The applicant, Mr John Grass, lodged a claim of victimisation against City of Ryde, Voyager Tennis Pty Ltd (referred to here as 'Voyager'), Mr Leonard McIntosh, Mr Edi Leong and Mr Terry Auyeng regarding events which allegedly occurred between 1 November 2021 and 4 January 2022. Events prior to that date were not accepted for investigation by Anti-Discrimination NSW, because they occurred more than 12 months before lodgement of the Complaint.
There is no claim of discrimination against the applicant made in these proceedings.
The matter was referred to the Tribunal after investigation, pursuant to s93C(a) of the Act.
The applicant states that he was a member of a club, the NSW Chinese Tennis Association (referred to here as the 'CTA'), and an unincorporated Meadowbank Tennis Club ('MTC') which uses facilities owned by the City of Ryde. The facilities were, leased and operated by Voyager from October 2021. Voyager let the tennis courts out to various groups from that time.
Prior to the period accepted by Anti-Discrimination NSW, the applicant was engaged by the CTA to provide lessons and coaching to members of the CTA, but disagreements occurred, leading to the applicant bringing an action against the CTA for breach of contract and general work protections and contraventions of ths340 of the Fair Work Act 2009 (Cth). Default judgment was issued, pursuant to which the CTA was ordered to pay him compensation of $6,192.00 pursuant to s545 of the Fair Work Act 2009 (Cth) within 28 days.
Following this, the applicant alleges that he was excluded in various ways by the Meadowbank tennis club and he made a police report of an alleged assault on him by a member of the CTA. There were also allegations of domestic violence made against him.
None of those matters fall for determination in these proceedings, as the Tribunal can only have regard to the period for which Anti-Discrimination NSW accepted the complaint, which is after the activities of the CTA and MTC resumed after the covid-19 lockdowns, in late 2021. The events prior to that date are set out above in summary form by way of background only, indicating what preceded the conduct and actions in issue in these proceedings.
This claim is brought pursuant to the Anti-Discrimination Act, 1977 (NSW) ('the Act'). Although the applicant also refers in his submissions to the Disability Discrimination Act 1992 (Cth) and the whistle-blower protections of the Corporations Act 2001, this complaint falls for determination in accordance with the Act.
The applicant was permitted by the Tribunal to withdraw his claim against the City of Ryde, which had advised Anti-Discrimination NSW that it had no control over the operation of the tennis courts, which were leased to Voyager.
Some of the applicant's documents relate to another tennis club, the St Anthony's Tennis Club, however there is no claim against St Anthony's Tennis Club or individual members of it.
The applicant bears the onus of proof of victimisation, on the balance of probabilities.
In these proceedings the applicant alleges that he has been victimised for raising allegations that "some members of the CTA were excluding and intimidating older/feeble/infirm members of the MTC" prior to the period accepted by Anti-Discrimination NSW. In some of his submissions the applicant asserts that there were four of these players, who were "afraid of speaking up" as they valued the outlet for exercise and social interaction. He states in a document annexed to his complaint to the Anti-Discrimination NSW, 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 will not play 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."
There is no further, more detailed statement setting out, within the period accepted by Anti-Discrimination NSW, the identities of those who were allegedly treated in such a way, when this allegedly occurred, who was present, what happened, what was said and what conduct was observed. Nor is there any statement from those who allegedly suffered such discrimination or others who witnessed it.
The applicant alleges that the victimisation in the period accepted by Anti-Discrimination NSW for the complaint, 1 November 2021 and 4 January 2022, involved attempts to prevent him having access to the MTC, which the applicant also refers to as "the Meadowbank Tuesday Thursday tennis club". These attempts allegedly included not accepting his payment when he arrived at the tennis court and refusing hm access to the court. The applicant alleges that once Voyager fenced off the facility and provided an access code to enter, he was refused the access code. That is not contested. He also alleges that he was assaulted by one of the respondents, Mr Edi Leong, which Mr Leong denied.
