1. In its Outline of Submissions dated 23 September 2020, under Preliminary Procedural Matters, the Respondent objected to the Applicants Further Particulars of Claim to the extent that they included the following claims, contrary to Directions 1 and 2 made by Senior Member Burdon-Smith on 23 January 2020:

1. allegations of victimisation in contravention of s 104 of the Equal Opportunity Act 2010 (Vic) (EO Act); 2. authorising or assisting discrimination in contravention of s 105 of the EO Act; and

1. An additional attribute under s 6(q), namely 'personal association'.
2. For the reasons more fully given in the Hearing, I am satisfied that:

1. Direction 1 was not intended to exclude reliance by the Applicants upon an alleged contravention of s 104 of the EO, as otherwise included in the initial Particulars of Claim dated 5 January 2020; 2. Direction 1 does not contemplate the additional claim based upon contravention of s 105 of the EO Act; and

1. The additional attribute under 6(q) is consistent with and complementary to the other attributes already specified.
2. Accordingly, the Further Particulars of Claim are consistent with Directions 1 and 2 except for the additional alleged contravention under s 105 of the EO Act. Any reference to s 105 and any allegations or incidents referable to s 105 shall be treated as deleted from the Further Particulars of Claim.
3. I further confirm, that having regard to the evidence sought to be relied upon by the Applicants, there is no possibility that the Respondent could be found to have contravened s 105 of the EO Act.

1. The Respondent shall file and serve any written submissions by close of business on Friday 16 October 2020.
2. The Applicants shall file and serve any written submissions by close of business on Monday 9 November 2020.
3. The Respondent may file and serve any Reply to the Applicants submissions by close of business on Monday 30 November 2020.
4. Liberty to apply.
5. At the request of the parties, the following Orders were made on 14 October 2020:

Orders 1 to 3 made on 29 September 2020 are amended as follows:

1. The Respondent shall file and serve any written submissions by close of business on Friday 23 October 2020.
2. The Applicants shall file and serve any written submissions by close of business on Monday 16 November 2020.
3. The Respondent may file and serve any Reply to the Applicants submissions by close of business on Monday 7 December 2020.

1. The Tribunal is empowered to deal with the Claim under s 122 of the EO Act.
2. Section 122 of the EO Act provides:
   1. Application may be made to Tribunal in respect of dispute

A person may make an application to the Tribunal in respect of an alleged contravention of Part 4, 6 or 7, whether or not the person has brought a dispute to the Commission for dispute resolution.

1. The Applicants bear the onus of proving that the Respondent engaged in the conduct alleged. The standard of proof has been variously described in the context of different cases. However, a useful starting point are the principles expressed by the High Court in Briginshaw v Briginshaw:[1]

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency [emphasis added].

1. In Sharma v Legal Aid (Qld),[2] a case which concerned alleged racial discrimination in employment, the Full Court of the Federal Court emphasised the care which must be taken in examining the evidence and drawing inferences:
   1. It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953, 958. 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: Nagarajan v London Regional Transport [1999] UKHL 36; [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the [Racial Discrimination Act 1975 (Cth)] is the higher standard referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319, 331.
2. If the facts, without explanation, contain no direct proof of discrimination of the kind alleged, then the Tribunal may still be able to draw an inference of discrimination as the most probable explanation. However, such a finding should not be lightly inferred and may not be justified if there is a reasonable and innocent explanation for the conduct, not consistent with the type of discrimination charged.
3. I endorse and adopt the useful summary given by Member Dea when describing the requirements for proving claims of discrimination:[3]
   1. The onus of proving that there has been a breach of the EO Act falls on Mr Ali. The standard of proof is on the balance of probabilities. What is required is for the Tribunal to be satisfied that, overall, it is more probable than not that the events occurred as described and that the inferences sought to be drawn can reasonably be drawn from the facts as they have been found.
   2. In cases of discrimination, the person engaging in the prohibited conduct does not ordinarily announce that fact. It is often necessary for an inference to be drawn from the evidence presented that the reason for the unfavourable treatment is the relevant attribute. The Tribunal must be satisfied that the evidence supports, not just some inference of general discrimination, but discrimination of the kind claimed. The Tribunal must be satisfied that there was no equally or more probable innocent explanation of the conduct [emphasis added].
4. It must also be borne in mind that unacceptable or antisocial behaviour such as inexplicable rudeness, ill-mannered or insulting behaviour and lack of consideration for others does not of itself necessarily amount to racist or discriminatory conduct. The recipient of such conduct may be understandably aggrieved, shocked and hurt. In certain circumstances, they may have other statutory or contractual remedies. However, such conduct may not satisfy the elements of discriminatory behaviour or victimisation under the EO Act.

