1. Importantly, because the definition in the ACT Discrimination Act only encompasses political belief and does not refer to political activity, it is sufficient if a person holds a political belief. The 'political activity' test was relied upon extensively in the respondent's submissions in the present case. Clearly the political belief must be proved, but it is not necessary in the Tribunal's view that the applicant holds the belief with a view to changing or influencing government, which implies action or activity or pursuing a course of action. It is sufficient if the belief is one that 'bears on government' or involves the processes, policies or obligations of government, adopting the tests used in CPS Management, Nestle, Fort and Nevil Abolish.

1. For an act to be discriminatory, it must have been done 'because of' the attribute concerned, therefore section 8 of the Discrimination Act requires the applicant to establish 'a causative link between the conduct complained of and the adverse consequences for the person making the complaint'.[73]
2. Both parties relied upon the High Court judgment in Purvis v New South Wales[74] (Purvis) where the Court was dealing with a provision in the Disability Discrimination Act 1992 (Cth) and said the following about the causal link:

... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".[75]

1. The test for causation in discrimination was further considered by the NSW Appeal Panel of the Tribunal in Nicholls and Nicholls v Director General, Department of Education and Training (No.2) (Nicholls). [76] In that case the Appeal Panel stated:

...Whether or not the reason was substantial or insubstantial is not the point. The inquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision.

...Throughout its reasons, the Tribunal applied the 'but for' test and/or the substantial, dominant or main reason test. As we see it, the application of those tests constituted an error. The Tribunal should have asked itself whether the fact that the Nicholls had done one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment. [77] (emphasis added)

1. The applicant submitted that, after having found that the applicant has the attribute of 'political conviction' and has been treated 'unfavourably' by the respondent in the area of 'membership or services of a club', the question for determination by the Tribunal to ultimately find unlawful discrimination is:

Were the applicant's political convictions, either alone or in combination with other reasons, a real genuine reason for the unfavourable treatment?[78]

1. The applicant further submitted that this causal link may be established by inference from the primary facts. Such an inference can be drawn from a combination of facts, none of which viewed alone would support that inference and a fact relied upon as the basis of an inference need not be proved to the requisite standard of proof_._[79]
2. The respondent agreed with the applicant's submissions on the law of causation in a discrimination context and relied in its submissions on the real, genuine or true reasons for the decision test which was adopted in Nicholls. The respondent further submitted that Purvis makes it plain that the impugned conduct is to be looked at from the point of view of the respondent, not from the point of view of the applicant.[80] Further, the respondent submitted that Purvis established that not all behaviours associated with an attribute need to be tolerated by the party to whom they are directed, therefore where the respondent responds to behaviour out of concern to protect the welfare or reputation of those for whom it is responsible, the causal link between the underlying attribute and the unfavourable treatment is not established. In support of this proposition, the respondent relied upon Knight v CORE[81] (Knight). In that case_,_ the complainant, Mr Knight, had several A4 sheets of paper, one of which had a picture of Adolf Hitler, one with a Nazi insignia, and some other material associated with the Ku Klux Klan. The respondent prison warden confiscated these materials. The complainant alleged the materials were seized because of Mr Knight's political beliefs.
3. The application in Knight was dismissed for want of causation and the tribunal found that the applicant's case was made up of mere assertions. In the tribunal's view, the respondent had established a more probable explanation for confiscating the material, which was that it "expressed views which promoted racial hatred, racial vilification and violence, [which were] disruptive of good order in the prison system generally".[82]
4. One important limitation upon applying the Knight case in the ACT is that Victoria does not have an equivalent provision to section 4A of the Discrimination Act. As extracted above, section 4A states 'a reference to doing an act because of a particular matter includes a reference to doing an act because of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act'.
5. Section 4A has been applied in several cases by the ACT Discrimination Tribunal,[83] which was a predecessor to the present tribunal. In Almassey and Omari and ACT Multicultural Council Inc[84] President Cahill applied the test of a 'not trivial or insubstantial' reason or ground for the action, relying upon the High Court decision in IW v Perth.[85] President Cahill stated:

In IW v Perth, Kirby J discussed the effect of a similar provision in the Western Australian anti-discrimination legislation at issue in that case. Although his Honour was in dissent, the majority did not discuss the application of the provision. Kirby J said that an act will be taken to have been done on a discriminatory ground if it 'truly played a causative part' in the act and was 'not [a] trivial or insubstantial' reason or ground. I consider that this approach more closely accords with the text of s 4A(2).[86]

1. The Tribunal agrees with the applicant's submission that the question for the Tribunal is whether the applicant's political conviction is, either alone or in combination with other reasons, a real, genuine and not insubstantial reason for the unfavourable treatment. This conclusion applies the criteria in section 4A of the Discrimination Act to the Nicholls test that was relied upon by the parties in submissions. The Tribunal notes that Purvis provides an overarching question of whether the aggrieved person was treated less favourably 'because of' the person's attribute. So in determining whether the respondent has treated the applicant unfavourably because the applicant has an attribute referred to in section 7, the Tribunal will take into account all reasons for doing the act other than those that are not real or genuine or are insubstantial. Therefore, if the applicant's political conviction, either alone or in combination with other reasons, is a real, genuine and not insubstantial reason for the unfavourable treatment, then the causative element of section 8 of the Discrimination Act is satisfied.

Principles Regarding Evidence in Discrimination Matters

1. The applicant submitted that the relevant principle regarding the drawing of inferences in civil cases[87] was expressed by the High Court in Bradshaw v McEwans Pty Ltd [88] (Bradshaw) as follows:

The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as mere conjecture or surmise ...[89]

1. The respondent agreed with the applicant that the proper principles to apply are set out in Bradshaw and noted that Bradshaw is authority for the principle that the Tribunal should be concerned with probabilities, not with possibilities.[90] The respondent relied on the comments of Senior Member Lennard in Bell & De Castella and Rob De Castella's Smartstart For Kids Limited [91] that in circumstances where there is no direct evidence and the applicant relies on the drawing of inferences from primary facts, "it is not enough that the inference is a mere possibility: it must be one of probable connection .... The inference must be a logical one and not supposition." [92]
2. In Sharma v Legal Aid (Qld),[93] the Full Court of the Federal Court noted that it is unusual to find direct evidence of discrimination and the outcome of cases usually depends on what inferences may be drawn from the primary facts found. Referring to alleged racial discrimination, the Court said:

There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not; race was the reason it acted as it did .... In a case depending on circumstantial evidence, it is well established that the trier of fact must consider "the weight which is to be given to the united force of all the circumstances put together". One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone ... It is the cumulative effect of the circumstances which is important provided, of course, that the circumstances relied upon are established as facts. [94]

1. In this case, the applicant must prove his case on the balance of probabilities, however the parties were in disagreement as to whether the principle in Briginshaw v Briginshaw (Briginshaw)[95] applies. It is well settled that the principle in Briginshaw goes to the sufficiency of evidence required to discharge the civil standard. As identified by the respondent, Briginshaw is authority for the proposition that the more serious the allegation, the more weighty the evidence must be for the Tribunal to be satisfied that it is proven. As stated by Rees, Rice and Allen:

... Briginshaw is really nothing more than a warning to decision-makers to be careful about the probative value of the evidence on which they rely to make findings on the balance of probabilities when those findings have very serious consequences for the person against whom they are made.[96]

1. Although Briginshaw is routinely applied in anti-discrimination cases,[97] the applicant challenged its applicability in the present case. The applicant submitted that the allegations made by the applicant against the respondent are not of such a serious nature and the case does not involve issues of such importance and gravity to invoke the application of the Briginshaw standard_._[98] The applicant relied upon the Full Federal Court judgment in State of Victoria v Macedonian Teachers' Association of Victoria[99] (Macedonian Teachers) where the court concluded that:

...[t]he mere finding that a government has contravened a provision of an anti-discrimination statute without considering the circumstances in which the contravention occurred is not, in our view, sufficient to attract the Briginshaw test.[100]

1. The Full Court in the Macedonian Teachers case compared the case that was before them, which did not require the court to make a finding of deliberate discrimination against one section of the community in order to favour another section and where the probity of the Victorian government was not an issue, with the case of Department of Health v Arumugam[101] (Arumugam) where two prominent and highly qualified medical practitioners holding positions of trust were accused of using racist criteria in carrying out a selection process. That case required a finding of 'deliberate' discrimination for its determination and Fullagar J in Arumugam considered that such a conclusion would, if found to be true, be deserving of wide condemnation for a lack of probity in office and therefore that the Briginshaw principle would apply.[102]
2. The Full Court in the Macedonian Teachers case agreed with Fullagar J's conclusion in Arumugam but also discussed the High Court decision in G v H[103] as follows:

... Deane, Dawson and Gaudron JJ said, when considering the application of the principle to the case before them, that 'due regard must be had to the nature of the issue involved' because not every case involves issues of importance and gravity in the Briginshaw sense. They said 'the need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing'. In that case the issue involved the paternity of a child, and it was held that the principle had no application.[104]