The applicant's evidence is that he approached Ryde Council with his complaints that some members of the CTA were excluding and intimidating 'older/feeble/infirm members' of the MTC. The Council provided a copy of its inclusion policy and encouraged the respondent to develop such a policy. Nevertheless, the applicant claims that it was not implemented.
The applicant relied on his own evidence in relation to victimisation. He also relied on two other witness statements: first, a statement by Mr Andrew Hill. In summary, Mr Hill stated that he went to the Meadowbank Tennis Courts to play tennis on 16 December 2021, wrote his name on the sign-in sheet and paid ten dollars. Afterwards he was approached by Mr Len McIntosh who stated that it was a "private club", that Mr Grass was not a member and could not sign in other players and that "Len (McIntosh) hires the courts for the group".
Secondly, the applicant relies on a statement by Robert John Peacock dated 23 December 2021 stated that he had attended the tennis courts with Mr Grass, they paid their ten dollars, began playing and that when Mr Grass entered what is described as "the (upper) clubhouse" Mr Leong said words to the effect of "We don't want you here. Just piss off" and to Mr Peacock "You're with John Grass. You're not welcome here".
The respondents denied the claim of victimisation. Mr Leonard McIntosh argued that:
"There is no tennis club or members. Never has been. I personally hire a Tennis Court from Voyage Tennis (which Ryan from Voyager Tennis can attest to) and have no connection to any Tennis Club or association. I have been personally doing this for over 10 years. I book the Court, supply balls and Tea and Coffee. I am not in any way in control of the group I'm just another player and nobody tells anyone else what to do. We are a group of retired seniors in the 70 - 90 age group who have been playing together harmoniously for over 40 years" (sic).
Mr McIntosh provided an email to Anti-Discrimination NSW dated 5 April 2022 that stated in part:
"There is no Tennis Club or members. This is a tennis court that I hire privately without any connection to Clubs, Tennis NSW or Voyage Tennis. I hire a tennis court as a private citizen…It is solely for my private use and other friends".
He gave oral evidence that was consistent with his written response.
Mr McIntosh agreed that the applicant had been excluded from the group. He stated in cross examination words to the effect that:
"The reason he's excluded is because he has a vendetta against the Chinese Tennis Association. A CTA member has an AVO against him. She is not playing. I have comforted her."
Mr McIntosh also alleged that sometimes the applicant had not paid as required to use the courts, which was firmly denied.
Mr McIntosh and Mr Edi Leong both were cross examined by the applicant at the hearing. Mr Aeyung did not appear.
Mr Leong denied assaulting the applicant but agreed that he had told the applicant that he was not welcome to play with the group. He alleged that sometimes the applicant followed him and others onto a court and then, when he and others moved court, the applicant moved too. The police were called on at least one occasion.
Mr Leong denied that any members of the group had disabilities but agreed that some may be slower than others.
Voyager denied the claim, in a letter filed on 19 October 2022 by Mr Ryan Henry, Managing Director, Voyager Tennis Pty Ltd. The letter stated (in part):
In October 2021, Voyager Tennis Pty Ltd commenced as the new operator of Meadowbank Park Tennis Centre in which John Grass has been a regular long-term user of this facility.
As the operator of the facility, Voyager provides court hire services where members of the community can rent courts by the hour. Bookings are made available online, phone email or in person and we welcome all people to take advantage of this service.
In this same month John contacted us claiming he was having problems with a group of players who have been hiring the courts for several years which he has been part of. …..
Our initial response was to talk with John and the other members of the court hire group to attempt to mediate the matter. It became clear that John had several disagreements with this court hire group and that mediation was not going to be practical.
We suggested to John that if he is not enjoying playing tennis with a particular group that he is more than welcome to hire courts anytime at the facility including joining another group or creating his own. We made it very clear that Voyager Tennis welcomes him at the facility and have not victimised John Grass in any way."…
Mr Henry also gave oral evidence. He was cross examined by Mr Grass and his evidence was consistent with his statement above. He stated that the access code is given to the person who hires the court and it is a matter for the discretion of that person as to whoever else is given the access code.
