express evidence as to what any of these individuals intended by their actions. Hence, I have no direct evidence of those individuals' 'reasons for doing the acts,' and whether the applicant's disability formed a part of those reasons.
3. While undesirable, a lack of direct evidence of the respondent's reason for taking an action is not an unusual circumstance in discrimination hearings. As was observed in Sharma v Legal Aid Queensland [2002] FCAFC 196 at 40 - 41:

...it may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953, 958. ...

...in a case depending on circumstantial evidence, it is well established that the trier of fact must consider "the weight which is to be given to the united force of all the circumstantial evidence put together". One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important, provided, of course, that the circumstances relied upon are established as facts.

1. The applicant alleges that his personal circumstances, and disabilities, placed him in a position of vulnerability that lead to him being asked for more money, and then intimidated and falsely imprisoned when he declined to pay it. He effectively submitted that such actions were only feasible because he was not an able-bodied man. For this reason, the actions of the second and third sex workers and Malcolm may be to be the real or substantial reason for his treatment.
2. I accept that the applicant's vulnerabilities, his inability to defend himself, dress himself, or effectively leave, were on the balance of probabilities reasons why the various workers treated him in the unfavourable manner that they did on the night of the incident, as set out in paragraphs 75(a) through (c), above.
3. I am satisfied that Malcolm wheeled the complainant into the darkened carpark and left him there because the applicant was disabled, and the applicant's limited mobility allowed this to happen. The complainant's disability is the reason why that action could be taken.
4. I am not, however, satisfied that the respondent's refusal to respond to the applicants to his phone calls or messages or to negotiate with or speak to him as per paragraph 75(e), above, is due to his disability. I have no evidence of the reasons or motivation for the respondent's failure to engage in these proceedings.

Is Ms Smith, trading as a Touch of Class, liable for the actions of the brothel staff?

1. On the available evidence, the company known as Dalmation Pride Pty Ltd, which had previously been the operator of the brothel, was deregistered in 2015. The business has nonetheless continued trading. The available evidence suggests that Ms Barac has continued to trade under that name, and I am satisfied, on the balance of probabilities, that she is the operator of the business.
2. However, Ms Barac herself was not present for any of the alleged acts of discrimination.
3. Section 121A of the Discrimination Act deals with liability for the actions of representatives. It provides:

1. This section applies to the doing of an unlawful act (conduct).

Note 1A complaint may be made about an unlawful act (see Human Rights Commission Act 2005, s 42 (1) (c)).

1. Conduct engaged in on behalf of a person by a representative of the person is taken to have been engaged in by the person if the conduct was within the scope of the representative's actual or apparent authority.
2. However, subsection (2) does not apply if the person establishes that the person took all reasonable steps to prevent the representative from engaging in the conduct.
3. In this section:

representative, of a person, means an employee or agent of the person

1. In other words, a person may be liable for the discriminatory actions of another if:
   • (a) the conduct was engaged in on behalf of a person;
   • (b) by a representative of the person;
   • (c) who is acting within the scope of their actual or apparent authority;
   • (d) unless the person took reasonable steps to prevent it.
2. The operation of this provision was discussed by the ACT Law Reform Advisory Council in the Review of the Discrimination Act 1991 (ACT) [2015] ACTLRAC 3 as following:

The common law concept of 'vicarious liability' means that an employer or principal is responsible for what their employees or agents do in the course of their duties. All discrimination laws, including the Discrimination Act, make employers or principals responsible for the discriminatory behaviour of their employees or agents. Technically, this responsibility is different from vicarious liability, and is more accurately referred to as 'attributed liability'.

The Discrimination Act says that a person is responsible for the discriminatory conduct of their 'representative', acting within their authority. Unlike the law of vicarious liability, attributed liability under the Discrimination Act excuses the employer or principal if they took 'all reasonable steps' to prevent the conduct.

