Grass v Voyager Tennis Pty Ltd

Background

1. The following background is taken from the Decision of the Tribunal at [1]-[29].
2. The appellant says that he was a member of a club, the NSW Chinese Tennis Association ("the CTA"), and also an unincorporated association he referred to as the Meadowbank Tennis Club ("the MTC"). Both bodies the appellant alleged used facilities owned by the City of Ryde. Both facilities were leased and operated by Voyager from October 2021. Voyager let the tennis courts out to various groups from that time.
3. The appellant had been engaged by the CTA to provide coaching to members of the CTA. The appellant at one point brought an action against the CTA for breach of contract and general work protections and contraventions of s.340 of the Fair Work Act 2009 (Cth). This resulted in default judgment being issued pursuant to which the CTA was ordered to pay the appellant compensation pursuant to s.545 of the Fair Work Act.
4. Relevantly, the appellant alleged that he had been victimised for raising allegations that "some members of the CTA were excluding and intimidating older-feeble-infirm members of the MTC". In some of these submissions the appellant asserted that there were four of these people, who were "afraid of speaking up" as they valued the outlet for exercise and social interaction. The appellant stated in a document annexed to his complaint to the Anti-Discrimination NSW, being an email dated 14 December 2019, that: "Older and disabled players are being denied equal access to the courts due to the conduct of a few who are not playing with them, walk off the court when they walk on the court and on a couple of occasions I have witnessed this small group intimidating the older more frail player, telling them to get off the court."
5. The appellant alleged that the victimisation in the period accepted by Anti-Discrimination NSW for the complaint, 1 November 2021 to 4 January 2022, involved attempts to prevent him having access to the MTC, which the appellant also referred to as "the Meadowbank Tuesday/Thursday tennis club". Such attempts, the appellant alleged, included not accepting his payment when he arrived at the tennis court and refusing him access to the court.
6. The appellant alleged that once Voyager fenced off the facility and provided an access code to enter, he was refused the access code. The Tribunal noted that this was not contested.
7. The appellant also alleged that he was assaulted by one of the respondents, Mr Edi Leong, which Mr Leong did deny.
8. The appellant gave evidence and also relied upon two other witness statements. One such witness stated that when he went to play tennis on 16 December 2021 he was approached by Mr McIntosh who stated that it was a "private club" and that Mr Grass was not a member and could not sign in other players.
9. The second witness stated that he attended the tennis courts with Mr Grass, the appellant, and when they entered what was described as "the upper clubhouse", Mr Leong said words to the effect of "We don't want you here. Just piss off.", and "You're with John Grass. You're not welcome here."
10. Mr McIntosh contended before the Tribunal that there is no tennis club or members. There is only a tennis court which he personally hires from Voyager and that he has been personally doing this for over 10 years. He stated that he books the court, supplies balls and tea and coffee. According to Mr McIntosh, the group of people that he permits to play on the court are retired seniors and they have been playing together harmoniously for over 40 years. As Mr McIntosh put it, he hires the tennis court as a private citizen and "it is solely for my private use and other friends".
11. Mr McIntosh agreed that the appellant had been excluded from the group. According to him, the reason he had been excluded is because the appellant had a vendetta against the Chinese Tennis Association and one of its members who has an AVO out against the appellant.
12. Mr Leong also gave evidence and he accepted that he had told the appellant that he was not welcome to play with the group.
13. Mr Auyeng did not appear before the Tribunal.
14. Voyager denied the claim before the Tribunal on the basis that the organisation merely provided court hire services to any and all members of the community. Bookings are made online, by phone, email and in person, and according to Mr Ryan Henry, who appeared for Voyager before the Tribunal, "we welcome all people to take advantage of this service". According to Mr Henry, Voyager itself had never excluded Mr Grass, the appellant, or victimised him in any way. Mr Henry pointed out that Voyager welcomes the appellant at the facility and they have allowed the appellant to hire courts in his own name when he wishes to.
15. Mr Henry produced before the Tribunal a booking sheet which showed that the booking was made in the name of Mr McIntosh, with the number of hours and the charge per hour. The tendered booking sheets also show that the appellant had privately booked courts in his own name as well.

Reasoning of the Tribunal

1. The Tribunal referred to s.50 of the Act 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."
2. The Tribunal then relevantly stated the following (at [44]-[46]): "44. The applicant bears the onus of proving the claim, on the balance of probabilities. We are not satisfied that, on the balance of probabilities, the respondents, or any of them, committed acts which would amount to a contravention of the Act for the purposes of s.50(1)(c). This is because: (a) There is no information about the identities, disability, disabilities and/or ages of those allegedly discriminated against, or the extent of their alleged infirmities; (b) there are no specific details of what allegedly occurred and how this was discriminatory, apart from a very general assertion by the applicant, (c) there is no supporting evidence from other witnesses or documentary evidence corroborating the applicant's own statements as to the alleged discrimination, and (d) the allegations of discriminatory conduct are denied by the respondents. 45. As to s.5(1)(d), similarly, there was no corroborating evidence brought by the applicant from others allegedly treated less favourably due to their disability or age ('direct discrimination') or against whom there has been indirect discrimination and the individual respondents deny such conduct. The persons who were allegedly treated less favourably than others due to their age or disability were not named by either the applicant or the respondents and there was a paucity of information about what could have constituted disability or age-related discrimination. 46. In those circumstances, we are not satisfied that the applicant has made out his case pursuant to s.50(1)(d)."
3. Similarly, in respect of whether or not there was a connection between the appellant's allegation of discrimination and the appellant's exclusion from the tennis court or clubhouse, the Tribunal stated at [67]: "We cannot be satisfied as to a 'primary fact', namely that there was discrimination against some players on the basis of their age and/or disability and there is therefore insufficient information about that for us to draw a 'probable connection' between such alleged discrimination and the treatment meted out to the applicant."

