Kelly v Pensalfini [2019] TASSC 2

Kelly v Pensalfini [2019] TASSC 2 | Case summary | Zoe

[8]

Under the provisions of the Licensing Act 1990, the appellant is the licensee of the State Cinema premises in North Hobart. He was, and is, involved in the day to day management of the Cinema which is operated by Newdegate Nominees Pty Ltd. On 20 December 2016, the Anti-Discrimination Tribunal constituted by members K Cuthbertson and R Winter (the Tribunal) found that the appellant had breached s 16(2) of the Anti Discrimination Act 1998 (the Act) by refusing to sell to the respondent a movie ticket. The relevant events took place on 3 May 2013.
The ground on which it was held the appellant discriminated against the respondent was the attribute of "industrial activity" as specified in s 16(1) of the Act. The Tribunal found that the respondent was a member of the Media Entertainment & Arts Alliance (the MEAA). (The Tribunal dismissed a complaint that a further ground of discrimination was the respondent's status of a sole parent.) The Tribunal ordered that the appellant pay to the respondent the sum of $1,000 by way of compensation within 30 days. The Tribunal also had before it a complaint against Newdegate Nominees made on the basis that the appellant was a member, officer, employee or agent of the company within the meaning of s 104 of the Act. That complaint was dismissed on the basis that the evidence fell short of establishing any such relationship.
On 25 January 2017 the appellant filed an appeal against the Tribunal's decision, pursuant to s 100 of the Act. Section 100(1) provides that a person may appeal against an order of the Tribunal within 28 days of it being made. Accordingly, the appellant's appeal was some eight days "out of time". He has applied for an extension of the time within which he may appeal. In an affidavit in support of the application, the appellant says that the decision was served by post sent to a rented post office box. He says that he did not actually get the decision until 30 December 2016. That fact is not in dispute. The appellant does not explain his state of mind as to the time allowed to him for an appeal, but it is reasonable to infer that he felt the 28 days ran from when he received notice of the decision. On those bases there is a satisfactory explanation for the delay. The respondent is not prejudiced by the delay. In the circumstances, I heard both the application and the appeal at the same time; the only issue in the application is whether the appeal has any merit.

[12]

