Grass v McIntosh, Leong and Auyeng

NCAT Administrative and Equal Opportunity|2023-08-21

REASONS FOR DECISION

Mr Grass lodged a complaint of victimisation against Voyager Tennis Pty Ltd (Voyager), Mr Leonard McIntosh, Mr Edi Leong and Mr Terry Auyeng regarding events that occurred between 1 November 2021 and 4 January 2022 (the complaint period). Events prior to that date were not accepted for investigation by the Anti-Discrimination Board NSW because they occurred more than 12 months before the lodgement of the complaint.
In summary, Mr Grass alleged that he is a long standing member of an unincorporated tennis club or group largely comprised of retired persons who have, over the last 50 years, hired tennis courts to play socially twice a week (the social group) and that he had been playing tennis with the social group for over 25 years.
In late 2019, and again when the tennis courts re-opened following Covid restrictions in September/October 2021, he made numerous written complaints that some members of the social group were excluding older and less able members of the social group from playing tennis. His complaint to this Tribunal is that as a result of making the complaints he was victimised, including by being excluded from playing tennis with the social group.
On 23 March 2023 the Tribunal dismissed the complaint and published its reasons in Grass v Voyager Tennis Pty Ltd, McIntosh, Leong and Auyeng [2023] NSWCATAD 68 (the Decision).
On 23 June 2023, the Appeal Panel allowed an appeal against the second, third and fourth respondents and dismissed the appeal against Voyager Tennis Pty Ltd, the first respondent in that matter: Grass v Voyager Tennis Pty Ltd & Ors [2023] NSWCATAP 168 (the Appeal Decision).
The substance of the Appeal Decision is that there is no requirement for the Tribunal to make a finding of discrimination within the meaning of the Anti-Discrimination Act 1977 (NSW) (the Act) in determining whether or not there has been victimisation pursuant to s50(1)(c) of the Act. It is sufficient to establish that the person alleging to have been victimised made an allegation that 'would amount' to a contravention of the Act: Appeal Decision at [31].