Grounds of Appeal

1. The appellant in grounds 1-3 of his Notice of Appeal essentially raises as an error of law that the Tribunal erred in requiring the appellant to prove that the respondents had committed contraventions of the Act as alleged by the appellant as opposed to only being required to prove that the allegation was made and the detriment suffered was on the ground of such an allegation being made. In this regard, the appellant referred to the Tribunal's statement at [34] as follows: "In order to succeed in his claim of victimisation, Mr Grass would need to prove, on the balance of probabilities, that he has been subjected to a detriment, that acts have been committed that fall within the terms of s.50(1)(c) or (d) of the Act and that the detriment was "on the ground" of the alleged discriminatory acts."
2. The appellant also referred to paragraphs [44], [45], [48], [64] and [65] of the Decision in support of the proposition that the Tribunal erroneously required the appellant to prove that the respondents committed an act that would amount to a contravention of the Act, when, correctly construed, s.50(1)(c) of the Act only required the person victimised to prove that they made an allegation of discrimination and such person does not have to prove the actual discrimination.
3. At the hearing of the appeal, Mr Henry, Director, appeared for Voyager and Mr McIntosh appeared for himself. The third and fourth respondents did not appear. Both Mr Henry and Mr McIntosh, being unrepresented, indicated to the Appeal Panel that they were not in a position to make submissions as to the question of law raised by the appellant. They candidly stated that the issues appeared to be beyond them and their competence to actually comment on what was the correct position under law.
4. Mr Leong did supply written submissions. He stated that the appellant's submissions "says nothing about errors of law" and that "neither involve me in any way so it is difficult to comment". Further, Mr Leong stated: "I'm against any appeal being allowed as this just appears to be because he doesn't like the result of the Tribunal which I thought covered the matter very thoroughly and fairly."
5. The fourth respondent, Mr Auyeng, did not appear and also did not provide any submissions. We note that Mr Auyeng did not appear before the Tribunal either.

Consideration

1. As we understand it, the appellant was contending before the Tribunal that he had made an allegation that members of the MTA had committed acts which would amount to a contravention of the Act on the grounds of disability and age discrimination, and that because of his making such allegations, the respondents had imposed a detriment upon him, being his exclusion from the tennis court, and this amounted to discrimination pursuant to s.50(1)(c) of the Act.
2. 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.
3. 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 discriminant 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."
4. Accordingly, we accept the appellant's contention that the Tribunal fell into error in this regard. This error appears to have also infected the way in which the Tribunal viewed the question of whether or not the alleged detriment was on the ground of the conduct of the appellant in making an allegation of contravention of the Act. In particular, at [65]-[67] the Tribunal could not be satisfied of the connection in the absence of being able to be satisfied "that there was discrimination against some players on the basis of their age and/or disability".
5. Accordingly, we are of the view that the appeal against the second, third and fourth respondents should be allowed.
6. However, it is clear to us that the appellant has failed to make out any prima facie case of any detriment having been imposed by Voyager, which merely acts as a lessee of the tennis courts which it makes available to members of the public for hire. In such circumstances, we will dismiss the appeal against Voyager.
7. For completeness, we note that the appellant also raised one further ground of appeal. This was in respect of the contention before the Tribunal made by the appellant that the MTC amounted to an unincorporated organisation or "club". The Tribunal dealt with this contention at [49]-[59].
8. The Tribunal concluded at [57] that even if the MTC existed as an organisation, it did not make a profit and, as set out in s.57 of the Act, it was exempt from the provisions of the Act.
9. The appellant contended that the Tribunal failed, however, to decide the appellant's complaints against individuals such as Mr McIntosh, who agreed that he had excluded the appellant from the tennis courts.
10. It appears to us that the Tribunal was merely responding to the appellant's submission that there was an unincorporated club or voluntary association or body in existence. It is also wrong to say the Tribunal failed to decide the complaints against the individuals as it dismissed the complaints against the individuals on the grounds already explained above.
11. As we understand it, the actual conclusions of the Tribunal as to the alleged club not making a profit, and therefore being a voluntary organisation, are not being disputed by the appellant in his appeal. The question of whether or not the individuals should be found to have victimised the appellant will necessarily be raised on the matter being remitted to the Tribunal for reconsideration.
12. In light of the fact that the matter has already been fully heard by the Tribunal, in our view, the reconsideration of the matter should be on the basis of the existing evidence.

Orders

1. The orders of the Tribunal will be: 1. In respect of the second, third and fourth respondents, the appeal is allowed. 2. The appeal against the first respondent is dismissed. 3. The decision in respect of the second, third and fourth respondents is set aside with the whole of the decision remitted to the Administrative and Equal Opportunity Division, differently constituted, to be reconsidered without further evidence.

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 28 June 2023 - Paragraph 32 - "then" deleted from title of Deputy President 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: 28 June 2023