1. The Applicants' Claim relies upon several definitions and provisions of the EO Act, which are set out below for easy reference.

1. Section 8 defines direct discrimination for the purposes of the EO Act:
   1. Direct Discrimination

(1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

(2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment to be unfavourable;

(b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

1. Section 44 prohibits discrimination in the provision of goods and services:
   1. Discrimination in the provision of goods and services

(1) A person must not discriminate against another person -

(a) by refusing to provide goods or services to the other person; or

(b) in the terms on which goods or services are provided to the other person; or

(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

(2) Subsection (1) applies whether or not the goods and services are provided for payment.

1. The Applicants allege that they were discriminated against because they possess the following protected attributes under s 6:

(d) personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes at (q).

marital status means a person's status of being -

(d) married but living separately and apart from his or her partner; or

1. Accordingly, in the context of the Discrimination Allegations, the Applicants bear the burden of proving:

(a) that the Respondent discriminated against them:

(i) by refusing to provide goods or services to them; or

(ii) in the terms on which goods or services are provided to the other person; or

(iii) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her; and

(b) that such discrimination was because of the Applicants' marital status, race, religious belief or activity or personal association with a person who is identified by reference to any of the above attributes.

1. The Respondent's Counsel raised a preliminary objection to the Applicants' reliance upon 'marital status' as a relevant attribute. In particular, the Applicants have claimed discrimination based on their marital status, by reason that they are each from different Muslim sects.
2. Section 4 of the EO Act provides that 'marital status' means a person's status of being single, married, a domestic partner, married but living separately and apart from his or her spouse, divorced, or widowed. It does not explicitly extend to the identity or situation of one's spouse.[4]
3. Accordingly, I concur with the Respondent's Counsel that the Applicants' claim of discrimination because of their marital status, being the status of being married to a person of a different religious sect, is not available.

1. Section 103 of the EO Act provides:
   1. Prohibition of victimisation

1. Section 104 of the EO Act defines victimisation as:
   1. What is victimisation?

(1) A person victimises another person if the person subjects or threatens to subject the other person to any detriment because the other person, or a person associated with the other person -

(a) has brought a dispute to the Commission for dispute resolution; or

(b) has made a complaint against any person under the old Act; or

(c) has brought any other proceedings under this Act or the old Act against any person; or

(d) has given evidence or information, or produced a document, in connection with -

(i) any proceedings under this Act or the old Act; or

(ii) any investigation conducted by the Commission; or

(e) has attended a compulsory conference or mediation at the Tribunal in any proceedings under this Act or the old Act; or

(f) has otherwise done anything in accordance with this Act or the old Act in relation to any person; or

(g) has alleged that any person has contravened a provision of Part 4 or 6 or this Part, or Part 3, 5 or 6 of the old Act, unless the allegation is false and was not made in good faith; or

(i) would contravene a provision of Part 4 or 6 or this Part; or

(ii) would have contravened a provision of Part 3, 5 or 6 of the old Act -

or because the person believes that the other person or the associate has done or intends to do any of those things.

(2) It is sufficient for subsection (1)(g) that the allegation states the act or omission that would constitute the contravention without actually stating that this Act, or a provision of this Act, has been contravened.

(3) In determining whether a person victimises another person it is irrelevant -

(a) whether or not a factor in subsection (1) is the only or dominant reason for the treatment or threatened treatment provided that it is a substantial reason;

(b) whether the person acts alone or in association with any other person.

(4) In this section, old Act means the Equal Opportunity Act 1995, as in force before its repeal.

1. Accordingly, in the context of the Victimisation Allegations, the Applicants bear the burden of proving that:

(a) the Applicants engaged in conduct set out in sub-paragraphs (a)-(h) of s 104(1);

(b) Costco has, or threatened to, subject them to a 'detriment';

(c) Costco did this 'because' they had engaged in conduct set out in sub-paragraphs (a)-(h) of s 104(1); and

(d) the Applicants' conduct set out in sub-paragraphs (a)-(h) of s 104(1) was a substantial reason for the treatment.