Background

For the last fifty or so years a social group of retired and older persons have been hiring tennis courts at Meadowbank, Sydney to play tennis.
The social group has no formal rules and operates in the following manner: Tennis courts are booked for Tuesdays and Thursdays between 8.30am and 12.30pm. The number of tennis courts used on the day depends on the number of people that turn up. Mr Grass estimated that about 40 players played regularly during the week. Each player pays a standard fee. During the complaint period this was $10. Each player also signs their name on the sign-in sheet. Over the years the person who booked the tennis courts has been responsible for payment of the fees to the tennis court manager and the provision of the sign-in sheet to be signed as well as the provision of tea, coffee and biscuits. The money left over after the payment of the tennis court fees has, over the years, been used to pay for lighting at the tennis club, tea, coffee, biscuits and tennis balls.
In the social group there are players of different levels, some are strong players others are not. Members of the social group generally played with other members at a similar ability. Members took turns playing depending on the number of members attending on any particular day. Most games were doubles matches, which maximised the number of players who could play on the hired courts.
The tennis courts are owned by City of Ryde Council and have been leased and managed by various organisations over the years. In 2009, the tennis courts were leased and operated by North-Western Suburbs Tennis Association (NWSTA). From about 2021 the tennis courts were leased and operated by Voyager Tennis Pty Ltd (Voyager).
Mr Grass has been a regular tennis player with the social group for over twenty five years. Mr Grass was also a member of the NSW Chinese Tennis Association (CTA) and was previously engaged by the CTA to provide tennis coaching services to some of the CTA members, some of whom were also members of the social group.
During the complaint period, the first respondent, Mr McIntosh, was the organiser of the social group. For some 30 years this role was undertaken by Mr McIntyre who has since passed away. The second respondent, Mr Leong, was a long term member of the social club.
In December 2019, Mr Grass wrote to the CTA alleging breaches of numerous laws including discrimination law. No specific allegations were made. Around the same time an issue was raised with NWSTA that some of the stronger players in the social group (mainly new members) were not playing with older or less able members. Mr Grass gave evidence was that it was him and Mr McIntosh who raised the issues with NSWSTA. Mr McIntosh did not deny this when giving evidence in the Tribunal. Mr McIntosh agreed that he had in the past seen older and less able members of the social group excluded by other members.
At the same time, Mr Grass made a written complaint to the City of Ryde Council. He stated that he was concerned that older and disabled players were denied equal access to the tennis courts due to the conduct of a few members who would not play with them. They would walk off the court if these older or disabled members walked on the court or would make foursomes so that these other less able players were excluded. These members would also intimidate the older players by telling them to get off the court.
Mr Grass believed that it was an objective of the social group to support members to stay active and participate in physical and social activity and that these older and disabled members were being excluded and leaving the social group.
Following the making of these complaints, Mr Grass stated that he was victimised by some members of the social group, including those who were also associated with the CTA, from 2020 onwards. The victimisation that is alleged to have occurred at this time is outside the complaint period and no factual findings are made regarding these allegations by Mr Grass.
The tennis courts re-opened following Covid restrictions in September/October 2021. Mr Grass believed that he and some older/less able tennis players continued to be 'victimised and intimidated' by other members of the social group.
In October 2021, Mr Grass notified two Ryde Council counsellors and Voyager (the new facility managers) of the past and continuing exclusion of himself and older/less able members of the social group.
There was no dispute that the first and second respondents were aware that Mr Grass had made the complaints about older/less able members being excluded in 2019 and again in 2021.
Mr Grass attempted to play tennis with the social group from September 2021 onwards but was stopped from doing so by the first and second respondents. The exclusion occurred in numerous ways. Following Covid, an access code was required to enter the tennis courts. Mr Grass was not provided with the access code. Mr Grass' payments were refused and he was not permitted to sign the sign on sheet.
Mr Grass relied on evidence that on 16 December 2021, Mr McIntosh stated that Mr Grass was not a member of the social group and refused him access to the tennis courts it had booked for its members. As a non-member, Mr Grass was not able to sign in his guests.
There was undisputed evidence that Mr Leong said to Mr Grass words to the effect 'We do not want you here. Just piss off.' Mr Peacock who was with Mr Grass stated that he saw Mr Leong push Mr Grass and that Mr Leong said to him words to the effect 'You are with John Grass, you are not welcome here.'
Mr McIntosh contended that there was no 'club'. He claimed that he simply hired a court from Voyager for himself and his friends as he chose. However, Mr McIntosh contradicted this depiction of the arrangement by agreeing that Mr Grass had previously played tennis on courts hired by the social group for over twenty five years.
Mr McIntosh contended that Mr Grass was excluded from the social group because he had a vendetta against the CTA and one of its members who had an apprehend violence order (AVO) against him. Mr McIntosh described the complaints by Mr Grass as being 'fabricated', 'unsubstantiated' and 'ridiculous'. There was evidence that one of the members of the social group told Mr Grass that Mr McIntosh told him and other members of the group not to give Mr Grass the access code to the tennis courts.