To provide an overview, it is convenient to adopt the background set out by the Tribunal at [7]-[8] of its reasons, modified to the extent of referring to the appellant and the respondent as they are in these proceedings:
- On 3 May 2013, the respondent attended the State Cinema in North Hobart with the intention of purchasing a ticket and attending a movie being screened that day. Security footage from the cinema shows the respondent in the cinema foyer shortly before midday.
- The appellant, who is also the owner/manager of the State Cinema, was serving at the counter at the time.
- In the course of attempting to purchase her ticket, the respondent produced an MEAA card and asked whether she was entitled to a concession as a member of the organisation.
- The respondent later produced a Centrelink pension card and sought to purchase a concession ticket on that basis.
- The appellant refused to sell the respondent a ticket. The reasons for this are the subject of dispute.
- The respondent left the Cinema, returned a second time and again attempted to purchase a ticket. The appellant again refused her service. The respondent left, attended a third time and was again refused service.
- The respondent entered the Cinema again sometime after 1.10pm. A friend of hers had purchased a ticket and provided it to her. She sat in the theatre and started watching the film. The appellant later entered, requested that the respondent leave and told her police would be called if she did not do so.
- The respondent did not leave at the appellant's request so he contacted police. Police arrived and accompanied the appellant into the theatre. The appellant asked the respondent to leave in the presence of the police officers. The respondent told the appellant that she had a ticket and was going to stay and watch the film. The police then requested that the respondent leave and she left in the company of police.
- On 7 May 2013 the respondent received an email from the Cinema indicating that she was not permitted to enter the premises. That denial of access to did not specify a period, and the ban remains in place.
- In respect of the allegations of direct discrimination, the appellant says that he did not refuse service to the respondent on the basis of her production of the MEAA or Centrelink pension cards. He says the refusal of service was as a consequence of the respondent's behaviour which was said to be in breach of the cinema's Code of Conduct and provisions of the Licensing Act.
- Similarly, the appellant also says that the respondent was banned from attending the cinema due to her behaviour.
The parties represented themselves before the Tribunal, with the appellant appearing for the company. The respondent gave evidence and called evidence from a Ms Cindy Aulby, a person known to the respondent who was present during what seems to have been the third attempt to buy a ticket. The respondent also called evidence from Constable Seymour, one of the police officers who attended. The appellant gave evidence and called evidence from staff members, Ms Beatrice Rueckert and Ms Janet Dale, and also from the other police officer who attended; Constable Eaves. Ms Dale is the only witness called said to have witnessed the initial exchange. The appellant tendered CCTV footage from the cinema's foyer. The footage runs for nearly five minutes and shows that initial exchange. The Tribunal had to resolve a major factual dispute about what happened, particularly during the critical initial phase before the respondent left for the first time.
A short summary of what the respondent said happened, taken from the Tribunal's reasons, is as follows. When she went to the State Cinema on 3 May 2013, she noticed that Mr Kelly was serving at the counter so took the opportunity to ask if concessions were available to members of the MEAA. She asked him whether he offered MEAA concessions yet. Mr Kelly's response took her by surprise. He immediately responded in what she thought was a very aggressive manner. He spoke loudly and quickly. His manner was forceful. She described his behaviour as defensive. He used words such as "your type", "your organisation" and "your people", and referred to having been hassled for over seven years by people about this issue. He said words to the effect of being sick of "your type and your people" [sic].