1. Costco operates supermarket warehouses in Australia. There are four warehouses in Victoria. The Docklands warehouse is located at 381 Footscray Road, Docklands (Docklands Store).[5] All events related to the Claim take place at the Docklands Store.
2. The Applicants arrived in Australia in November 2014 and were members of Costco from 2014 to 2018. They arrived in Victoria in November 2016.[6]
3. Costco membership is required to shop at Costco.[7]
4. The Costco membership terms and conditions, relevantly, provide that:[8]

Costco reserves the right to refuse membership to any applicant and membership is revocable without cause.

1. The employee witnesses for Costco variously gave evidence of Costco's operations and their respective duties. They also made similar statements regarding their employer's training and customer service, as follows:

(a) Costco is a diverse and inclusive place to work in which staff and customers alike are treated the same regardless of their background;[9] and

(b) Costco employees are regularly and comprehensively trained in how to treat people respectfully at work, including in anti-discrimination. Costco requires its employees to comply with this training and enforces high standards of conduct.[10]

(b) The Witness Statement of Ahmad Masri dated 15 April 2020 (Masri Statement);

(c) The Witness Statement of Maryam Reza Zadeh dated 15 April 2020 (Zadeh Statement);

(d) Their respective oral evidence, tendered photos, diagrams and videos; and

(e) Closing written submissions dated 15 October 2020.

(a) The Response to Particulars of Claim as set out in the Statement setting out Defence and Responding to Particulars of Claim dated 21 January 2020 (Response to Particulars);[11]

(b) The Response to the Further Particulars of Claim dated 19 March 2020 (Response to Further Particulars);

(c) Closing written submissions and reply dated 22 October and 7 December 2020;

1. I acknowledge the thorough closing submissions of both parties and the detailed references to those parts of the transcript of evidence upon which each respectively relies. I have drawn from these submissions and have adopted those parts with which I agree.

1. The Applicants allege that Costco contravened s 44 of the EO Act by directly discriminating against them in five circumstances.

1. The Applicants describe the 13 December Incident as follows:[12]
   • [30] On 13th December 2018 at about 7:15 pm, the applicants lined up at one of the respondent['s] Docklands warehouse cashier[s] waiting to pay for their goods, when applicant 1 noticed a large security guard staring at the applicants. Applicant 1 avoided the eye contact and turned to talk to applicant 2. About thirty seconds later, the applicants noticed the same large security guard approaching the applicants, the guard was staring at applicant 1 and forced himself between the applicants, forcefully and physically separated them. The applicants ignored the large security guard again, and went on to talk to each other. The large security guard then turned back at the applicants and started screaming at the applicants 'what..., what...' or words to that effect. The applicants feared for their lives again. (Particulars of claim para 14 and Further Particulars of claim para 14), (Applicant 1 witness statement para 15-16) and (Applicant 2 witness statement para 14-15).

• [33] A Costco employee arrived to calm the situation after the large security guard attack, and Ms Zadeh spoke to the employee.

• [38] The sole purpose of the large uniformed security guard was, to attack, harm and discriminate against the applicants, as well as, to cause damage to the applicants['] relationship, and publicly humiliate the applicants.

• [42] ... the large security guard was seen by the applicants only by the registers. The large security guard was just waiting to attack, discriminate, separate, and publicly humiliate the applicants. (Applicants' diagram marked D-1)

1. The CCTV footage was played a number of times during the Hearing.
2. The Applicants gave oral evidence to the effect that the CCTV footage must have been fabricated.[13] Accordingly, they refused to confirm that they were depicted in Part 1 of the footage, although Mr Masri identified himself, Ms Zadeh and Mr Rajar in Part 2 of this footage.
3. In their closing written submissions, the Applicants list reasons why the CCTV footage must be fabricated. In summary:[14]

(a) The video does not bear a time/date stamp or camera name;

(b) The appearance of sun reflection indicates that videos 1 and 3 were not taken simultaneously;

(c) The store was not as busy as it had been on 13 December;

(d) The 'actor' representing Mr Masri was too agile; and

(e) The Respondent's witnesses gave variable evidence as to the date of the CCTV footage or when and whether they had seen it and how it had been stored or backed up.