1. The present case does not involve a finding of lack of probity or 'deliberate' discrimination, however, the respondent disagreed with the applicant's contentions about Briginshaw and relied upon Ronalds and Raper to assert that the Briginshaw test has been applied in all jurisdictions as the basis of assessing the allegations and evidence.[105] The respondent pointed to the serious consequences that potentially flow from a finding that the respondent has breached the Discrimination Act. Further, the respondent argued that the Tribunal is bound by the Federal Court judgment in De Domenico v Marshall (De Domenico).[106] In that case a predecessor to the present tribunal, the ACT AAT, applied the Briginshaw standard in a sexual harassment case. This application was upheld by the Full Federal Court.[107]
2. During the hearing, the Tribunal discussed the judgment of Branson J in Qantas Airways v Gama[108] where her Honour challenged the routine application of Briginshaw in discrimination cases_._ She stated as follows_:_

the correct approach to the standard of proof in a civil proceeding in a federal court is that for which section 140 of the Evidence Act provides. It is an approach which recognises, ... that the strength of evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved -- and, I would add, the circumstances in which it is sought to be proved.[109]

1. Section 140 of the Evidence Act 2011 (Evidence Act) states as follows:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

_(2) Without limiting the matters that the court may take into account in deciding whether it is satisfied, it must take into account - _

(a) the nature of the cause of action or defence; and

(b) the nature of the subject matter of the proceeding; and

1. Although the tribunal is not bound by the rules of evidence,[110] the parties agreed that the Tribunal should take heed of the warnings given by Branson J and apply section 140 of the Evidence Act in the present case, although recognising that the application requires some adaption for the tribunal context. The Appeal Panel of the former NSW Administrative Decisions Tribunal considered this to be the correct approach.[111] The Tribunal notes the warning of the Appeal Panel regarding the 'ritual incantation' of the Briginshaw standard in antidiscrimination cases.[112]
2. In this case, in deciding whether it is satisfied for the purposes of section 140(2) of the Evidence Act, the Tribunal must take into account that the case involves allegations that the respondent discriminated against the applicant due to his political beliefs, which may amount to unlawful conduct under Part 3 of the Discrimination Act. As argued by the respondent, a determination that it has engaged in the conduct alleged would have serious consequences for the reputation of the Club and the Board in a small world of the Croatian community in Canberra.
3. However, when assessing the gravity of the matters alleged, the Tribunal notes that this matter does not involve an allegation of fraud, or lack of probity. Although the Tribunal recognises that a finding that the respondent has treated the applicant unfavourably because of his political views does have serious consequences, its gravity is on the lighter end of the sliding scale, so it is less serious than vilification, which the NSW Appeal Panel found, in turn, to 'not sit as high in the spectrum of gravity' as the allegations in Briginshaw itself, that is, an adverse finding of adultery against a wife in public court proceedings in the 1930s.[113] Similarly the Tribunal does not consider the allegation to be as serious as an allegation of sexual harassment against a public figure, i.e. a politician, which was in issue in De Domenico. Therefore, although the Full Federal Court upheld the AAT's application of the Briginshaw standard in De Domenico, the Tribunal does not consider that it is bound by the standard of proof adopted in the particular circumstances of the De Domenico case.

1. Several Facebook posts were put into evidence by the parties in the proceedings. They have been reproduced below and have only been amended to allow for deletions.

1. In December 2010, the applicant allegedly made a post on the Club's Facebook page to the effect that the Club's staff were getting drunk behind the bar whilst working at events.[114] The posts were deleted by Mr Dzaja, the Club's Facebook administrator, in December 2010 and are no longer accessible. [115] Mr Dzaja blocked the applicant's username from making any additional posts on the website.[116]

1. On 11 January 2011, the applicant, as Justin Case, made a post on the Brisbane Croatian Centre Facebook during the Brisbane floods under the comment 'Brisbane cro centre flooded to gates' as follows.

Worry about the damage being done to the O'Connor club marija. I think Rocklea will be fine. even if it was damaged by the floods, they haven't pissed off half the community so finding volunteers to help repair it shouldn't be as hard as it is finding volunteers for "your" club.[117]

1. On 21 February 2011, the applicant (Justin Case) made a post on the Facebook page of Tonci Prusac, the editor of the Croatian Herald (Vjesniks) at the time stating:

I thought you banned Vjesniks at O'connor marija? I'm confused now ...

Danijel Kovac, stop hiding behind Justin Case. BTW - can you read? Nothing was mentioned about the Vjesnik nor O'Connor. I just wished a friend happy birthday. So stick your nose/ass somewhere else.

Yes or no Marija, a simple question for you as an uprava member. Do you or do you NOT sell the Vjesniks at the o'connor club?

So you answer is NO the club doesn't sell it. You also banned Jerko from selling it too... Marija please tell everyone you didn't!!!!! because then I can call you a liar as well!!!!

Why didn't you bring your concerns at the last AGM? Danijel you need to go talk to someone regarding your anger ...

... You banned Jerko and thats a FACT! Good thing the club members were asking for the Vjesnik and made YOU look like a fool. You can't stop him because he's not actually doing anything wrong. Don't embarrass yourself further Marija, people are just laughing at you

1. On 21 February 2011, the applicant made a post on the Justin Case Facebook page with Ms Lemic as follows:

Don't make me laugh marija. happy birthday my dear friend Tonci, btw, you and your newspaper are not welcome in MY club.

do you know how sad that sounds? Almost as sad as not letting a "dear friend" attend a funeral wake because of a stupid personal issue.....Seriously marija, you and your committe are pathetic when it comes to certain things. Some people like what you are doing, and I'll never get in the way of that, couldn't care less really as its not worth the effort.

I'm not hiding MARIJA, my contact details tell people who I am. There is an e-mail address too that has my name and were I work.

You wer'nt this cruell and heartless when Starcevic was buried, what's changed you since then?

Face the facts Marija, you cannot hold your head up in certain circles because you know you are WRONG! listen to your Father, he is a wise man; someone I respect. You are such a disapointment.... Imagine not letting someone morn the death of a mentor, a person who had great respect from everyone that knew him. A fellow Uzdanica member, a real Croatian freedom fighter! Slander..... Is that the best you can come up with? I could call you alot worse things, but that would be a waste of time, you'll just stick your head further into the sand. Its not too late for you to come to your senses![119]

1. As stated above, in April 2011, the applicant made public comments on a temporary Facebook page set up to facilitate the organisation of a protest which "expressed his displeasure at the [Mrkonjic] Board putting the Portraits back up in the main hall".[120] The post also expressed the applicant's view that members of the Mrkonjic Board had criticised War Veterans from the 1991-1995 Croatian Homeland War and expressed the applicant's belief that memorials should be erected in honour of those veterans. The post is no longer available.[121]

1. Mr Kovac provided a letter to the Commission dated 7 March 2012 where he stated the following regarding his alleged political conviction:
   1. My political ideology is based on a moderate model ... I could class myself as a Social Conservative or Christian Democrat in the sense that I'm motivated by moral standards and common sense...

The Croatian community globally can be split into very distinct and visibly polarised groups based on their political ideals and religious background. This is evidenced by the large number of clubs & communities across Australia having a different public stance on such political and or social issues; some share my political views, some will strongly oppose it. Among the vast numbers of community members, there are those that accept the current status quo in many communities, while others attempt to change the mindset of community members to be like minded. This is evidenced for example, at major sporting events with public appeals from community leaders urging Croatians not to show Ustaši paraphernalia and other extreme nationalist symbols, chants and slogans.

1. Right wing members of the Croatian community and institutions like the Australian Croatian Club can be identified by the following symbolisms and modi operandi

1. The slogan 'Za Dom Spremni' (meaning 'for the Homeland we are ready') used to precede signatures on official documents, publications, and often used as a salute after formal opening and closing speeches at certain functions and celebrated events.
2. The emphasis and highlighting of the letter U in signage, uniforms and logos (the letter U stands for Ustaša, the name given to the Croatian armed forces of WWII)

1. The weight placed on celebrating Croatia's WWII independence day [on] 10th April. These clubs will almost always provide a banquet at no cost to members to celebrate this historical event yet have been known to charge an entry fee for events that are significant to modern day Croatia.

1. Strong endorsement of ethnic nationalism, and vehement opposition to those who are outspoken about the impact their social construct has on the wider community
2. holding an annual commemoration of the death of Ante Pavelic, Croatia's WWII leader on the 28th of December
3. using the Croatian coat of arms of the WWII era as the club official coat of arms over the current version adopted in 1990

1. I do not hold any of the above ideals listed [in items a to f above] as my own. They do not form any part of my political colour, nor do I subscribe to the belief that they alone, define true Croatian values.[122]
2. Mr Leko provided a statement to the Commission on 9 March 2012.[123] In that statement he said that in order to acquire new members and broaden the appeal of the Club, the Tokic Board (on which he sat with the applicant) decided to remove the slogan 'Za Dom Spremni' from the signature block of all official club documents and did not use this salute in any official club speeches because of the implied association with sympathisers of the Ustaša regime of the Independent State of Croatia (1941 to 1945). The Mrkonjic Board elected to reinclude this salute on all official club communiqués, as evidenced in the February 2012 newsletter.[124]
3. In a further statement made on 17 April 2013 and filed in the tribunal proceedings, Mr Leko said as follows:

It is my opinion that Danijel expresses a desire to see today's newly-independent Republic of Croatia - with its current flag, coat of arms, anthem, emblems and within today's internationally-recognised boundaries (and not in one of its many historical variations) -- blossom into a democratic, tolerant and prosperous society, full of opportunity, just like we experience here in Australia. This view is based on the knowledge of Danijel's lengthy involvement with and contribution to the Croatian community in the ACT and across Australia, his unique perspective of having actually lived in the Republic of Croatia in the late nineties and my interaction with Danijel over the years since we met.