Mr Henry also referred to a letter filed in the Tribunal on 19 December 2022 to which a copy of the booking sheet for the tennis courts was annexed. The booking sheet showed that the booking was made in the name of Len McIntosh, number of hours and charge per hour. It also showed that the applicant had also privately booked courts as there were bookings in his name.
The applicant stated in his written submissions that he disagreed with the suggestion of Mr Ryan that he and others should hire a court or courts at a different time and noted that it would be more expensive for some members to do so than to play as part of the existing group.
[2]
Statutory framework
Whilst the term "victimisation" is in common use in the community, what constitutes "victimisation" for the purposes of the Act is far more restricted than common parlance would suggest.
Under s50 of the Anti-Discrimination Act, 1977 (NSW), which will be referred to here as 'the Act', victimisation is defined 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.
As stated by (then) Deputy President N Hennessy ADCJ in Najmitdinov v Woolworths Group Limited [2019] NSWCATAD 51 at [9]:
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.
There have not been any proceedings previously brought by any party under the Act, although there were proceedings brought by Mr Grass under the Fair Work Act (Cth). Therefore, ss50(1) (a) and (b) of the Act are not relevant for these proceedings.
[3]
Have acts occurred that satisfy the requirements of s50?
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 s50(1)(c) or (d) of the Act and that the detriment was "on the ground" of the alleged discriminatory acts.
Neither party suggested that s50(2) of the Act was relevant in this case.
Mr Grass relied on his own evidence and that of Messrs Hill and Peacock, who were not required for cross examination.
The applicant did not adduce any evidence of the identities of those he alleges were "older/feeble/infirm members of the Meadowbank Tennis Club" who may have been able to initiate a claim under the Act for disability or age-related discrimination or who alleged that they had been subject to discrimination on the basis either of their age or disability.
Such persons, who had allegedly been treated badly because they were either "older/feeble/infirm members of the Meadowbank Tennis Club," remained unidentified and unnamed. What constituted the conduct complained of was not stated with any particularity as to time, date, the conduct alleged to constitute discrimination or whether words were spoken that indicated that the conduct was discriminatory. Nor was there any evidence, beyond assertion, as to what disability or disabilities were alleged, or what the ages were of those allegedly discriminated against.
In order to come within the terms of s50(1) the applicant would need to establish, on the balance of probabilities, that the respondents committed acts which would amount to a contravention of the Act.
The learned authors Rees, Rice and Allen state, in Australian Anti-Discrimination Law, Federation Press, Second Edition 2014 at 702 that:
"victimisation must be for one of the reasons set out in the Act. Other victimisation, for whatever reason is not prohibited by the Act"
They cite Lawrence v Department of Education [2012] TASADT 2 at [37] in support of that proposition. This must be so, as the terms of the Act set the limits of jurisdiction.
In this case, there is a real question of how specific an allegation of discrimination must be before it grounds a claim of victimisation for the purposes of the Act. Rees, Rice and Allen point out ibid at pp704 - 710 that there have been different approaches taken to that question in past cases in various states under similar state anti-discrimination legislation: Kalgoorlie Taxi Car Owners Association Inc v Regan [1998] WASCA 9; Finch v Heat Group Pty Ltd [2010] VSC 256; Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 at [93]; Chi v Technical and Further Education Commission [2010] NSWADTAP 67 at [22]; Chi v Technical and Further Education Commission [2012] NSWCA 421. The cases suggest that there needs to be at least a colourable claim of discrimination, even if it is not well articulated. Some cases such as Chi and Finch go further and suggest that the claim of discrimination ought to be able to be made out.
The claims of the applicant in this case that some persons were subject to age or disability-related discrimination were denied by individual respondents, Messrs McIntosh and Leong. Voyager and its staff were not in a position to know whether or not that was the case as none of them were apparently present at the courts when they were booked out.
This was not a representative complaint of discrimination for the purposes of s87A and 87B of the Act.