The respondent took back her MEAA card and then offered her Centrelink Parenting Payments Single pension card in order to obtain a concession. She told Mr Kelly that she did not know what he was talking about, asked that he stop talking to her about the issue and to sell her a concession ticket based on her pension card. The appellant refused and said words to the effect of "you'll listen to me". The respondent described him as continuing with a "barrage" with his story and opinions about the MEAA. She requested that he stop the attack, told him that she did not have to listen to him and asked him to just sell her a ticket. She sought assistance from another staff member standing nearby, but the appellant told that staff member not to serve the respondent, that she was not welcome and would not be served that day. The respondent was shocked, sat down in the foyer, collected her thoughts and then left the building.
After about 5 or 10 minutes, she decided to make a further attempt to purchase a ticket. The appellant told her several times that she would not be served. She approached the appellant in a calm manner and kept asking for a ticket. She was in the foyer for about 10 to 15 minutes on this occasion. As she was walking away she said, "I don't understand why you are being such a fuckwit." The appellant then spoke loudly in front of a number of people, saying that she was disrupting customers and insulting him, and that she should leave.
The respondent returned a third time and attempted to behave in a conciliatory fashion. She said that all of this was very silly, they should sweep it under the carpet, and she would not mention it again if he would let her buy a ticket to see the movie. The appellant again refused her service. It was at this point that Ms Aulby was standing in the line behind her. The respondent left and sat in her car. At 12.29pm the respondent posted a comment on Facebook about the incident. At 12.45pm she made a further post requesting someone buy her a ticket. Someone agreed, purchased a ticket for the 1.30pm session, and the respondent entered the theatre a few minutes before the movie was due to be shown. Shortly after, the appellant entered and told her he was giving her a chance to leave but if she did not, the police would be contacted. She ignored him and continued to watch the movie. The police arrived shortly after.
The appellant's evidence was that the respondent approached him at the counter, produced her MEAA card and asked for an admission price discount. He told her that the Cinema did not accept the card. He said she immediately attacked him, saying that he was discriminatory. He explained that the Cinema supported many unions and other organisations, but there was a process that needed to be followed to become eligible for discounted tickets. The respondent continued to accuse him of being discriminatory. He asked her to stop using an aggressive and loud voice, which he said was getting louder. He explained it was necessary for the organisation to approach the State Cinema for a discount.
The respondent's aggressive behaviour, loud voice and accusations of him being discriminatory continued, so he told her that there was a code of conduct to which patrons must adhere. He said that if she did not comply, he could refuse her service and ask her to leave the premises. She continued with her behaviour so he said, "That's it, I'm formally telling you that I'm not serving you and that you are to leave. If you don't leave I'll be forced to call the police." Before giving a final warning, the respondent called him a fuckwit. She then produced a second card to obtain discounted entry. As he had already told her that she would not be served, he asked her to leave. He then walked away from the box office area. He came back a short time later, and was again approached by the respondent. He went through what he had previously explained and walked away. She spent more time in the box office area requesting service from other staff before leaving. He said that his employee, Janet Dale, was present throughout all of the interaction.
Some time later the respondent returned, left and came back again, but he could not recall what then happened; he "tried to avoid the situation as the matter had been dealt with and it was finalised." He did not recall having any further conversation with her during either the second or third visit, but if he had spoken with her it would have been to repeat what he had said earlier. At about 1.00pm he was told that the respondent was in one of the theatres watching a movie. He then took action.