I am of the opinion that Danijel'[s] ... political opinions and beliefs were not consistent with the Club's recently implemented 'proud Croatian' strategic direction, which involves the use of flags, emblems, symbols and pictures portraying Croatian political figures dating back to the Independent State of Croatia which was established in 1941 and governed Croatia until 1945.[125]

1. Mr Zoran Sabljak,[126] Editor in Chief of the Croatian Herald or the Vjesnik, also gave evidence in the proceedings. Mr Sabljak deposed that the Croatian Herald is the most widely read Croatian newspaper outside of Croatia, and has been operating and running articles on the political views and values of the Croatian community for nearly 30 years. Mr Sabljak has known the applicant since 1984 and he testified that the applicant had been involved in various fundraising and humanitarian events on behalf of the Republic of Croatia. He has also known the applicant to be an active member of Hrvatska Uzdanica (Croatian Hope) and confirmed that the applicant subscribes to political values that are Christian Democratic as evidenced by his expressions and ongoing support for the current Republic of Croatia. His witness statement stated:

I have known Danijel to be very critical of elements in the Croatian community that have a negative impact on the public perception of the Croatian community. However, I have not known Danijel to be aggressive or threatening in his behaviour.

I was surprised to learn from Danijel that in their letter to him rejecting his membership application The Australian Croatian Club Limited had questioned and doubted his 'Croatian values'. ...

...[t]he views and values that Danijel holds are no different to ... many thousands of Croatians who share similar values.

1. Mr Dzaja gave evidence for the respondent that he wrote a letter to the CroExpress newspaper on 8 July 2010 about Croatian Homeland War veterans ('the CroExpress Letter'). In the CroExpress Letter, Mr Dzaja stated as follows, when referring to Croatian diplomats/politicians:

The hypocrisy of these people holds no bounds. One need only to ask, where were the complaints from Croatian politicians and diplomats regarding the term Za Dom Spremni, pictures of the Poglavnik, the Croatian grb and the Thompson songs when the Australian Croatian Community was sending tens of millions of dollars to assist in the war effort or building the magnificent Embassy in Canberra? ....

... what can one expect from a political elite that celebrates the 22nd June as the day when Yugo-Communists banded together with the aim of bringing down the Independent State of Croatia (i.e. the actual state, not the government) ...

... we should all be mindful of what we do when people come cap in hand seeking assistance or membership for a "worthy" Croatian cause ... [ie] the Association of Patriotic War Volunteers and Veterans; Republic of Croatia. ...

Given the key figures are such ardent supporters of the Embassy line on the Poglavnik and Grb, how Australian Croatian is that organisation? Or is it an attempt by people with questionable pasts and records to extract the last few dollars from the community at the crossroads courtesy, in part, to the actions of the political elite in the Republic of Croatia and their representative in Australia.

.. Despite the Dan Drzavnosti snubs by Biuk and Piskulic ... these people are held in awe, for no reason than they are supposed to represent Croatia. A Croatia, they seem to forget, the Australian Croatian community played such a vital role in establishing.[127]

1. The Tribunal understands that the references to Biuk and Piskulic in the final paragraph is a reference to people who were at that time respectively the Croatian Ambassador to Australia and the Croatian Consul General in New South Wales.
2. Mr Milicevic replied to Mr Dzaja by another letter to the Croexpress, which is undated but appears as attachment 5 to Mr Kovac's statement to the Commission dated 7 March 2012.[128] In that letter Mr Milicevic posed the following question to Mr Dzaja:

...is the status of a "Croatian" warranted only by exclusive support to NDH and Dr Ante Pavelic?[129]

1. The Tribunal understands the reference to NDH to be a reference to the Independent State of Croatia.
2. Finally, the Tribunal notes the newsletter distributed by the Mrkonjic Board to the Club in late January 2010 (the Newsletter). [130] In the Newsletter the Mrkonjic Board celebrated a profit for the 2008/2009 financial year. The relevant parts of the Newsletter state:

... Another particularly pleasing aspect of the result was [that] it was achieved by a Club that:

• proudly celebrated significant Croatian dates such as 10 Travanj, Antunovo, Dan Pobjede and Dan Nezavisnosti;
• _reintroduced the terms '_Za Dom Spremni' and 'Hrvatski Dom' back into the Club's vocabulary;
• returned pictures of Croatian icons such as Ante Pavelic, Ante Gotovina and Franjo Tudjman to the Club; and
• in defiance of the political correctness and naivety of today - proudly displayed the traditional Croatian Grb alongside the Republic of Croatia's flag.[131]

1. Mr Mrkonjic gave evidence that Ante Pavelic was the leader of the Ustaša movement from 1920 and was the head of the Independent State of Croatia from 1941 to 1945.[132] Mr Mrkonjic also explained the meaning of the phrase 'in defiance of political correctness proudly display the traditional Croatian Grb' in the Newsletter. He stated that the previous Croatian People's flag consisted of 25 squares with a white square in the first field. However, the government of Croatia changed the law in 1990 so it was forbidden to use the white square in the first field in the Republic of Croatia. Mr Mrkonjic disagreed with making this flag illegal because it had been a symbol that has been used throughout the history of the Croatia and by the Club since 1965, and he personally disagreed with telling people on the other side of the world that they cannot use a symbol that they have been using since birth because "it is a flag that I grew up with and I'm proud of".[133]

The Evidence Regarding the Distribution of the Croatian Herald

1. The email correspondence between Mr Dzaja and the editor of the Croatian Herald at the time, Mr Prusac, reveals that Mr Dzaja was attempting to secure more favourable commercial terms for the sale of the Croatian Herald in the Club, nevertheless, a contentious element arose during these conversations, which appeared to be related to internal disputation in the club.
2. The emails were put into evidence by the respondent and are reproduced below. They have only been amended to allow for deletions.
3. In an undated email Mr Mrkonjic proposed to Mr Prusac that the arrangements for the supply of the paper would include the following term:

The Club retains exclusivity to articles, letters and editorials regarding the Club's matters, events and/or proceedings. Any proposed articles or letters written in relation to the Club will need to be raised with the Board of Directors of the Club for review and acceptance prior to publishing.[134]

1. Mr Prusac responded to this term on 23 March 2009 as follows:

This point smacks of overt communist censorship, I am not prepared to agree to it. The Vjesnik's editorial team is the only ones who determine what will and what won't go in the Vjesnik. I don't tell you how to run your business, don't try and tell me how to do mine. Out of common courtesy, if anything negative is written about the club, I may decide to seek your version of events prior to publication. However, that ultimately is my decision as editor. I am not anyone's puppet and refuse to be one![135]

I can understand your concerns regarding the point raised. From a clarification point of view, what I would like to restrict is the publishing of financial and commercial matters ... that are discussed at an EGM or AGM of the ... Club which legally and constitutionally is a private members club. I respect the rights of the press and free speech and I also believe in the ethics of journalism. What I am trying to avoid is the repeat of recent events that had a significant impact not only on the members of our club but also the relationship between our club, various individuals and other entities including the Vjesnik.[136]

Evidence regarding the Application for Renewal of Membership/ New Application for Membership

1. Mr Leko provided a witness statement stating that he had been a member of the Club since 2006 and it was common practice for members to renew their membership at any time during the calendar year, and most certainly outside the one month window for the commencement of the calendar year as prescribed by the Club's Constitution.[137] In the Club newsletter received by Mr Leko in February 2012, the Mrkonjic Board advised members that '[r]enewal of outstanding membership would be greatly appreciated as soon as possible as this ensures the club meets its regulatory obligations'. There is no mention of a specific due date or a cut-off date.[138]
2. Mr Kovac's evidence was that "Ms Lemic presented me with a form to fill in and without paying attention to it, I assumed it was for the renewal"[139].

1. The Rejection Letter was dated 13 December 2011, but was not received by the applicant until January 2012. It was drafted by Mr Dzaja and Mr Mrkonjic on behalf of the Board. The following sets out relevant passages from the letter. The bolded passages were italicised in the original letter:

Your application was rejected for the following reasons;

1. As a non-member the application was not filled out in accordance with the membership requirements, primarily;
   1. a current member did not initially nominate you for membership (and sign the form accordingly); and
   2. a second member did not support the nomination (and sign the form accordingly).
2. You were also deemed not to be of suitable character to be a member of the Club. Examples of your unsuitable character include publically:

1. criticising and verbally attacking members of the Board of Directors of the Club whilst not even being a current member of the Club; 2. criticising the 'Proud Croatian' strategic direction of the Club;

1. posting unsubstantiated claims against the former President of the Club and

1. posting statements about internal Club matters, which you know to be false.

The Board of Directors concluded that (despite the fact that your period as Vice President and director of the Club can only be described as catastrophic) none of the above should have occurred as you should have been fully aware of and understood: .

• Club rules, by-laws and policies;
• the personal sacrifices directors and volunteers make in managing the Club affairs to ensure the general membership can continue to enjoy the benefits of Club membership; and
• the potential adverse·effects on the Club caused by public unjustified criticism of the Club and its Board of Directors.

Whilst not surprising, it remains disappointing that you (as a person who resigned your Vice Presidency mid-term leaving the clubrooms in a half renovated and unpresentable state and the Club itself essentially insolvent) have demonstrated such a blatant disregard for Club rules, by-laws and policies. In doing so, you have demonstrated the same contempt for the Club, its members, Board of Directors and Volunteers as you showed during your period in office.

... With the Club's financial position now greatly improved and its future assured, your application brings into question your motives for an application for voting membership.

The decision of the Board of Directors is final and not negotiable. ...

