Grass v Voyager Tennis Pty Ltd

NCAT Appeal Panel|2023-06-16

REASONS FOR DECISION

This is an appeal from a decision of the Tribunal dated 23 March 2023 ("the Decision") under the Anti-Discrimination Act 1977 (NSW) ("the Act").
The Tribunal decided to dismiss the complaint. The appellant had brought proceedings against four respondents: Voyager Tennis Pty Ltd ("Voyager") and Messrs McIntosh, Leong and Auyeng.
The claim made by the appellant was one of "victimisation" under s.50 of the Act.
The appellant contended that he suffered a detriment as a result of raising allegations of disability and age discrimination.
The Tribunal, in essence, dismissed the claim of victimisation on the basis that it was not satisfied on the balance of probabilities that the alleged acts of discrimination put forward by the appellant had occurred. The essential issue on appeal is whether or not this was a correct approach to determining the claim of victimisation under s.50 of the Act.
For the reasons which follow, we have decided that the Tribunal erred in this regard and the appeal against the second, third and fourth respondents should be allowed, but the appeal against the first respondent should be dismissed on the basis that there is no evidence that the first respondent imposed any relevant detriment against the appellant.

Reasoning of the Tribunal

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."
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)."
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

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."
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.
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.
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."
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

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.
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.
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."
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".
Accordingly, we are of the view that the appeal against the second, third and fourth respondents should be allowed.
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.
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].
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.
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.
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.
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.
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

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

At a glance

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Decision date

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Judgment (8 paragraphs)

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Legislation Cited (2)

Cases Cited (2)

Cited By (3)