1. The Applicants' account of their dealings with Costco following the 13 December Incident, and in the days following, differ markedly from the accounts given by the Respondent's witnesses.[15] In essence, they claim that their complaint was not followed up until they made an online complaint and that Costco staff made many false statements in their witness statements.

(a) Mr Masri was referred to Mr Thuraisingam's Incident Report in which he wrote that Mr Rajar 'passed between' him and Ms Zadeh.[16] Mr Masri gave evidence that:[17]

- well, he came. We ha[d] to back up, so he passed because he was a big guy, so that's pretty much what happened. He came. We were standing next to each other about five centimetres away from each other. We saw the big wall and we backed up. Both of us took a step backward and he passed ...

We had to step back one step. Both of us, my wife and I. We had to step back one step;[18] and

(c) Ms Zadeh gave evidence that if she did not step back, she would have been pushed.[19]

1. The Respondent's witnesses gave evidence that the CCTV is genuine and described the process for the recording, backup and retrieval of CCTV footage.[20]
2. The Respondent's witnesses gave the following account of the 13 December Incident:

(a) Costco's security guard, Taha Rajar, notices Mr Masri speaking loudly at the registers and thought there might be an incident. Mr Rajar makes eye contact with Mr Masri and Mr Masri becomes aggressive and shouts at Mr Rajar.[21]

(b) Melinda Karamanlis, Supervisor, steps in to talk to Mr Masri. Mr Thuraisingam, Assistant Warehouse Manager, approaches Ms Karamanlis and Mr Masri as he thinks that Ms Karamanlis looks threatened by Mr Masri.[22]

(c) Mr Masri states that Costco employees were following him and had been at his home, that he was being watched and persecuted and talked about threats in his home country.[23]

(d) Mr Masri accepts Mr Thuraisingam's offer to fill out an Incident Form in relation to his concerns which Ms Zadeh does on Mr Masri's behalf. At the same time, Mr Masri says that he is 'off the drugs now' and Mr Thuraisingam observes Mr Masri's eyes moving rapidly.[24]

(e) After Mr Masri and Ms Zadeh depart the Docklands Store, Mr Thuraisingam makes enquiries regarding the incident by speaking to the persons involved and reviewing the CCTV footage. Mr Thuraisingam forms the view that there had been no improper conduct on the part of Mr Rajar or any Costco staff.[25] In his oral evidence, Mr Thuraisingam described the 13 December Incident as a 'normal security guard incident'.[26]

(a) Mr Masri attends the Docklands Store and makes a complaint to Charlie De Pasquale, Warehouse Manager, regarding the incident the previous day. Mr Masri alleges that he was being targeted because of his religion and that Costco employees or security guards had been following him to his house for years.[27]

(b) Mr De Pasquale engaged with Mr Masri, discussing the incident the previous day, and stated that Mr Masri was not being targeted by Costco and suggested that Mr Masri could shop at another store and talk to Mr De Pasquale if he had any further issues in store. Mr De Pasquale found Mr Masri to be aggressive, standing alertly and speaking loudly during this conversation but that he calmed down by the end of this conversation.[28]

(c) Mr De Pasquale spoke with Mr Thuraisingam regarding the incident the subject of Mr Masri's complaint. Mr Thuraisingam says that Mr Masri had appeared unstable to him.[29]

(d) Mr De Pasquale investigates Mr Masri's complaint and after speaking with Mr Rajar and reviewing the CCTV footage, he forms the view that Mr Rajar's account of the incident was accurate.[30]

(a) Mr Masri also lodged a complaint with Costco's Member Services regarding the incident on 13 December 2018.[31]

(b) Mr De Pasquale receives an email from Fiona Chojnacki, HR Director at Costco, asking about the 13 December Incident. Mr De Pasquale reviews the CCTV footage and responds to Ms Chojnacki to advise her that Mr Masri was aggressive and that his version of events did not seem totally accurate. The email states:

We should also be wary of this member returning to Costco. He was very aggressive when he spoke to me. Mr De Pasquale said this because [he] was concerned for the safety and wellbeing of [his] staff if Mr Masri were to interact with them as he had interacted with me and my view that Mr Masri's complaints about Mr Rajar were not accurate.[32]

(c) Mr Masri's complaint is referred to Proclaim, which manages some of Costco's customer complaints.[33]

(d) Proclaim contacts Mr Masri by email to advise him that they are investigating the matter.[34]

(e) Mr Masri said that he sent a follow up email to Proclaim on 18 December 2018 and made subsequent phone calls inquiring about the 13 December Incident.