Finally, the Board of Directors hope that you will take time to reflect on your actions and re-evaluate whether your future standards of behaviour will align with the family-oriented values of The Australian Croatian Club Ltd. Should you be able to demonstrate you can in fact abide by such truly Croatian values, the Board may be prepared to consider any future social membership application.[140]

1. As stated above, the Rejection Letter was sent in late December 2011/ early January 2012. Mr Dzaja gave evidence that

... December is a very busy time for Club functions. If Danijel wanted to cause any trouble about the non-approval of his application, I thought I would only have time to address it in January rather than December.[141]

1. The applicant submitted that his conviction in relation to the slogans, symbols and emblems associated with the Independent State of Croatia (the portraits, slogans, symbols and emblems) is political in nature as it bears on his beliefs in regard to the form, role, function and democratic ideals of the current government of the Republic of Croatia and his opposition to the form, role, function and totalitarian ideals of the Independent State of Croatia.
2. The applicant argued that the Mrkonjic Board rejected the applicant's Application because of the applicant's alleged public opposition to their decision to put the portraits back up in the main hall and the disputes with members of the Mrkonjic Board that had arisen from that opposition. The applicant submitted that the respondent unlawfully discriminated against him when they considered his public opposition to their decision to put the portraits back up in the main hall and rejected his Application on that basis.
3. The applicant contended that his differing political views and opposition to the views held by the Mrkonjic Board led to disputes between himself and the Board members. This difference in political conviction ultimately led the Mrkonjic Board to reject his Application, thereby unlawfully discriminating against him because of his political convictions.
4. The respondent argued that it seems that the applicant has a 'conviction' about a 'belief'.[142] The respondent argued that the applicant had not established the nature of his belief about the current government of the Republic of Croatia. The respondent asserted that the applicant had made a bold statement that he supports the structure and democratic ideals of the current government of the Republic of Croatia but gave no further explanation of this form, structure or democratic ideals via documents or other witnesses. The respondent further noted that the applicant was not a member of a political party and suggested he was motivated by moral (rather than political) standards.[143]
5. The respondent further argued that the applicant's belief about the display of the portraits does not 'bear on government' because the respondent is a social club based in Canberra. The respondent argued that the applicant made a vague allegation that the dealings in relation to the portraits, slogans, symbols and emblems might be in breach of Croatian law or an alleged Embassy line but it was wildly implausible that any use of the portraits, slogans, symbols and emblems would bring about a change of government in the Republic of Croatia or otherwise have any bearing on it.
6. Thirdly, the respondent submitted that the portraits, slogans, symbols and emblems are apolitical nostalgia. They represent the desire of members to identify as Croatian as distinct from non-Croatian[144] and that the 'proud Croatian strategic direction' is not political in character.[145]
7. Finally, the respondent argued that a clear political divide between the respondent and the applicant had not been established on the evidence and in particular that the portraits, slogans, symbols and emblems were not unequivocally right-wing or totalitarian.[146]

1. The applicant submitted that the respondent treated the applicant unfavourably when the Mrkonjic Board considered the applicant's Application at the Board Meeting on 12 December 2011 and failed to accept the Application.
2. The applicant further submitted that the respondent treated the applicant unfavourably:
   • (a) in the terms or conditions by which the Mrkonjic Board was willing to accept his membership ... when the Mrkonjic Board advised the applicant in the Rejection Letter that they would only consider the applicant for a social membership if he could demonstrate that he can abide by 'truly Croatian values'; and
   • (b) by depriving him of membership or varying the terms of membership when the Mrkonjic Board failed to accept his Application and then prescribed in the Rejection Letter that the applicant would only be considered for a social membership.
3. Further, and in the alternative, the applicant submitted that he was in fact still a member of the respondent at the time when his Application was rejected by the Mrkonjic Board on 12 December 2011.
4. Clause 14 of the respondent's Articles of Association which were in force on 12 December 2011 provides:

If any member shall not have paid his annual subscription or any other sum due by him to the Club within one month after the same shall be due, he will be liable to have membership cancelled on resolution by the Committee.

1. Clause 15 of the respondent's Articles of Association, which were in force on 12 December 2011, provides that:

If any member shall wilfully refuse or neglect to comply with the provisions of the Articles of Association or By-Laws of the Club or shall be guilty of any conduct unworthy of a gentleman or likely to be injurious to the Club such member shall be liable to a fine or suspension from membership or to have his membership cancelled in accordance with a resolution of the Committee provided that at least seven (7) days before the meeting at which such Resolution may be passed he shall have had notice thereof and of the intended resolution for his fining, suspension or cancellation of membership of such resolution have had an opportunity of giving orally or in writing any explanation or defence he may think fit.[147]

1. The applicant submitted that there is no evidence before the Tribunal that a resolution was passed by the Mrkonjic Board cancelling the applicant's membership. Accordingly, the Tribunal should accept that no resolution was in fact passed by the Mrkonjic Board, meaning that his membership was cancelled in breach of the respondent's constitution.
2. The respondent argued that the Board was presented at the Board Meeting with an incomplete application form for membership by the applicant because it did not contain the details of a proposer and a seconder. An application for membership requires someone from the Club to propose and to second the application. The Board's evidence was that, when presented with the request by the applicant, in the circumstances, they could not bring themselves to endorse it. Therefore, the Board's 'unfavourable treatment' was in fact its failure to propose, second and support the incomplete Application presented to it by the applicant for consideration. This is qualitatively different to the active steps that a club might take to discipline existing member. Characterising the Board's behaviour as 'unfavourable treatment' ignores the fundamentally passive nature of the respondent's decision making at the Board Meeting on 12 December 2011. In this case, the respondent submitted, the Board was simply proceeding to determine the application on the basis of the document presented to it by the applicant.[148]

Reasons Given by the Respondent for the Rejection of the Application for Membership

1. In determining whether the respondent has treated the applicant unfavourably because of the applicant's political conviction, Purvis requires that the perspective of the respondent be considered.
2. In this case, the evidence establishes that five members of the Board were present at the Board Meeting but Ms Lemic abstained from the Decision. All four decision makers - Mr Mrkonjic, Mr Dzaja, Mr Pecar and Mr Peric - gave evidence that the Facebook posts were discussed at the Board Meeting. However, the text of the Facebook posts was not examined at the Board Meeting.[149] Mr Peric, Mr Dzaja and Mr Mrkonjic gave evidence that they regarded the posts as misleading and were personally aware that Ms Lemic had been upset by the 21 February 2011 posts. Mr Dzaja and Mr Mrkonjic gave evidence that they were concerned about the reputation of the Club in the light of the applicant's posts on the Facebook pages of the Brisbane Croatian community and of Tonci Prusac.[150] In relation to the April 2011 posts, Mr Mrkonjic and Mr Dzaja testified that it was false and misleading to state that the Mrkonjic Board had 'gone against the wishes of two thirds of the club's members who had voted to remove the pictures of the Croatian heroes' because the resolution was to transfer the pictures, not to remove them altogether.[151]
3. During cross examination, Mr Dzaja said that he felt deceived by the Tokic Board's act of taking down the pictures of various figures from Croatian history that had been part of the Club since 1969 and not displaying them elsewhere in the Club as per the 18 May 2008 resolution. Therefore the applicant's attempts to cast the 2008 portrait issue in the April 2011 Facebook posts as going against the wishes of the members was both an inaccurate account and misleading in that it failed to point out the subsequent reversal of that decision by the members of the Club six months later. The Mrkonjic Board considered that this misinformation in a public forum was damaging to the reputation of the Board.[152]
4. In response, the applicant claimed that many of the claims made in the Facebook posts were true. For example, the applicant did not claim that the Board had banned the sale of the Croatian Herald in the February 2011 post, rather that he believed it had been banned and asked Ms Lemic to verify whether this was true or not. The respondent argued that the Mrkonjic Board had not banned the sale of the Croatian Herald at the Club rather the supplier (Jerko Kovac, the applicant's father) had in fact refused to supply it to the Club in accordance with agreed terms.[153]
5. The applicant submitted that no evidence had been led from Ms Lemic about whether she felt 'attacked'[154] by the Facebook posts. Ms Lemic was the best person to give evidence of this but she was not called. Several times during the hearing, the respondent's representative referred to Ms Lemic as having some disabilities that make her especially vulnerable[155] but the failure to call her was not properly explained. Further, the Facebook posts were not made publicly, so the only people able to access the posts were relevant 'friends' of the relevant owner of the page.

Was the form that was filled out by the applicant on 22 November 2011 a renewal form or an application for membership?