Allegations and Responses

Mr Grass alleged that because of the concerns he raised with CTA, Voyager and others, Mr Leonard McIntosh, Mr Edi Leong and Mr Terry Auyeng (the respondents) victimised him by excluding him from playing tennis with the social group. This occurred by refusing to take his payment as a member of the social group, refusing him access to the tennis court booked by the social group, refusing to allow him to play with other members of the social group, and that Mr Leong assaulted him on one occasion with a tennis racket. Mr Leong denies assaulting Mr Grass. In regard to the assault, the police were called and spoke to Mr Leong. There was no evidence of any charges being laid against Mr Leong. Mr Grass alleged that Mr McIntosh and Mr Leong spread rumours that he was violent and aggressive and had AVOs out against him. Mr Grass contended that this was not true. He stated that some time before Covid a mutual AVO, to which he consented without any admissions, had been issued.
Despite there being no witness statements, there is significant conformity as to why and when Mr Grass fell out with the social group. Mr McIntosh and Mr Leong made similar submissions, which was that the difficulties started when Mr Grass accused members of the social group and CTA of excluding others based on their age and/or disability in about 2019/2020. Both Mr McIntosh and Mr Leong denied that persons who were frail because of age or infirmity were excluded. However both pointed to the allegations by Mr Grass as being the reason for the fall out between Mr Grass and themselves.
Both Mr McIntosh and Mr Leong painted Mr Grass as making unreasonable complaints which they considered to be baseless, tiring and disruptive. They submitted that they excluded him because they did not want Mr Grass raising his complaints, and all they wanted to do was to have a relaxing game of tennis.
In response to a question from Senior Member Tibbey during the original hearing of this complaint, Mr McIntosh stated that Mr Grass was not welcome because he had 'a vendetta' against CTA. He also stated that a member of the CTA had an AVO against Mr Grass and no longer played with the social group. This all took place prior to the onset of the Covid pandemic. However, Mr Grass was still not welcome to play with the social group from November 2021 - that is, after the Covid restrictions were lifted. Mr McIntosh and Mr Leong both acknowledged that they took active steps to exclude Mr Grass from playing tennis with the social group in the relevant period - that is, from November 2021 to January 2022.
Mr McIntosh agreed that he observed some members actively excluding other members, who were older or not strong players or who had disabilities, from tennis matches during social group days. Mr McIntosh also agreed that people who felt excluded and treated badly may not feel able to complain personally. Mr McIntosh agreed that Mr Grass did not act unreasonably in raising issues about players being excluded and that Mr Grass spoke to him in a reasonable manner about his concerns.
Mr Leong also gave evidence during the hearing. He admitted that he told Mr Grass that he was not welcome at the social club anymore and stopped him from signing the sign on sheet.

Service of Documents and Notices on the Third Respondent

Reg 13 of the Civil and Administrative Tribunal Rules 2014 requires a party to serve documents and notices on an individual by one of a number of means including personal service and postage to residential address. Electronic service via mobile phone number is only permitted where the person being served consented to the service in this manner; reg 13(2)(g).
In this case, Mr Grass served documents and notices on the third respondent via mobile phone number but there is no evidence that Mr Auyeng ever consented to such service. Mr Auyeng has had no involvement in these proceedings.
Mr Grass has not filed any proof of service of documents on Mr Auyeng, nor did he seek substituted service. For these reasons, the complaint against the third respondent is dismissed.