1. These 'attributed liability' provisions do not render the employer or principal liable for the independent wrongs of a perpetrator, as per vicariously liability, but rather attribute those wrongs to the principal.[10]
2. I do not have any documentary or direct evidence as to the relationship between Malcolm and the two sex workers and the respondent. However, the weight of evidence, considered in total, suggests that all three were engaged in activities relating to the business of the brothel at the relevant time. The work was clearly being undertaken on behalf of the business.
3. Whether Malcolm and the sex workers were at law engaged as employees or independent contractors of a Touch of Class is of no consequence. While there is no definition of 'employee' in the Discrimination Act, the definition of 'employment' in the Dictionary provides that 'employment' includes engagement under a contract for services. A contract for services is an independent contractor arrangement. In any case, the weight of case law in comparable jurisdictions suggests that the concept of an 'employee' under the Discrimination Act extends to all forms of engagement in work.[11]
4. The courts have also adopted a flexible and broad approach to the definition of "actual and apparent authority" that looks to a connection between the action taken and the context. The relevant test was set out by Studdert J in Shellharbour Golf Club v Wheeler [1999] NSWSC 224 at [33] (in relation to the equivalent section in the Anti-Discrimination Act 1977):

[A]s I construe s 53(1) once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication.

1. On the evidence before me, the work of Malcolm appears to be the general management and oversight of the brothel. His interactions with the applicant appear to fall within the broad scope of that work, albeit they were conducted in an inappropriate manner. Accordingly, I am satisfied that he was acting in the course of his apparent authority when he locked the complainant in a bedroom.
2. The sex workers were both offering sexual services or engaging in acts associated with the provision of those services, including dealing at an initial level with customer complaints. Possibly, such conduct may not include negotiating the services to be provided or dealing with payment, but there is no evidence before me to that end. I am satisfied that the second sex worker was acting within the course of her apparent authority when she attempted to coerce the complainant into paying for additional services he did not want, and I am satisfied, in the absence of any evidence to the contrary, that third sex worker was acting in the course of her apparent authority when she locked the applicant in a room.
3. There is no evidence before me that the respondent took reasonable steps to prevent the conduct complained of.
4. Accordingly, I am satisfied on that the respondent is liable for the discriminatory acts established in these proceedings.

1. The applicant seeks an order for compensation under section 53E(2)(c) of the HRC Act. The specific orders sought are:
   • (a) A refund of the $200 paid to the respondent as a refund for services not provided; and
   • (b) Compensation of $1,000.
2. The general position is that compensation is designed to place the applicant in the position he would have been in had there not been an act of unlawful discrimination committed against him.[12] This can consist of economic loss, being actual financial loss, and non-economic loss, being another form of injury that is compensated by damages.
3. The alleged economic loss is relatively straightforward in this case. The applicant paid $200 for a service that was not provided. I am satisfied that this was an economic loss that should be compensated.
4. Non-economic loss is harder to calculate. While awards are often nominal, the Tribunal has accepted that more substantial awards of compensation may be awarded for hurt or distress where there is an "element of cruelty and humiliation" in the respondent's actions: see Kovac v The Australian Croatian Club Ltd (No 2) [2016] at [42].[13] I am satisfied that this is one such case.
5. I am satisfied that the evidence establishes that the applicant suffered humiliation and distress and this was caused by the respondent's agents unlawful conduct, in:
   • (a) threatening and attempting to extort him;
   • (b) unlawfully imprisoning him in the brothel;
   • (c) exposing him to danger by wheeling him into a dark carpark and locking him outside for some time while he waited for a taxi.
6. The applicant has requested $1,000 in compensation. This is a very modest sum, having regard to the nature of the discriminatory conduct, and certainly on the lower end of the spectrum of what may be available. The Tribunal orders to respondent to pay to the applicant to sum of $1,000 in compensation.

1. The respondent is to pay to the applicant:
   • (a) $200 by way of refund; and
   • (b) Interest in accordance with the Court Procedures Rules from 8 November 2018; and
   • (c) $1,000 compensation.

[1] See section 7 of the ACT Civil and Administrative Tribunal Act 2008

[2] See Craig v Kanssen (1943) KB 256; Wiltshire-Smith v Randle and Taylor Services Pty Ltd [1994] FCA 78

[4] Discrimination Act section 8(1)

[6] Discrimination Act section 8(2)

[7] [1996] ACTAAT 132

[8] [2001] FCA 379

[10] See Rees, Rice and Allen (3rd ed) page 833

[11] Commissioner of Police v Estate of Russell [2002] NSWCA 272; (2002) 55 NSWLR 232

[13] Citing Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82