1. Absent a copy of the form, the applicant submitted that the Tribunal cannot be satisfied that it was, in fact, an application for new membership as opposed to an application to renew the applicant's membership, and therefore invited the Tribunal to find that it was membership renewal rather than an application for voting membership.
2. The applicant further submitted that the Tribunal should draw an inference adverse to the respondent's contention that the Application was an application for new membership from the fact that Ms Lemic did not provide a witness statement or give oral evidence to the Tribunal in regard to this matter, or at all.
3. The applicant submitted that apart from the applicant himself, Ms Lemic was the best person to give that evidence considering that she was the person who gave the application form to the applicant and then received the completed Application back from the applicant. The failure of Marija Lemic to give evidence as a witness for the respondent was not adequately explained to the Tribunal.
4. The respondent pointed to the applicant's evidence that he was not paying attention at the time he completed his Application for 2011/2012 membership. He gave evidence that he was unsure of whether he submitted an application for new membership for 2011/2012 or a renewal form. He acknowledged that he didn't pay attention at the time and that Ms Lemic was busy serving at the bar at the time.[156] The respondent further submitted that a conclusion that the document submitted by the applicant was a membership application is supported by the minutes of the Board Meeting[157] and the fact that the Application was before the Board for approval in the first place. Pursuant to Article 5b (ii) of the Club's Articles of Association [158] only new applications for membership require Board approval. It was the evidence of several witnesses that membership renewals do not go to the Board.
5. The Tribunal examined the membership applications and renewals for the period 1 October 2011 to 17 January 2012 which were produced on subpoena by the respondent. These documents were tendered by the respondent. The Tribunal notes that there is clearly a significant difference between a membership renewal and an application for voting membership. For example, the application for voting membership contains field codes for completion by the applicant, whereas the membership renewal has open text. The application for voting membership also contains a box that has details of a proposer and a seconder.[159] There is no such requirement for the membership renewal. However, the documents produced on subpoena also demonstrate that there is some flexibility in the administration of the renewals. For example, comments on three of the membership renewals state that the members had not received a membership card for the last three years.[160] Some of the renewals do not properly document that a receipt was given for membership fees. [161] One of the renewals does not have a date.[162]
6. The Tribunal notes the applicant's evidence that he assumed that he had completed a renewal form and that Ms Lemic did not alert him to any problem regarding the completeness of the form.[163]
7. However, all of the members of the Board who were present at the Board Meeting, other than Ms Lemic, gave evidence that the Application was an application for voting membership. There were some inconsistencies in the account of that meeting given by Mr Mrkonjic and Mr Dzaja and therefore the Tribunal places less weight on their account of the meeting than the evidence given by Mr Peric and Mr Pecar. In his witness statement, Mr Peric said that he remembers something being mentioned at the Board Meeting about the applicant not filling out the form properly, [164] although he could not say absolutely that the form was not a renewal form.[165] Mr Pecar gave evidence that a membership renewal would not have been before the Board and that on his understanding it was not unusual for a long-standing member of the Club to make an application for new membership.[166] On Mr Pecar's understanding of the Club's constitution a failure to pay a membership fee would mean that the applicant's membership had lapsed under the constitution.[167] There were no inconsistencies in Mr Pecar's and Mr Peric's accounts of the Board Meeting that could not be explained by the effluxion of time and the Tribunal found them to be credible witnesses.
8. As stated above, the applicant argued that the failure of Ms Lemic to give evidence meant that the Tribunal should draw an inference based on Jones v Dunkel[168] that her evidence would not assist the respondent's case, therefore that the form before the Board Meeting was a renewal form rather than an application for voting membership. Although the Tribunal agrees that the failure of Ms Lemic to give evidence was not adequately explained, it considers that an inference that the form was a membership renewal cannot be made where it is contradicted by the evidence of credible witnesses, particularly Mr Pecar, and the evidence regarding the Board's practices for dealing with applications and renewals.
9. Therefore the Tribunal is satisfied on the balance of probabilities that the applicant submitted a new application for voting membership for the 2011/2012 year for the Board's approval on or about 22 November 2011.

1. As stated above, in deciding whether the applicant has the attribute of 'political conviction' under section 7 of the Discrimination Act, it is necessary to consider the impugned conduct from the point of view of the respondent.
2. The Tribunal finds that the applicant had a political conviction because he had a settled or strongly held belief[169] about the processes, [170] policies[171] or obligations[172] of the government of the Republic of Croatia. It was a belief that had a bearing on the form, role, structure, feature, purpose, obligations, duties or some other aspect of government.[173] It is not necessary for the applicant to establish that his political conviction is capable of bringing about a change in the government of the Republic of Croatia for it to have a bearing on government. The political conviction is not too remote merely because it involves a social club in Canberra. An important element of the applicant's political conviction in this case is that it may be distinguished from the political views of others, particularly the members of the Mrkonjic Board, as will be discussed below.
3. The Tribunal acknowledges the respondent's argument about the lack of expert evidence or documents which establish the laws, policies or practices of the current government of Croatia in relation to the portraits, slogans, symbols and emblems. No expert evidence was called by the applicant about the politics of the government of Republic of Croatia, however the Tribunal considers that the lay evidence of Mr Leko, Mr Milicevic and Mr Sabaljak was sufficient to establish the applicant's political conviction.
4. The respondent argued that Mr Leko was merely expressing an opinion and emphasised his lack of expertise in the area of politics. The Tribunal does not consider that evidence of a political conviction may only be led from expert witnesses since a political conviction, interpreted to mean a strongly held belief about processes, policies or obligations of government, may be observed by laypersons. Furthermore, Mr Leko's opinion was supported by Mr Sabaljak's evidence and the Tribunal considers that Mr Sabaljak would have some expertise in this area due to his role in running a newspaper in a very politicallyengaged community.
5. This evidence established that the applicant had a general Christian Democratic political belief and that he had a strongly-held belief about the need to display portraits, slogans, symbols and emblems that were referable to the current Croatian government as opposed to earlier regimes. These relate to the processes, policies or obligations of the Croatian government because evidence was led by both the applicant and the respondent that Croatian diplomats and politicians have made laws or, in other respects, have policies or expectations about the display of portraits, slogans, symbols and emblems. In the absence of expert evidence or documentary material, proof of this issue might have been problematic except that Mr Mrkonjic gave direct evidence of the requirements in relation to the flag[174] and Mr Dzaja's letter to the CroExpress establishes the fact that these stipulations exist, whatever their form.[175]
6. The Tribunal recognises the respondent's argument that the portraits, slogans, symbols and emblems have an historical, cultural and nostalgic significance. In particular, the Tribunal notes the respondent's argument that it wishes to (in the words of Mr Mrkonjic) 'be proud of one's culture, traditions, history, the whole lot, without actually being ashamed of any of it'[176].
7. However, in this case portraits, slogans, symbols and emblems also carry a political significance.
8. The political conviction of the applicant may be contrasted with the views of the Mrkonjic Board. The Tribunal does not accept that the Mrkonjic Board necessarily held a right wing, totalitarian political view which is inextricably linked to the right-wing elements of the Independent State of Croatia. However, the Tribunal finds that the use of the terminology 'Proud Croatian strategic direction' in the Rejection Letter and 'in defiance of the political correctness of today' in the Newsletter, encompassed a statement about the Board's political beliefs which were contrary to the applicant's political conviction. Mr Dzaja admitted in evidence that there were opposing views about the use of particular Croatian symbology.[177] The terms of the Rejection Letter, the Newsletter, the CroExpress letter and the oral testimony of Mr Mrkonjic and Mr Dzaja demonstrate that the Board to some extent opposed the stance taken by diplomats and politicians from the Republic of Croatia about the portraits, slogans, symbols and emblems. As stated in the Newsletter, they saw it as political correctness and acted in defiance of it. When asked about the meaning of the words 'political correctness' in cross-examination, Mr Dzaja's response was unimpressive, describing it as 'clumsy English,'[178] however, Mr Mrkonjic gave the clear example of the stipulations made by the Croatian government regarding the flag or grb.[179]
9. The applicant's views are consistent with the stance taken by the diplomats and politicians from the Republic of Croatia about the portraits, slogans, symbols and emblems. The Tribunal infers that the applicant held the views that the Mrkonjic Board identified as 'political correctness' which they expressly 'defied' in the Newsletter.
10. There was evidence that other people in the Club shared the applicant's political conviction, for example the minutes of the Interim Board of 23 September 2008, involving TP, [180] when Mr Mrkonjic moved a motion that the portraits return to the main hall. TP stated that she did not believe the Board would have the majority of support from the members of the Club for that decision. So the Tribunal infers that the Mrkonjic Board were aware that certain members of the Club shared the applicant's views regarding the portraits, and that rejecting his application for membership would have ramifications. The Tribunal further infers that this was a reason why the Board destroyed the application for membership, as discussed below.