Victimisation - Legal Principles

Section 50(1) of the Act states: (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.
The onus of proving victimisation pursuant to s50(1) of the Act lies on the applicant, on the balance of probabilities, to establish that the respondents subjected, or caused him to undergo or experience, something that was a detriment on the ground that he had done any of the things in s50(1). Mr Grass relied on s50(1)(c) of the Act.
As stated by Deputy President Hennessy ADCJ in Najmitdinov v Woolworths Group Ltd [2019] NSWCATAD 51 at [9]: There are three elements of s.50(1). First, the applicant must have been subjected to a detriment. Secondly, the applicant must have done one of the things listed in s.50(1)(a)-(d) or the discriminator knows or suspects that the person has done or intends to do any of those things. Thirdly, the detriment must be "on the ground" that the applicant has done, or intends to do, one of those things.
As to s50(1)(c) of the Act, the Appeal Panel stated at [31]: In our view, it is clear that to found a claim of discrimination based upon s.50(1)(c) of the Act, the person alleged to have been victimised only needs to establish the fact of making an allegation that would amount to a contravention of the Act along with the other elements without having to establish that such allegation was, on the balance of probabilities, or otherwise, true, or that the discrimination had in fact been committed.
The Appeal Panel made this statement in circumstances where the alleged victims of the discrimination were not named and the persons who allegedly discriminated were not named. In the matter at hand, there was reference in the submissions by Mr Grass to four persons who were discriminated against. He stated that he did not name them for fear that they would be subject to further discrimination. The applicant set out in broad terms that the discrimination occurred on the basis of older age and/or a disability at the tennis courts by members of the social club. The precise period during which the disability and/or age discrimination occurred was not specified.
To make out s 50(1)(c) of the Act, an applicant needs to satisfy the Tribunal that they made an allegation to the person who committed the act or to the discriminator. The allegation must, if proved, amount to a contravention of the Act. The allegation does not, however, need to explicitly state this assertion to the discriminator or to the person who committed an act. Section 50(1)(c) of the Act is also satisfied if the discriminator suspects that the person victimised has or intends to make an allegation that, if proved, would amount to a contravention of the Act.
A complaint that there has been a contravention of the Act must broadly include the elements of the contravention. The contravention does not, however, need to be proved by the applicant where the allegation is that they have been subject to detriment because they made the complaint. Finch v Heat Group Pty Ltd [2010] VSCA 256 at [11]-[13].
In Chi v Technical and Further Education Commission [2012] NSWCA 421, the New South Wales Court of Appeal held at [27] that the complaint made by Mr Chi was not an allegation within the meaning of s50(1)(c) of the Act because it did not refer to any particular act as amounting to discrimination or harassment or ascribe any quality to the discrimination or harassment. Mr Chi unsuccessfully sought special leave to appeal to the High Court.
As stated in James v NSW Department of Communities and Justice [2021] NSWCATAD 280 at [329]: The NSW Law Reform Commission Review of the (Anti-Discrimination) Act Report 92, 1999 at [7.150], states that the intent of the legislation is to ensure that persons who believe that they have been subject to discrimination are not deterred from pursuing their rights for fear of reprisals or further disadvantage; see also Borg v Commissioner of Corrective Services & Anor [2002] NSWADT 42 at [166]. The remedies as to victimisation are broader as the Act recognises that victimisation or vilification complaints 'affect the whole group, even if the Action is brought by an individual complainant' .Ibid at [10.14], Section 108(2)(a) of the Act.
The policy reason for the provisions in s 50 of the Act is to provide recourse for persons who believe they have experienced discrimination and people who make reports of alleged discrimination that has occurred to others (NSW Law Reform Commission Review of the (Anti-Discrimination) Act Report 92, 1999 at [7.150]). It is a protective provision designed to work together with the rest of the provisions in the Act that, in most part, require individuals to carry the burden of making a complaint of discrimination. Section 50(2) of the Act requires the allegation to be made honestly and in good faith. Section 50(2) provides a complete defence where it can be established that the allegation made by the person was false and not made in good faith.
The term 'detriment' is not defined in s50 of the Act. It has been interpreted broadly to mean 'loss, damage or injury' on an objective basis, not limited to physical harm and includes psychological harm. Hautlieu Pty Ltd t/a Russell Pathology v McIntosh [2000] WASCA 146 per McKechnie J at [167]. The loss, damage or injury must be 'real and not trivial.'
The next question is whether at least one of the 'real', 'genuine' or 'true' reasons for being subjected to detriment is 'on the ground' or 'because' of an act by a person meeting the description in s50(1)(a) to (d) of the Act. There must be a causal connection between the detriment and what the person alleging discrimination had done or intended to do. James v NSW Department of Communities and Justice [2021] NSWCATAD 280 at [27] - [29]; Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP at [36]; Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis) per Gleeson CJ at [13], [102], McHugh and Kirby JJ at [142], [144].
An act done for more than one reason may still contravene s50 as long as one of the the real or genuine reasons consists of unlawful discrimination. Unlawful discrimination does not have to be the dominant or substantial reason for doing the act: s4A of the Act. It is a finding of fact to be determined in every case as to why a person was subjected to detriment: Purvis at [236].