[25]

This is an appeal is by way of rehearing: Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48 at [6]. As such, the appellant needs to persuade the court of identified error: Allesch v Maunz [2000] HCA 40, 203 CLR 172 at [23]; Bahonko v Sterjov [2008] FCAFC 30 at [3]. As amended, the notice of appeal contains nine grounds. There is no ground of appeal that explicitly complains of an error in fact-finding on the part of the Tribunal in being satisfied that the respondent's version of events was correct. However, that point, along with the appellant's general approach, needs to be assessed in light of a part of his written submissions described as "overview", and some of the things he said in oral argument. As will emerge, there are underlying difficulties. During the hearing, the appellant described the "substantive issue [which] goes to the heart of the error made by the Tribunal" as that relating to its determination that he discriminated against the respondent on the ground of industrial activity, "when in fact, that attribute was not a causally operative factor at all".
In the "overview", the appellant essentially submits that the Tribunal erred in finding that "industrial activity" was the basis of the denial of entry, "because [the respondent's] conduct leading to the refusal of service was effectively unrelated to her membership of an industrial organisation". He says the "causally operative factor was not membership of [the MEAA], but was the [MEAA's] failure to seek approval for discounted tickets for its members". He says his conduct did not in practical terms mean the respondent was treated less favourably; rather by his conduct he declined to treat her more favourably than other patrons who, like the respondent, were not entitled to receive corporate discounts. Even if the Tribunal was correct in finding that there had been less favourable treatment, he was justified in his actions because of the "reasonable business practice in determining eligibility for granting corporate discount cinema tickets".
Further, the appellant says that "other findings by the Tribunal arising from subsequent discussions between him and the respondent following the initial advice that she was not entitled to a discounted cinema ticket are irrelevant to the primary issue of whether the defined discriminatory conduct had occurred". In this context, he says that the first refusal of service was on the ground of ineligibility for discounted tickets, while the second refusal of service "was on the basis of the respondent's offensive and unruly behaviour on the premises of his business in front of himself, his staff and other patrons following the initial refusal of service ...".
These arguments were repeated in oral submissions as to the "substantive" issue. In summary, the appellant says:
- There was insufficient basis for a finding of causal connection between the attribute of industrial activity and his conduct.
- The evidence did not support a refusal to sell a discounted ticket because the respondent was a member of the MEAA, but it disclosed the causally operative factor as being that she was a member of a union that had not been approved for member discounts; the central basis of the causally operative factor was that the respondent's eligibility for a discount did not exist.
- The incident was comprised of eight stages, the first two being the respondent's initial request for a discounted ticket, the second being the refusal on the ground of lack of eligibility.
- The third was the "unseemly and offensive response to that refusal by the respondent", with the fourth being her subsequent barring from the premises.
The appellant argues that it was the first two stages that were relevant to the issue of whether discrimination had taken place, and discrimination in relation to stages one and two could not have been made out on a balanced consideration of the evidence: "It may be that the Tribunal became distracted by the evidence relating to stages three to eight ...".
The effect of all of this seems to be that the appellant believes the refusal to sell the respondent a discounted ticket formed at least part of the discriminatory conduct found against him. But that is not correct. It was held that the discriminatory conduct was the refusal of service as such: the Tribunal at [95]. The refusal to sell a discounted ticket formed part of the narrative; it was the subject matter of the "discussion" that led to the refusal of service. But it was not relied on as an aspect of the suggested discrimination, nor as giving rise to it in any relevant way. More particularly, the appellant proceeds on the assumption that his version of events offered to the Tribunal, and not accepted by it, is the version on which the appeal should proceed. Quite obviously, that cannot be so.
However, the assertion that the Tribunal wrongly rejected his version may be implicit in a number of grounds which allege error by giving particular pieces of evidence "undue weight", and also from grounds which allege errors in conclusions drawn from the CCTV footage and Ms Dale's evidence. For those reasons, and for the sake of completeness, I will deal with the question of whether the Tribunal erred in accepting the complainant's version of events as correct, after I address the grounds of appeal individually.