1. Although the Rejection Letter referred to examples of behaviour which had occurred 'publicly' that the Club relied upon to 'deem' the applicant to be of unsuitable character, the evidence about the alleged public nature of the behaviour was equivocal. Mr Mrkonjic and Mr Pecar had some background knowledge of the Facebook posts, but during the Board Meeting, the text of the posts was not provided to the Board and the Board relied upon Mr Dzaja for information about the technology and the content of the posts.[181] During cross-examination, Mr Dzaja stated that Tonci Prusac's Facebook page probably had about '2000 members'. He then stated about 1000 people would have seen the post made by the applicant on 21 February 2011 and then he suggested that 'these things go viral'.[182] Upon being questioned by the Tribunal, he withdrew this description. Considering that Mr Dzaja was the Facebook administrator for the Club, presumably with some understanding of this technology, this evidence demonstrated a tendency to exaggerate. Mr Peric's evidence was that there was 'a brief discussion about Danijel bad-mouthing how the club was being run', and that he did not remember the specifics of any examples given at the meeting.[183]
2. The Tribunal is not satisfied that the Mrkonjic Board believed as a collective body that the posts were made publicly although they clearly believed there was some dissemination of information by the applicant within the Croatian community. Related to this point is the statement made in the Rejection Letter about the applicant posting unsubstantiated claims against the former president i.e. Mr Tokic. The Tribunal considers that this statement also exaggerated the effect of the comments that had been made on the Facebook posts.
3. The Tribunal also finds that the respondent's evidence of its belief that the applicant had caused the Club's difficult financial situation was overstated. The Club's financial situation was already perilous before the applicant volunteered to go onto the board in 2008 and the members of the Mrkojnic Board were aware of some of the initiatives that the Tokic Board undertook to attempt to redeem the Club's position.[184] It is also very likely that the members of the Mrkonjic Board were aware of the Business Review issued on 4 August 2008, only weeks before the Mrkonjic Board first assumed leadership of the Club on 21 September 2008. The Business Review explained that the Club's misfortunes had been occurring since at least 2004.
4. The respondent argued that the Mrkonjic Board was concerned about the alleged mismanagement of some renovations of the Club during the period that the applicant was on the Tokic Board but no direct evidence was led about the renovations.
5. Clearly the applicant's behaviour was strident but some of the comments on the Facebook posts were true or at least have not been established to be untrue e.g. the allegation that staff or volunteers were drinking behind the bar and the actions of the Mrkonjic Board in not allowing the applicant's 'dear friend' (who was in fact his brother) to attend the wake. As regards the posts about the Croatian Herald, the Tribunal finds that a dispute had arisen about the distribution of the Croatian Herald in the Club and although it was not strictly banned, there was some miscommunication between the parties about its sale in the Club and notes that the applicant's Facebook post on this point was posed as a question rather than a statement, although its tone was accusatorial.
6. The Tribunal finds that the Mrkonjic Board did have a genuine concern about the applicant 'bad-mouthing' the Club's administration but the evidence did not establish whether the members of the Board acted to protect their own administration or the Club itself. Although there were understandable concerns about the applicant harassing Ms Lemic, as discussed above, there was no evidence led from Ms Lemic about her reaction to the Facebook posts. The evidence relied upon by the respondent that Ms Lemic 'felt attacked' was second and third hand. There was no evidence of violent or threatening behaviour by the applicant[185] and there was substantial evidence of him having family values consistent with this aspect of the Club's philosophy.[186]
7. The Tribunal finds that there was no discussion about photographs displaying the Nazi flags at the Board Meeting. Mr Mrkonjic gave evidence that the photographs caused him to question whether the applicant was of the right kind of character for membership of the respondent[187] and that he had briefly raised the issue of the photographs at the meeting.[188] Mr Dzaja's evidence was that he had no independent recollection of the photographs being discussed, yet he was prepared to rely on Mr Mrkonjic's evidence. His answers during crossexamination were clearly predicated on having seen Mr Mrkonjic giving evidence earlier in the day.

So you were aware of these photographs at the time that you were meeting on 12 December 2011 to discuss Daniel Kovac's application?---I was aware of them yes, yes.

Yes. Were those photos discussed?---I heard Ante Mrkonjic's statement today. I can't recall that but if they were they were.

Okay?---I mean if Ante says they were they were.[189]

1. Mr Pecar specifically stated that he did not recall any objections or issues being raised at the meeting, other than the objections relating to the Facebook comments. [190] The issue was not mentioned in Mr Peric's evidence.
2. It is inconceivable that the witnesses other than Mr Mrkonjic would not independently recall discussion of such inflammatory material.
3. The applicant was not cross-examined by the respondent about the photographs, and although the applicant did not seek leave to adduce further evidence about them, the Tribunal considers that the photographs were raised by Mr Mrkonjic in an attempt to discredit the applicant.

Did the Board know about the Applicant's Political Conviction before the Board Meeting?

1. The Tribunal finds that the Mrkonjic Board knew about the applicant's political conviction at the Board Meeting. It is clear that the members of the Mrkonjic Board were all closely involved with the Club during the term of Tokic Board and were aware that the applicant was a member of that board and was involved in the drafting of the Explanatory Statement which stated the political views of the Tokic Board which coincided with those of the applicant. [191]
2. Mr Mrkonjic and Mr Dzaja gave evidence that they were aware of the original decision by the Tokic Board, while the applicant was Vice-President, to remove the portraits and stop using the slogans, symbols and emblems associated with the Independent State of Croatia.[192] In fact, they gave evidence that almost immediately after being appointed to the Mrkonjic Board, they began a program of reinstating the use of the slogans, symbols and emblems by the respondent and decided to put the portraits back up in the main hall.[193]
3. The members of the Mrkonjic Board all gave evidence that they discussed the Facebook posts at the Board Meeting and at least one of those posts expressed the applicant's political conviction. This is the post dated April 2011 on the temporary Facebook page where the applicant expressed his displeasure at the Mrkonjic Board putting the portraits back up in the main hall.

Did the Board Consider the Applicant's Political Conviction at the Board Meeting?

1. The Tribunal is satisfied that the Board did consider the applicant's political conviction at the Board Meeting and infers that one of the reasons the Board refused the applicant's Application was because of his political conviction.

1. The Mrkonjic Board was aware of the applicant's political conviction, as discussed above.
2. The evidence of all of the members of the Board who testified said that they discussed the Facebook posts at the Board Meeting.

1. The Rejection Letter stated that the applicant was of an unsuitable character because he 'criticised the 'proud Croatian_'_ strategic direction of the Club'.[194] The Tribunal considers that the 'proud Croatian strategic direction' is a reference to the political views of the Board expressed in the Newsletter.

1. The evidence of the Board members (other than Ms Lemic) was that they were annoyed about the statements made by the applicant in the Facebook posts that the actions of the Mrkonjic Board had 'pissed off' two thirds of the members of the Club. This evidence, in combination with the evidence given by Mr Leko and Mr Milcevic, and the minutes of the Interim Board meeting on 23 September 2008 where TP referred to the sensitivity associated with reinstating the portraits,[195] demonstrates that the issue was regarded as politicised by certain members of the Club.
2. The Board had demonstrated its own opposition to political correctness and celebrated the reintroduction of the slogan 'Za Dom Spremni' in the Newsletter in January 2010, even though they were aware that the members of the former Tokic Board had stopped using it because of an implied association with sympathisers of the Ustaša regime. The respondent made no submissions about this Newsletter which might convince the Tribunal to regard it other than as a clear political statement.
3. Mr Dzaja demonstrated his opposition to the protocols that had been established about the display of emblems by the Republic of Croatia in the CroExpress letter of 8 July 2010. Again, the respondent made no submissions about this CroExpress letter which might convince the Tribunal to regard it other than as a clear political statement.
4. The Board was concerned to quell opposition to its proud Croatian strategic direction and this direction included a political statement about the display of portraits, slogans, symbols and emblems. That direction was in defiance of the protocols that have been established by the diplomats and politicians from the Republic of Croatia.
5. The Board required the applicant to abide by 'truly Croatian values' before it would consider any future social membership application. The Tribunal accepts that this term might express certain family values, but it is not an innocuous term because it stipulates a standard that the applicant was obliged to attain before being permitted to return to the Club even with a social membership, therefore, it is satisfied on the balance of probabilities that it contains a political element.
6. The Board destroyed the applicant's Application for voting membership. As stated above, the Board was aware of the political sensitivity associated with excluding the applicant from the Club and the consequential effect upon the members of the Club who shared his political views. Therefore, in combination with the delay in notifying him about the rejection of his application, the destruction of the application form was designed to dampen any opposition from the applicant and within the Club.
7. The respondent argued that the Application was destroyed because of concerns about privacy. This was the only time that an application for membership had been destroyed by the Club. Given the assiduous record-keeping demonstrated by the members of the Mrkonjic Board, the Tribunal is not satisfied that the document was destroyed because of concerns about the applicant's privacy.

1. Therefore, the Tribunal concludes that, for the purposes of section 8 of the Discrimination Act, the applicant's political conviction, in combination with other reasons, was a real, genuine reason for his treatment by the respondent at the Board Meeting on 12 December 2011.

1. Was the applicant treated unfavourably for the purposes of section 8 of the Discrimination Act?
2. The Tribunal accepts the applicant's submissions that the respondent treated the applicant by unfavourably by:
   • (a) varying the terms of membership when the Mrkonjic Board failed to accept his Application and then prescribing in the Rejection Letter that the applicant would only be considered for a social membership and/or
   • (b) imposing a term or condition in the Rejection Letter indicating they would only consider the applicant's social membership if he could abide by 'truly Croatian values'.
3. The Tribunal does not accept the respondent's argument that its reticence to propose and second the applicant's Application was a passive exercise of power that was qualitatively different from 'unfavourable treatment'. Contrary to the respondent's statement in its Rejection Letter, the applicant's membership did not automatically lapse after he had failed to renew his membership within an unspecified period determined by the discretion of the Board. Therefore, the applicant was still a member of the respondent at the time he submitted his Application on 22 November 2011 and also at the time his Application was rejected by the Mrkonjic Board on 12 December 2011. As a continuing member, the applicant was entitled under clauses 14 and 15 of the Articles of Association of the Club to have his membership cancelled by a resolution by the Board.[196] These clauses are extracted above. There is no evidence that such a resolution was passed in relation to the applicant.
4. The Tribunal's examination of the membership records showed that flexibility was given by the respondent in the renewals of memberships, including the timing thereof, even after the resolution to change the renewal date was passed in December 2008. The applicant was shown this flexibility, perhaps even leniency, in renewing his membership in 2010.
5. There was evidence that disciplinary actions had previously been taken by the Board including in relation to Stan Kovac who had been accorded 'due process' by the Board by being given notice of a proposed suspension and an opportunity to make submissions even though there was an allegation of aggressive behaviour.[197] There was no evidence that any other member had had their voting membership removed by a 'final and not negotiable' decision of a board of directors of the Club.
6. As stated above, the term of the Rejection Letter that required the applicant to demonstrate 'truly Croatian values' stipulated a standard that the applicant was obliged to attain before being permitted to return to the Club even with a social membership. There was no evidence that any previous member had been subjected to this condition. The content of this obligation and how it was to be determined was unclear.
7. The Tribunal concludes that the respondent treated the applicant unfavourably by cancelling his membership without complying with the Articles of Association, thereby depriving him of his membership (section 22(2)(d) of the Act), failing to accept his application for voting membership (section 22(2)(b) of the Act) and offering an inferior form of membership, that is, a social membership, and attaching an onerous condition upon any future application that the applicant might make for the inferior form of membership (section 22(2)(a) of the Act).