Consideration of liability

There was no factual dispute between the parties that Mr Grass was excluded from the social group during the complaint period. There is also no factual dispute that Mr Grass made allegations of acts of discrimination. Mr Grass made a complaint to the management of the tennis court and the CTA alleging that some persons from the CTA, who were also members of the social group, were discriminating against older and/or disabled persons. The Appeal Panel found that this amounted to an allegation within the meaning of s50(1)(c) of the Act.
As set out above, Mr McIntosh observed some tennis players not willing to play with older players who were not as mobile, not as strong in their tennis abilities, or with disabilities. Mr McIntosh was involved with Mr Grass in making the initial complaint in 2019. This does not necessarily lead to the conclusion that Mr McIntosh believed that these players who were older or less able were discriminated on the basis of disability or age but it does lend weight to the assertions by Mr Grass that, as a fact, some of the players did not wish to play with others who were older or less able than themselves.
The Tribunal has no difficulty in finding that excluding a person from playing tennis with a social group that he has been playing with for over twenty five years is a detriment. Playing with the social group was also cheaper than hiring a tennis court as an individual, so financial damage also ensued as a result of the exclusion.
Mr Grass made complaints about allegedly discriminatory conduct. He also made numerous unrelated complaints against CTA including unfair exclusion in the Supreme Court of New South Wales, and in regard to employment related matters in the Fair Work Commission and the Federal Circuit Court of Australia, as it was at the time.
The respondents stated that they did not want to play tennis with him because of his 'baseless claims', 'vendetta against CTA' and 'vexatious attacks' (submissions filed by Mr McIntosh on 2 August 2023). Mr Leong gave the reason why Mr Grass was excluded from the social group as 'his ongoing actions in various courts and Tribunals that he is being subjected to victimisation and bullying with false claims…' (submissions filed by Mr Leong on 2 August 2023).
We find, based on the evidence before the Tribunal, that Mr Grass was excluded from the social group because he made the allegations within the meaning of s50(1)(c) of the Act and because he made other complaints against CTA.
There is no evidence to suggest that the allegation about the exclusion of older and less able members was false and not made in good faith.

Consideration of Remedies

Section 108(2) of the Act sets out the Tribunal's powers where a complaint is substantiated in whole or in part: (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following-- (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable Act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination, (f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, (g) decline to take any further Action in the matter. (3) An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate.
The Tribunal has found the complaint substantiated against Mr McIntosh and Mr Leong. Mr McIntosh and Mr Leong took active steps in excluding Mr Grass because he made allegations under this Act. Persons who make allegations under this Act should not be victimised, even if the person does not agree with the allegation or support it personally. Mr Grass had a legal right to make the allegations that he did. Mr McIntosh agreed during the proceedings that it is not unreasonable to raise concerns if people are excluded on the basis of old age or disability and that Mr Grass approached him in a reasonable manner about his concerns.
As far as the Tribunal understands, Mr Grass wants to return to playing tennis with the social group and to be able to bring his guests to play on social group days.
The Tribunal considers that it is appropriate in this case to make an order pursuant to s108(2)(b) of the Act that Mr McIntosh and Mr Leong do not continue or repeat their victimisation of Mr Grass.
Pursuant to s108(3) of the Act the Tribunal will also order that Mr McIntosh, as an organiser of the social group, provide a copy of this decision to the manager of the tennis court and that a copy of this decision be placed next to the sign in sheet for two Tuesdays and Thursdays following the publication of the Orders.

Orders

The Tribunal makes the following orders: 1. The first respondent and the second respondent must not continue or repeat any conduct rendered unlawful by the NSW Anti-Discrimination Act 1977 against the applicant. 2. The first respondent is to provide a copy of this decision to the managers of the tennis court, within 14 days. 3. The first respondent is to place a copy of this decision next to the sign on sheet for the social tennis group for two consecutive Tuesdays and Thursdays following receipt of this decision. 4. The application against the third respondent is dismissed.

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: 11 October 2023

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