[29]

This ground is also without merit. It suffers from the difficulties previously mentioned. In its drafting and in the argument in support, the appellant focuses on his act of refusing to sell to the respondent a discounted ticket. He argues that the Tribunal erred "in concluding that membership of an industrial organisation alone is sufficient basis for a finding of discrimination ... where there was insufficient nexus between that membership and the alleged proscribed conduct." This is explained in further submissions as follows. The MEAA had "repeatedly" failed to apply for discounts for its members. The respondent's request for a discounted ticket was not an activity of an industrial organisation, and "the possible discretionary bonus of a discounted cinema ticket cannot be said to be a relevant attribute of an industrial organisation".
Significantly, at this point the appellant argues that complete denial of a ticket to an MEAA member at any price "would clearly amount to discrimination" but that is not so in relation to a discretionary discounted ticket; the "entitlement" to a discount as a union member was "a minor discretionary incidental attribute of membership" and one which may or may not be available. Additionally, the appellant says the Cinema was not the respondent's place of employment.
What I said earlier about the difficulties in the appellant's approach, and what I have said about ground 1A is sufficient to dispose of much of what is raised under this ground of appeal. What remains can be dealt with by reference to the definition of "industrial activity". As noted above, the term includes the status of membership of an industrial organisation; it is not confined to "activity" in the ordinary sense. However, the ground does raise the issue of causal connection. For the sake of completeness, I am prepared to deal with it - unaided by submissions - on the basis of an asserted error on the part of the Tribunal in drawing the inference from the facts as found to exist, that the refusal of service was on the ground of the respondent's membership of the MEAA. To the extent that the ground impliedly raises an assertion that the Tribunal ought to have accepted the appellant's version in preference to that of the respondent, I will deal with that under later grounds.
The Tribunal noted that the complainant (respondent) bore the onus of proof, and that although the standard of proof was that of the balance of probabilities, the approach to be followed was that set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 per Dixon J at 362. That is to say, the seriousness of an allegation made, the inherent unlikelihood of a particular occurrence, the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved. The quality of evidence which will satisfy the standard in a particular case may vary according to the gravity of the issue. At [79] the Tribunal rightly said it was mindful of the fact that a finding that the appellant had breached the Act was one that may impact on his reputation and that of his business, and accordingly the Tribunal needs to be "comfortably satisfied that the complainant's version ought to be accepted".
The finding that the appellant's act of discrimination was based on industrial activity involved the drawing of an inference. The evidence must have induced in the mind of the Tribunal an actual persuasion of the fact. Where circumstantial evidence is relied on, it is not necessary that all reasonable hypotheses consistent with the non-existence of the fact, or inconsistent with its existence, be excluded before the fact can be found; a rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue: Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 at [55].
Although all that is required is that the circumstances raise a more probable inference in favour of whatever is alleged, there is no authority to "choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others": Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 304 per Dixon CJ, ACCC v Metcash Trading Ltd [2011] FCAFC 151, 198 FCR 297 at [31]. A court is entitled to draw an inference from "even slim circumstantial facts that exist so long as that goes beyond speculation": Progressive Recycling Pty Ltd v Eversham [2003] NSWCA 268 at [7] per Young CJ in Eq; Condos v Clycut Pty Ltd [2009] NSWCA 200 at [68].
Section 14(2) of the Act refers to "discrimination ... on the basis of any prescribed attribute [etc]". The phrases "on the basis of" and "based on" are synonymous with the phrase "by reason of": Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; Thomson v Orica (above) at [158]-[161]. The phrase "because of" in the same context in s 5 of the Disability Discrimination Act 1992 (NSW) has been held to indicate that it is the reason the discriminator acted that is relevant. The inquiry relates to the "true reason", "real reason" or "true basis" for the less favourable treatment: Waters (above) at 359; Purvis v New South Wales [2003] HCA 62, 217 CLR 92 at [13] per Gleeson CJ, [188]-[189] per McHugh and Kirby JJ, [236] per Gummow, Hayne and Heydon JJ.
This case is not a straightforward one in the sense that it does not involve a refusal of service simply resulting from the appellant's discovery that the respondent was a member of a union, or in particular, a member of the MEAA. The facts are a little more complex. Two points need to be made. The first is that s 14(2) of the Act operates literally. Discrimination has taken place if it is established that a person was treated in a particular less favourable way because of the identified ground of discrimination. There must be a decision or action adverse to a complainant, made on the basis of a proscribed ground. It is a little unsettled, but the law seems to be that it is not necessary for the discriminator to knowingly or actively commit an act of discrimination, as distinct from doing something giving rise to an unconscious or unintended result. Questions of motive and intention may assist in the resolution of the question as to whether something was done on the ground of an attribute, but the question is - why was the aggrieved person treated as he or she was?: Purvis (above) at [236].
Second, s 14(3) of the Act provides that it is not necessary the prescribed attribute be the sole or dominant ground for the unfavourable treatment. This means it may be a reason or factor among others: Purvis (above) at [13]; Jones v Scully [2002] FCA 1080, 120 FCR 243 at [114]. A trivial or insignificant reason is insufficient; it needs to have "truly played a causative part": IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 63.
In the present case, it is implicit in the acceptance of the respondent's version of events, that the appellant's refusal to serve her came almost immediately after she asked him to stop his "attack" on her, and said she did not have to listen to him, asking him to "just sell her a ticket". It is possible that the appellant acted solely out of a personal dislike for the respondent which he had developed in the minutes of their exchange, quite unconnected with her membership of the MEAA. It is possible that a personal dislike played a part in his decision. But in my view, the Tribunal was quite entitled to make the findings that it did at [87], [90] and [95] of its reasons.
On the facts as found, it is more likely than not that, given the context of the whole of the discussion to that point, the respondent's membership or assumed membership of the MEAA was an operative factor - and more than a trivial or insubstantial one - in the refusal of service. In that discussion, the appellant showed antipathy to the MEAA and its members over a saga of ongoing requests by members for discounts, and the union's failure to follow the required procedure to obtain the concession.