Other matters - Unfavourable treatment due to refusal of service?

1. The applicant alleged that members of the Mrkonjic Board ignored the applicant and denied him service at a film screening which took place in October 2010.[198] Mr Milicevic gave evidence that he was present at that film screening and witnessed certain treatment of the applicant by the members of the Mrkonjic Board. Mr Milicevic stated that Mr Mrkonjic finished serving everyone else who had approached the bar thereby disregarding the fact that they approached the bar well after the applicant and he had concluded that Mr Dzaja would not sell a DVD to the applicant.
2. Although there was some confusion by witnesses for the respondent about the date of the film screening, the Tribunal accepts the evidence of Mr Djaza that he was setting up a stall and he asked the applicant to wait so as to avoid a rush[199] as well as the evidence of Mr Mrkonjic that he served all the members and their invited guests, including the applicant, within a half-hour period prior to the screening. [200]
3. The Tribunal is not satisfied that the respondent was denied service by Mr Dzaja or Mr Mrkonjic on that occasion.

1. The applicant outlined the impact upon himself and his family that has resulted from the respondent's Decision, which included:

(a) denial of his right to attend general and extraordinary meetings to vote on matters pertaining to the respondent;

(b) restricting the number of times he can visit the respondent's premises to attend social events and interact with other members of the community; and

(c) excluding the applicant's family members from attending events held at the respondent's premises.[201]

1. The Tribunal makes no findings at this stage of the proceedings about the detriment suffered by the applicant although the evidence clearly demonstrated that the social membership offered by the respondent subject to a condition of the applicant demonstrating 'truly Croatian values' did not allow him to vote at meetings of the club.[202]

1. The Tribunal has found that the respondent unlawfully discriminated against the applicant pursuant to sections 8 and 22 of the Discrimination Act 1991 by treating the applicant unfavourably because of the applicant's political conviction by the Board's conduct prior to, including and subsequent to the refusal of his application for membership of the respondent at the Board Meeting on 12 December 2011.
2. As a consequence of this finding, the Tribunal has ordered that the matter be listed for further directions to consider the further orders that Tribunal must make pursuant to section 53E of the Human Rights Commission Act.

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] Article 44 of the Articles of Association, applicant's tender bundle at page 51

[2] Witness Statement of Kovac dated 7 March 2012, applicant's tender bundle at page 1

[3] Witness Statement of Leko dated 17 April 2013, applicant's tender bundle at page 28

[4] Witness Statement of Kovac dated 7 March 2012, applicant's tender bundle at page 1

[5] Witness Statement of Leko dated 17 April 2013, applicant's tender bundle at page 28

[6] Extract from Member's Register, Attachment J to Further Witness Statement of Mrkonjic dated 14 May 2013, respondent's tender bundle at page 198

[7] EGM Meeting minutes of 27 May 2007, respondent's tender bundle at page 1

[8] Witness Statement of Kovac dated 2012 applicant's tender bundle at page 3

[9] The Australian Croatian Club Limited Business Review of 4 August 2008, applicant's tender bundle at pages 15-18

[10] Board meeting minutes of 29 May 2007, respondent's tender bundle at page 14

[11] Profit and Loss Statements, respondent's tender bundle at page 119

[12] Receipt, Attachment K to Further Witness Statement of Mrkonjic dated 14 May 2013, respondent's tender bundle at page 198

[13] Notice of AGM, Attachment O to Further Witness Statement of Mrkonjic dated 14 May 2013, at page 68, respondent's tender bundle at page 206

[14] Explanatory statement for the AGM of May 2008, applicant's tender bundle at pages 113-116

[15] AGM Meeting Minutes, Attachment O to Further Witness Statement of Mrkonjic dated 14 May 2013 at page 77, respondent's tender bundle at page 223

[16] Letter of Resignation, Attachment D to Further Witness Statement of Mrkonjic dated 14 May 2013 at page 17, respondent's tender bundle at page 163

[17] Applicant's tender bundle at page 17

[18] Attachment A to Further Witness Statement of Mrkonjic dated 14 May 2013, respondent's tender bundle at pages 153-154

[19] Attachment A to Further Witness Statement of Mrkonjic dated 14 May 2013, respondent's tender bundle at page 154 ff

[20] Attachment A to Further Witness Statement of Mrkonjic dated 14 May 2013, respondent's tender bundle at page 154

[21] Respondent's tender bundle at page 158

[22] Respondent's tender bundle at page 158 at 7.25

[23] Respondent's tender bundle at page 158-159

[24] Attachment B to Further Witness Statement of Mrkonjic dated 14 May 2013 at page 10, respondent's tender bundle at pages 157-158

[25] Profit and Loss Statements, respondent's tender bundle at page 120

[26] Attachment C to Further Witness Statement of Mrkonjic dated 14 May 2013 at pages 15 and 16, respondent's tender bundle at pages 161-162

[27] Transcript, 28 May 2013, at pages 137-139

[28] Transcript, 28 May 2013, at pages 133-134

[29] Membership renewal slip, Attachment L to Further Witness Statement of Mrkonjlc dated 14 May 2013, respondent's tender bundle at page 200

[30] Email correspondence, Attachment U to Further Witness Statement of Mrkonjic dated 14 May 2013, respondent's tender bundle at pages 233-234

[31] Profit and Loss Statements, respondent's tender bundle at page 121

[32] Attachment C to Further Witness Statement of Dzaja dated 14 May 2010, respondent's tender bundle at page 139

[33] Respondent's tender bundle at page 127

[34] Attachment M to Further Witness Statement of Mrkonjic dated 14 May 2013 at page 55, respondent's tender bundle at page 201

[35] Profit and Loss Statements, respondent's tender bundle at page 122

[36] Attachment V to Further Witness Statement of Mrkonjic dated 14 May 2013 at pages 93 and 94, respondent's tender bundle at pages 239 and 240

[37] Board Meeting minutes of 2 November 2010, respondent's tender bundle at page 51

[38] The Australian Croatian Club Ltd Board of Directors meeting of 30 November 2010, applicant's tender bundle at page 104

[39] Attachment C to Witness Statement of Leko dated 9 March 2012, applicant's tender bundle at pages 23, 27

[40] Transcript, 28 May 2013, at pages 122-123

[41] Applicant's submissions dated 6 June 2013 at [133]

[42] Further Witness Statement of Dzaja dated 14 May 2013 at [19], respondent's tender bundle at page 131

[43] Profit and Loss Statements, respondent's tender bundle at page 123

[44] Respondent's tender bundle at page 78

[45] Applicant's tender bundle at page 148

[46] Applicant's tender bundle at page 107

[47] Transcript, 27 May 2013, Examination in Chief of Mrkonjic, page 97 at lines 35-40, Transcript, 28 May 2013, Cross Examination of Mrkonjic, page 148

[48] Applicant's tender bundle at page 149

[49] Further Witness Statement of Dzaja dated 14 May 2013 at [38], Respondent's tender bundle at page 133

[50] Applicant's tender bundle at page 151

[51] Applicant's tender bundle at page 169

[52] Applicant's tender bundle at page 171

[53] Respondent's submissions dated 14 June 2013 at [9] and [10].

[54] Respondent's submissions dated 14 June 2013 at [8] to [12]

[55] [2012] ACAT 10

[56] Harrison [2012] ACAT 10 at [50]

[57] Macquarie Dictionary (6th Edition) 2013

[58] Nestle Australia Ltd v The President and Members of the Equal Opportunity Board [1990] VicRp 71; [1990] VR 805 at 815

[59] Nestle Australia Ltd v The President and Members of the Equal Opportunity Board [1990] VicRp 71; [1990] VR 805 at 819

[60] [1991] VicRp 50; [1991] 2 VR 107

[61] [1991] VicRp 50; [1991] 2 VR 107 at pages 111-112

[62] (1991) EOC 92-357

[63] (1991) EOC 92-357 at 78, 446

[64] (1991) EOC 92-357 at 78, 446

[65] [2012] QCATA 150

[66] [2012] QCATA 150 at [106]

[67] [2012] QCATA 150 at [106]

[68] [2012] QCATA 150 at [106]

[69] [1997] VADT 44

[71] [2010] ACAT 10 at [53]

[72] [1997] VADT 44 at 2.4

[73] Nester v ACT Fire Brigade [2004] ACTDT 2 at [71]

[74] [2003] HCA 62; (2003) 217 CLR 92

[75] [2003] HCA 62; (2003) 217 CLR 92 at [236]

[76] [2009] NSWADTAP 20

[77] [2009] NSWADTAP 20 at [36]- [37]

[78] Applicant's submissions dated 6 June 2013 at [72]

[79] Dutt v Central Coast Area Health Service [2002] NSWADT 133

[80] [2003] HCA 62; (2003) 217 CLR 92, per Gleeson CJ at [13]

[81] [2002] VCAT 731

[82] [2002] VCAT 731 at [41]- [45]

[83] Kwesius and ACT Health [2008] ACTDT 3; Almassey and Omari and ACT Multicultural Council Inc [2008] ACTDT 2; Whiting and ACT Health and Calvary Health Care (ACT) Ltd [2008] ACTDT 1

[84] [2008] ACTDT 2

[85] [1997] HCA 30; (1998) 191 CLR 1 at [63]

[86] [2008] ACTDT 2 at [21]