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 s50(1)( c ). This is because:
1. There is no information about the identities, disability, disabilities and/or ages of those allegedly discriminated against, or the extent of their alleged infirmities;
2. there are no specific details of what allegedly occurred and how this was discriminatory, apart from a very general assertion by the applicant,
3. there is no supporting evidence from other witnesses or documentary evidence corroborating the applicant's own statements as to the alleged discrimination, and
4. the allegations of discriminatory conduct are denied by the respondents.
As to s50(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.
In those circumstances, we are not satisfied that the applicant has made out his case pursuant to s50(1)(d).
Unless the applicant establishes that there has been victimisation within the terms of s50, the claim fails.
As we have found that we are not satisfied that acts that would amount to discrimination occurred, there is, on one view, no need to pursue other issues that arise in the matter but, for completeness, we have done so, below, dealing with the question of whether the tennis 'club' was a voluntary body and whether the applicant suffered a 'detriment' for the purposes of s50.
[4]
Voluntary Body
Voluntary bodies are exempt from the operation of the Act, to the extent in s57(2) of the Act. Section 57 is as follows:
[5]
57 Voluntary bodies
(1) In this section,
"body" means a body, the activities of which are carried on otherwise than for profit and which is not established by an Act, but does not include--
(a) a co-operative registered under the Co-operatives National Law (NSW) or a society under the Friendly Societies Act 1989 , or
(b) a friendly society registered under the Friendly Societies Act 1989, or
(c) a building society or credit union registered under the Financial Institutions (NSW) Code , or
(d) a co-operative housing society registered under the Co-operative Housing and Starr-Bowkett Societies Act 1998 , or
(e) a registered club.
(2) Nothing in this Act affects--
(a) any rule or practice of a body which restricts admission to membership of that body, or
(b) the provision of benefits, facilities or services to members of that body.
The applicant argued that he was being excluded from a club. Under the Act, discrimination is unlawful in the area of 'clubs', but these are defined as registered clubs under the Registered Clubs Act 1976 (NSW). It was common ground that there was no 'registered club' in this case.
The respondents argued that there was no club of any sort, no organisation, no organisational membership, no profit, just a private arrangement to book a court by Mr McIntosh, who was free to allow those he chose to participate. There was no evidence that any grouping had a set of officers, meetings or minutes of meetings.
The applicant cross examined the respondents, seeking to extract concessions from Mr McIntosh that there was a club and it made a profit, however there did not appear to be any convincing evidence of this, beyond there being a loose group.
Even if there was a loose group or organisation, there was no documentary or other evidence that a profit was made by the group. Mr McIntosh's evidence was that there were no formal books of account. No books of account were available in evidence.
It was agreed between the parties that there was a sign-on sheet each week, where a person signed on upon arrival at the court and paid money towards the expenses incurred in hire of the court, balls, tea and coffee and so on. Mr McIntosh also gave evidence that funds went into payment of court hire, buying equipment, improving the lighting and the like.
Given the lack of documentary evidence to the contrary, we accept the evidence of Mr McIntosh that there are no profits made by the group and that amounts paid over and above covering the cost of court hire are put back into the purchase of tennis balls, tea, coffee and so on. His evidence was clear and convincing on that matter.
Nevertheless we accept that, as the applicant argues, for many years there has been an organisation that functioned fairly informally, with no membership form, informal 'membership' and sometimes changing membership but composed of persons who played tennis together on a Tuesday and Thursday at the Meadowbank courts. We also accept that the applicant had been a member of that group for about 25 years at the time of the events that led to these proceedings being commenced.
Even if, as the applicant contends, an organisation existed or exists, if it did not make a profit, then as set out in s57 of the Act, it is exempt from the provisions of the Act. A voluntary body is able to determine the "provision of benefits, facilities or services to members of that body" pursuant to s57(2)(b) without being subject to the Act.