[33]

In spite of the wording of the ground, the appellant limited his argument to the point that, as the Facebook posts were not an independent record, they should have been given no weight. The appellant did not advance any further argument. By s 87(4) of the Act, the Tribunal is not bound by the rules of evidence but is bound to observe the rules of natural justice, and is able to inform itself on any matter as it thinks fit. The short answer to the appellant's complaint is that the Tribunal was entitled to give the evidence such weight as it sought fit. The posts were made within a few minutes of the events the respondent purported to record. The Tribunal noted that the posts about the initial interaction were contemporaneous, and were consistent with the respondent's evidence. Although not contemporaneous in strict terms, the posts were made within a few minutes of the events.
Having examined them, I would agree they are quite consistent with the respondent's version. The first post at 12.29pm refers to the appellant's "long aggressive rant about 'your type' and 'your organisation' [and a] barrage. '7 years of people hassling me' etc etc." It goes on to document the request made of the appellant to stop attacking her, and the immediate refusal of service. Later, at 12.45, the respondent commented that she was not doing anything wrong: "The only possible thing he has is that I muttered 'I don't know why you are acting like such a fuckwit' as I left the second time."
I would observe that in relation to disciplinary proceedings at least, it has been said - no doubt because of the possible ultimate consequences - that a tribunal would be wise, where ordinary questions of fact are concerned, to hesitate before departing too drastically from the rules of evidence: In re Medical Act 1959 [1973] TASStRp 6; [1973] Tas SR 43 at 67. If the rules of evidence were applied, the Facebook posts would have been admissible as previous representations by way of an exception to the hearsay rule under s 64 of the Evidence Act 2001. On that basis, the representations in the posts were capable of being treated as evidence of the truth of the representations, and as evidence relevant to the respondent's credibility. The extent to which the evidence was so taken would have been a matter for the Tribunal.
The Tribunal was entitled to have regard to the Facebook posts in assessing the credibility and reliability of the respondent's evidence. No doubt it bore in mind the nature of, and inherent difficulties with, this type of hearsay evidence. In its specific terms, the ground must fail.

[37]

The appellant did not deal with this ground in his written submissions. In oral argument, it became clear that it has two distinct aspects. First, the appellant submitted that undue weight was given to the CCTV footage because it did not show all of the entrance foyer. This argument is related to ground 6 which, as explained by the appellant, is a complaint that the Tribunal did not allow him to explain that fact. I will deal with that ground in due course. As to the present ground, the appellant asserted that the CCTV footage did not show all of the patrons who were in the box office at the time, nor "did it show Ms Janet Dale who was a key witness ... and [the Tribunal] made judgments further upon that to state she was unreliable". In turn, this point relates to ground 8 which, in essence, alleges error in the findings made about the weight to be given to Ms Dale's evidence. Here again, I will deal with that in due course.
The area shown in the footage is that of the box office area. The camera is facing generally north. The counter is on the right of the vision, and faces Elizabeth Street on the left. That counter consists of a refreshment service area closest to the camera, with the ticket section beyond. That is where the events took place. Almost directly opposite the ticket area and on the left of the footage, there is an entrance door. Beyond that, there are two sitting areas in the top left corner, the view of parts of which is obscured. There seems to be one to the main door side of a stairway, and one on the other side. They contain lounge chairs or couches. Moving back towards the camera from the doorway, on the left there are two tables each with six seats, and then another entrance door. This is to the very bottom left of the view. It is common ground that the camera is mounted more or less above the doorway into an adjacent bookshop, generally to the south of the box office area. Ms Dale's evidence was that at the time of the initial exchange she was polishing tables along the wall with the bookstore. These must be below and to the right of the camera, but not shown in the footage.
The Tribunal described the footage in the following terms:

[48]

That exchange needs to be put in context. Beforehand, and at the very commencement of his evidence, the appellant said he had security video "to prove that Janet Dale was present at the first instant to witness that [sic] event". After the exchange, the appellant went on to explain that the DVD contains the footage of the initial five minutes of the entire incident. He said there was other footage which was not downloaded by the day manager, as it was not considered relevant. He said they kept the first five minutes of the initial incident, that being considered more than adequate for the event, and the balance of the footage would have been overwritten within three weeks. At the start of the footage being played, the appellant noted to the Tribunal that it showed him initially serving the respondent. He asked whether the Tribunal wanted him to provide commentary during the course of the playing. He was told that it could just be watched for the moment, but at some point the appellant started explaining some of the things that could be seen.
Some of the things he explained include:
- The point in the footage where Ms Dale was seen going to the bookstore entrance - "so that's the proof I wish to provide of Ms Dale being in attendance at the initial interaction".
- That there were "people sitting in the corner - you can just see their hand - and the far corner as well."
- That there were "very few people in the box office at the time apart from patrons sitting down at the two locations mentioned."
- That half way through the footage, an elderly lady is shown coming into the foyer and sitting at the bookstore side of the table close to the camera's location at the bottom left corner.
- That there was a large area "obscured" where Ms Dale was standing for the encounter; she comes into view at about two minutes and 20 seconds into the footage but she moves left and goes slightly out of camera.
Both parties made closing submissions to the Tribunal. In his submissions, the appellant referred to the CCTV footage, saying his production of that video evidence "clearly showed Ms Dale's presence". There followed an exchange between Ms Cuthbertson and him about what the footage showed in this respect and what might be made of it.
In my view it necessarily follows that the appellant was given ample opportunity to explain what he thought the footage showed and what it did not show, and what inferences might be drawn. It is correct that at the very first point at which he introduced the footage, he was told it was a matter for the Tribunal what it showed, but it was a statement with which he readily agreed, and in any event, he availed himself of two opportunities to explain what he saw to be the footage's significance. He was given the opportunity to be heard, and was heard. The ground has no merit.