[87] Applicant's submissions dated 6 June 2013 at [47]

[88] (1951) 217 ALR 1

[89] (1951) 217 ALR 1 at page 5

[90] Respondent's submissions dated 14 June 2013 at [30]

[91] [2013] ACAT 27

[92] [2013] ACAT 27 at [18]

[93] [2002] FCAFC 196

[94] [2002] FCAFC 196 at [40]- [41]

[95] [1938] HCA 34; (1938) 60 CLR 336

[96] Rees, Rice and Allen, Australian Anti-Discrimination Law (2nd edition, 2014) at page 151

[97] L De Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: Pointing with a Wavering Finger' [2003] MelbULawRw 13; (2003) 27 Melbourne University Law Review 308 at page 312

[98] Applicant's submissions dated 6 June 2013 at [64]

[99] [1999] FCA 1287; (1999) 91 FCR 47

[100] [1999] FCA 1287; (1999) 91 FCR 47 at 51

[101] [1988] VicRp 42; [1988] VR 319

[102] [1999] FCA 1287; (1999) 91 FCR 47 at 50

[103] [1994] HCA 48; (1994) 181 CLR 387

[104] [1999] FCA 1287; (1999) 91 FCR 47 at 50 discussing G v H [1994] HCA 48; (1994) 181 CLR 387 at 399

[105] Ronalds, and Raper, Discrimination Law and Practice (4th edition, 2012) at 193

[107] [1999] FCA 1305 per Madgwick J at [16], [17] and [22]

[108] [2008] FCAFC 69; (2008) 167 FCR 537

[109] [2008] FCAFC 69; (2008) 167 FCR 537 at 577

[110] Section 8 ACT Civil and Administrative Tribunal Act

[111] Burns v Laws [2008] NSWADTAP 32

[112] Burns v Laws [2008] NSWADTAP 32 at [136]

[113] Burns v Laws [2008] NSWADTAP 32 at [137]

[114] Further Witness Statement of Dzaja dated 14 May 2013 at [9] and [13], respondent's tender bundle at page 130 and Transcript, 28 May 2013, Examination in Chief of Dzaja, page 180 at lines 3-20

[115] Further Witness Statement of Dzaja dated 14 May 2013 at [13], respondent's tender bundle at page 131 and Transcript, 28 May 2013, page 180 at lines 22-24

[116] Further Witness Statement of Dzaja dated 14 May 2013 at [13], respondent's tender bundle at page 131

[117] Applicant's tender bundle at page 139

[118] Applicant's tender bundle at pages 140-141

[119] Applicant's tender bundle at page 142

[120] Applicant's submissions dated 6 June 2013 at [133]

[121] Further Witness Statement of Dzaja dated 14 May 2013 at [19], respondent's tender bundle at page 131

[122] Applicant's tender bundle at pages 1-2

[123] Applicant's tender bundle dated at page 23 ff

[124] Applicant's tender bundle at page 127

[125] Applicant's tender bundle at page 29

[126] Witness Statement of Sabljak dated 15 April 2013, applicant's tender bundle at page 32

[127] Witness Statement of Kovac dated 7 March 2012, Attachment 4, applicant's tender bundle at page 13.

[128] Witness Statement of Kovac dated 7 March 2012, Attachment 5, applicant's tender bundle at page 14

[129] Witness Statement of Kovac dated 7 March 2012, Attachment 5, applicant's tender bundle at page 14

[130] Transcript, 28 May 2013, pages 126-127

[131] Applicant's tender bundle at page 123

[132] Transcript, 28 May 2013, page 128

[133] Transcript, 28 May 2013, page 129

[134] Respondent's tender bundle at page 237

[135] Respondent's tender bundle at page 236.

[136] Respondent's tender bundle at page 235

[137] Witness Statement of Leko dated 9 March 2012, applicant's tender bundle at page 23

[138] Witness Statement of Leko dated 9 March 2012, applicant's tender bundle at page 24

[139] Witness Statement of Kovac dated 7 March 2012, applicant's tender bundle at page 2

[140] Applicant's tender bundle at pages 149 - 150

[141] Witness Statement of Dzaja dated 14 May 2013, respondent's tender bundle at page 133

[142] Respondent's outline of closing submissions dated 20 June 2013 at [9]

[143] Respondent's outline of closing submissions dated 20 June 2013 at page 3

[144] Respondent's outline of closing submissions dated 20 June 2013 at page 5

[145] Respondent's outline of closing submissions dated 20 June 2000 at page 6

[146] Respondent's outline of closing submissions dated 20 June 2013 at page 7

[147] Applicant's tender bundle at pages 45-46

[148] Respondent's submissions dated 14 June 2013 at [80] and [99]

[149] Transcript 28 May 2013, Cross Examination of Dzaja page 201

[150] Further Witness Statement of Mrkonjic dated 14 May 2013 at [35], respondent's tender bundle at pages 130 ff; Further Witness Statement of Dzaja dated 14 May 2013 at [19][24] respondent's tender bundle at p147 ff; and respondent's submissions dated 14 June 2013 at [11] of chronology at page 32

[151] Further Witness Statement of Mrkonjic at [35]; Further Witness Statement of Dzaja at [19]-[24] -and respondent's submissions dated 14 June 2013 at [19] of chronology at page 34

[152] Further Witness Statement of Mrkonjic at [30]-[35]; Further Witness statement of Dzaja at [19]-[24], and respondent's submissions dated 14 June 2013 at page 34 at [25] of chronology

[153] Further Witness Statement of Dzaja dated 15 May 2013 at [16]-[18], respondent's tender bundle at page131

[154] Transcript, 27 May 2013, Examination in Chief of Mrkonjic, pages 101 - 105

[155] Transcript, 20 June 2013, page 270

[156] Respondent's submissions dated 14 June 2013 at [97]

[157] Respondent's tender bundle at page 226

[158] Applicant's tender bundle at page 43

[159] Respondent's tender bundle at page 104

[160] Respondent's tender bundle at pages 83, 84 and 85

[161] Respondent's tender bundle at pages 89, 90, 91, 93, 94, 97 (illegible), 98, 99, 100 (illegible), 105, 106 and 107

[162] Respondent's tender bundle at page 116

[163] Transcript 27 May 2013, Examination in Chief of Kovac, page 45-46

[164] Witness Statement of Peric dated 13 May 2013 at [5], respondent's tender bundle at page 128

[165] Transcript, 28 May 2013, page 174

[166] Transcript, 28 May 2013, page 166

[167] Transcript, 28 May 2013, page 167

[168] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

[169] Harrison & Commissioner for Social Housing in the ACT and Minister for Community Services and Minster for Aboriginal and Torres Strait Islander [2012] ACAT 10

[170] Nestle Australia Ltd v The President and Members of the Equal Opportunity Board [1990] VicRp 71; [1990] VR 805 at 819

[171] Ralph Lee v Fort (1991) EOC 92-357

[172] Nevil Abolish Child Support v Telstra Corporation Limited [1997] VADT 44

[173] CPS Management v The President and Members of the Equal Opportunity Board [1991] VicRp 50; [1991] 2 VR 107 at [15]

[174] Transcript, 28 May 2013, page 129

[175] Applicant's tender bundle dated at page 13

[176] Transcript, 28 May 2013, Examination in Chief of Mrkonjic, page 118

[177] Transcript, 28 May 2013, Cross Examination of Dzaja, page 197

[178] Transcript, 28 May 2013, page 195.

[179] Transcript, 28 May 2013, page 129

[180] Respondent's tender bundle at page 159

[181] Transcript, 28 May 2013, Cross Examination of Pecar page 166; Further Witness Statement of Mrkonjic dated 14 May 2013 at [22], respondent's tender bundle at page 148

[182] Transcript, 28 May 2013, page 202

[183] Witness Statement of Peric dated 15 May 2013 at [8], respondent's tender bundle at page 128

[184] President's Report 2006 - 2007, applicant's tender bundle at pages 117 - 120

[185] Witness Statement of Leko dated 17 April 2013 at [17], applicant's tender bundle at page 29; Witness Statement of Sablijak dated 17 April 2013 at [9], applicant's tender bundle at page 32

[186] Witness Statement of Leko 17 April 2013 at [13]-[14], applicant's tender bundle at page 29

[187] Transcript, 27 May 2013, Examination in Chief of Mrkonjic, page 109 at lines 27-29

[188] Further Witness Statement of Mrkonjic dated 14 May 2013 at [40], respondent's tender bundle at page 150

[189] Transcript, 28 May 2013, page 198

[190] Witness Statement of Pecar dated 13 May 2013 at [12], respondent's tender bundle at page 146

[191] Explanatory statement, April-May 2008, applicant's tender bundle page 113 -116

[192] Transcript, 28 May 2013, Cross-examination of Mrkonjic, page 130

[193] Applicant's tender bundle at page 123

[194] Applicant's tender bundle at page 149

[195] Minutes of the meeting of the Interim Working Committee on 23 September 2008, Respondent's tender bundle at pages 158-159

[196] Articles 14 and 15 of the Articles of Association, applicant's tender bundle at pages 4546

[197] Board Meeting minutes of 2 November 2010, respondent's tender bundle at page 51

[198] Transcript 27 May 2013, Examination-in-Chief Milicevic, pages 80-81

[199] Transcript, 28 May 2013, pages 190-191

[200] Witness Statement of Mrkonjic dated 23 February 2013 at page 3

[201] Kovac Statement to the Human Rights Commission dated 17 May 2012, applicant's tender bundle at page 21.

[202] Transcript, 20 June 2013, page 272