Thus, if there were a social tennis group that did not make a profit and was not established under an Act, then whether it provided facilities or services or membership to the applicant or to other members would not fall for determination under the Act, due to the exclusion of such bodies from the purview of the Act.
A voluntary organisation is not excepted from the Act for the purposes of provision of goods and services to non-members, so, for example s49M deals with disability discrimination in the provision of goods and services. However there is no claim of discrimination against the applicant and a lack of specificity of allegations in relation to unnamed others, as set out above, even if they were non-members of the group (which was not argued).
[6]
Detriment
As Hennessy LCM stated in CEU v University of Technology Sydney [2017] NSWCATAD 323 at [8]: The term "detriment" has a relatively broad meaning.
As stated in James v NSW Department of Communities and Justice [2021] NSWCATAD 118 at [28] and [29]:
The term "detriment" in s 50 is not defined by the Act. We adopt the meaning of that term consistently applied by NCAT and one of its predecessors, the NSW Administrative Decisions Tribunal (the ADT) - that is, something that objectively assessed amounts to loss, damage or injury that is real and not trivial. (See, for example, Sivananthan v Commissioner of Police [2001] NSWADT 44 at [41], [41]; Tebb v State of NSW [2020] NSWCATAD 85 at [22]; Bonella v Wollongong City Council [2001] NSWADT 194 at [50].)
In Nicholls, an Appeal Panel of the ADT considered the meaning of the phrase "on the ground" in s 50 of the Act, concluding at [37] that the question posed was whether at least one of the "real", "genuine" or "true" reasons the "discriminator" subjected "the person victimised" to a detriment, was because the person victimised had done or intended to do, or the discriminator suspected that the person victimised had done or intended to do, at least one of the things listed in s 50(1)(a) to (d) of the Act.
We find that the applicant has suffered a detriment within the meaning of the Act, namely being excluded from the tennis group in various ways. Considering his evidence that he had been a member of the group for 25 years, that is a detriment that is very real and far from trivial.
The applicant would need to prove, on the balance of probabilities, that discrimination against the older and/or disabled players was one of the "real", "genuine" or "true" reasons for the applicant being subjected to a detriment: James v NSW Department of Communities and Justice [2021] NSWCATAD 118 at [27] - [29].Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]; Lipman v Commissioner of Police [2015] NSWCATAD 250 at [308]; Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 at [70] quoting Buchanan J in Penhall-Jones v New South Wales [2007] FCA 925.
In other words, there must be a causal connection between the excluding treatment meted out to the applicant and the detriment he suffered.
There were a number of issues in dispute between the applicant and the individual respondents that pre-dated the period accepted by Anti-Discrimination NSW. These may have contributed to the exclusion of the applicant from the court booked by Mr McIntosh. Even if that were so, if we were satisfied that discrimination against players had occurred and that the discrimination was a real and proximate cause of the victimisation, that requirement in the case would have been established.
Given the lack of specificity in relation to the claims that the older or infirm tennis players were discriminated against and the existence of other disputes between the parties, we are not satisfied that there was a causal connection between the excluding treatment experienced by the applicant and any such alleged discrimination.
There is also insufficient information available for us about the alleged discrimination to be able to even infer that there was such a connection. The requirements for the drawing of inferences were conveniently summarised in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] as follows:
i. a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts
ii. an inference must be reasonably drawn on the basis of the primary facts
iii. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference.
iv. a fact relied on as the basis of an inference need not be proved to the requisite standard of proof
v. it is not enough that the inference is a mere possibility: it must be one of "probable connection"
vi. the inference must be a logical one, and not supposition
vii. an inference cannot be made where more probable and innocent explanations are available on the evidence.
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.
[7]
Consideration and Findings
We find that the allegation of victimisation has not been established to the requisite standard.
There is no order as to costs as none of the parties were legally represented.
[8]
Orders
The application is dismissed with no order as to costs.
[9]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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: 23 March 2023
Parties
Applicant/Plaintiff:
Grass
Respondent/Defendant:
Voyager Tennis Pty Ltd, McIntosh, Leong and Auyeng