[52]

The appellant tendered a written statement from Ms Dale dated 5 May 2015, and called her to give evidence. In her statement, Ms Dale says that on 3 May 2013 she was working in the vicinity of the box office and heard a woman demanding a discount on the purchase of a cinema ticket. This woman became defiant and angry when her demand was rejected, raising her voice and refusing to accept Mr Kelly's decision. "At the time, approximately 6 elderly patrons were seated at a nearby table and a number of other patrons and staff members were moving through the box office. I clearly heard Ms Pensalfini called Mr Kelly a 'fuckwit' from a distance of 5 metres." Ms Dale goes on to say that Ms Pensalfini was asked to leave but she refused to do so, and paced the box office for quite some time, harassing staff members, pleading and unsuccessfully demanding for them to sell her a ticket. Ms Dale says that during the exchange Mr Kelly did not raise his voice or become verbally aggressive, but Ms Pensalfini appeared agitated, aggressive and angry "and seemed intent on creating an unpleasant scene."
In short, Ms Dale's evidence was as follows. At the time of the incident described in her statement, she was standing near the wall with the bookshop on the right hand side of the counter as viewed from the customers' perspective. In terms of the footage, that puts her in the bottom right hand corner, but out of sight, at least initially. She was polishing tables. Her attention was drawn because she could hear a loud and quite aggressive female voice. The respondent was angry about being denied a discount on the basis of a union card. The appellant was trying to explain that the Cinema did not accept that particular union's card. The respondent became quite angry, objecting that it was discriminatory and unfair. The appellant warned her that her behaviour was inappropriate and that if she persisted, she might have to be asked to leave. At that point she remained angry and agitated.
Ms Dale said she clearly recalls the respondent calling the appellant a fuckwit. At this point Ms Dale was some five metres away. After being called a fuckwit, the appellant told the respondent that her behaviour was inappropriate, and asked her to leave the premises. After that, the respondent attempted to purchase a ticket with another card, whereupon the appellant reminded the respondent that he had asked her to go, and repeated his request for her to do so. He then walked away. The respondent went to another staff member seeking a ticket. The appellant "re-emerged", directed the member not to sell her a ticket, explaining that he had asked her to leave. The respondent did not leave at that point, but stayed for a little while longer and then walked out. The appellant was speaking loudly, as he normally does, but was not shouting or acting aggressively. Ms Dale later said that behind the counter throughout all of this, there was a female employee named Laura, that she is from the Netherlands, and had returned. (The footage shows that it was Laura to whom the respondent turned for assistance after being refused service.)
Shortly after, the respondent came back inside, and tried again to buy a ticket. At that point Ms Dale was cleaning in the bookshop near the Cinema doorway. The respondent attempted to buy a ticket from other staff and was "agitated, she was pacing up and down, talking loudly, quite aggressively, definitely causing a disturbance and creating a scene". There were elderly customers seated at a table nearby and they could overhear the respondent harassing staff and trying to get them to serve her. The appellant was not there at this time and had no dealings with the respondent. The respondent returned for a third time, again in a highly agitated state, and again paced up and down the box office, basically repeating her behaviour of the second visit.
The Tribunal dealt with Ms Dale's evidence as follows:

[59]

Of course the ground of appeal relates to the passage I have emphasised. The issue about the six elderly people at a table not being apparent from the footage- dealt with in par [65] of the Tribunal's reasons - is significant. Ms Dale's evidence was that the six elderly patrons were sitting "nearby" but did not give any evidence as to precisely whereabouts. She did not say they were very close to where she was, polishing tables. In his evidence, the appellant pointed out to the Tribunal that the footage showed patrons in corners at the top left of the vision. He described the "corner" and the "far corner". Although a little unclear, the footage appears to show three sided corner areas with the seats opposite one another. The footage shows at least two people, possible three in total, but they are sitting on couches. They cannot reasonably be described as sitting at a table.
The appellant told the Tribunal that the footage showed "very few people in the box office at the time" apart from those patrons. In particular, he did not give any evidence about patrons seated in an area not shown in the footage. Apart from late in the footage when a woman comes in and sits at one of tables with six chairs, no-one is sitting at the visible tables at any more relevant time.
Next, as to the second issue referred to in par [65], it is clear that in Ms Dale's written statement the description of the respondent pacing up and down and harassing other staff relates to the initial exchange, and before the respondent left for the first time. Accordingly her evidence conflicts with the footage. However, in her evidence, Ms Dale made no reference to that conduct on the first occasion; it is equally clear that she confined this conduct to the second and third occasions on which the respondent was in the Cinema attempting to buy a ticket. This impacts adversely on Ms Dale's credibility or reliability. It may suggest that after making her statement, and before giving evidence, Ms Dale saw the footage and, saying the least, it changed her recollection.
Apart from these two aspects of Ms Dale's evidence that the Tribunal said were in conflict with the footage, there is also the issue referred to in par [66], that of the difference in accounts between the appellant and Ms Dale as to what occurred when the respondent first tried to buy a ticket. All of these matters are sufficient to properly found the conclusions reached by the Tribunal about Ms Dale's evidence.
There are additional matters which tend to support the Tribunal's conclusions. First, as noted above, when describing that part of the incident in which the appellant walked away and the respondent sought help from a nearby employee, Ms Dale used the word "re-emerged" when describing the appellant coming back to explain that the respondent was not to be served. As I have also noted, the appellant is out of view for no more than about eight seconds. He could not have walked very far in four seconds, and he obviously was still within view, or at least earshot, of what was going on at the counter. He re-appears in the footage just starting to point at the respondent. With Ms Dale where she said she was, it is a fair inference that she would have been able to see the appellant at all times. Accordingly, the use of the word "re-emerged" is odd. It again suggests that she has watched the footage, and in turn suggests reconstruction in her evidence.
Further, the footage shows that for a short time at the very start of the episode, the staff member, Laura, is preparing what appears to be coffee for a female patron who is standing close by, waiting. Of course, Laura was the employee to whom the respondent first turned for assistance. The customer is there for about one minute and 30 seconds of the footage, before getting her drink and leaving. The point is that the footage shows the respondent apparently producing the second card, said to be the Centrelink card, to the appellant. The appellant and Ms Dale say that it was immediately before this that the appellant was called a fuckwit. At that stage, both Laura and the female customer are very close by. Although both appeared interested in what was going on at an earlier time, in the brief period before the second card is produced, each is looking away, and neither looks towards the appellant and the respondent. It might be thought that if the respondent loudly called the appellant a fuckwit, either or both would have reacted in some way but they did not.
I am not persuaded that the Tribunal erred in concluding that Ms Dale's evidence was unreliable in relation to what happened at the critical time. There are good reasons for the Tribunal taking the view it did. In the main, those reasons arise from a comparison of her evidence with the objective evidence of the footage. Additionally, of course, the Tribunal had the advantage of seeing and hearing her, as well as the appellant and the respondent. As will be seen, that is something to which I should have regard. This ground fails.

At a glance

Court

Decision date

Before

Source

Judgment (70 paragraphs)

Kelly v Pensalfini [2019] TASSC 2 (8 February 2019)

Parties

Legislation Cited (1)

Cases Cited (8)