(a) Mr De Pasquale and Mr Thuraisingam respond to Proclaim's questions regarding the 13 December Incident.

(b) As part of this response, Mr Thuraisingam asks Ms Karamanlis and Mr Rajar to complete Witness Reports.

(c) Ms Karamanlis and Mr Rajar complete the witness reports as requested.[35]

(a) In a letter emailed to Mr Masri on 5 March 2019, Proclaim advises as follows:[36]

As previously discussed with you, Proclaim act[s] on behalf of Costco in relation to public liability matters. The owners of Costco are sorry they are to hear of your incident and the effect that this has had on you.

We have now completed the investigation into your incident and thank you for raising your concerns with us. Costco takes your safety extremely seriously and instances like this, thankfully, are rare.

As a valued Costco member, we have worked closely with Costco staff to ensure our ethos and guidelines are understood and followed. We have passed your concerns on to the warehouse manager.

We appreciate the feedback from you in relation to our security personnel and we hope to see you in our warehouse again soon.

(b) The Respondent viewed Proclaim's investigation as concluding that there was no evidence to suggest that Mr Masri had been harassed.[37]

1. The evidence of the Respondent's witnesses was not entirely consistent in terms of the timing of certain events and conversations. For instance:

(a) Mr De Pasquale recalled asking Mr Kurtulus to obtain the CCTV footage which showed the 13 December Incident;[38]

(b) Mr Kurtulus gave evidence that he had not commenced in the Loss Prevention Manager role at that time so was not involved in that process;[39] and

(c) Mr Thuraisingam subsequently gave evidence that he backed up the footage of the 13 December Incident three day later.[40]

1. The Applicants describe the 12 March Incident as follows:[41]
   • [63] On 12 March 2019, Mr Masri and Ms Zadeh arrived at the Docklands store to purchase some items. Mr Masri was threatened by the respondent 'I will send a hundred of my friends to harass and bully you around the house' or words to that effect. Mr Masri was on Costco's electric wheelchair, due to a left ankle injury. Mr Singh['s] threat took place right after Mr Singh attacked Ms Zadeh (Mr Masri witness statement para 26 and Ms Zadeh witness statement para 18 and Applicants' diagram marked, D-2). Yet, the respondent failed to produce the CCTV footage of [the] 12 March 2019 incident.
   • [64] Mr Masri went to [the] Costco office -while on Costco's electric wheelchair- to report the incident, Mr Krishna tried to make 'Mr Masri believe that, Mr Masri was confused' or words to that effect, and 'Mr Masri needed to stop this' or words to that effect (Mr Krishna witness statement para 43) and Mr Krishna stated 'I moved Mr Masri backward out of the office' or words to that effect, while Mr Masri was on Costco's electric wheel chair (Mr Krishna witness statement para 42) Mr Krishna admitted to touching Mr Masri against Mr Masri's will, in his own witness statement- while Mr Masri was on the electric wheel chair- (Mr Krishna witness statement para 42). Requoting Mr Krishna 'I was trying to move him backwards out of the office' or words to that effect.

• [66] On 13 March 2019, Mr Masri reported the threat to [P]roclaim who act[s] on behalf of Costco regarding complaints. The applicants did not hear back from Costco regarding the incident to date. (Mr Masri witness statement para 27 and document marked AM-27).

1. Ms Zadeh gave evidence that she did not hear Mr Singh make this comment.[42]
2. The Respondent's witnesses gave the following account of the 12 March Incident:

(a) Harry Singh, Assistant Warehouse Manager, sees Mr Masri on a mobile scooter with crutches reaching for a tall carpet on the store floor. Mr Singh thinks Mr Masri needs help, so he approaches Mr Masri and asks whether he would like help with anything. Mr Masri begins speaking aggressively and loudly, gesturing angrily towards Mr Singh and making comments to Mr Singh about being followed. Mr Singh apologises to Mr Masri and explains that he was not following him and was just trying to help him. Mr Singh tells Mr Masri that if he wanted to speak with another manager he could do so.[43]

(b) Mr Singh reports this incident to Mr Thuraisingam in the Manager's office in which Mr Kurtulus was also present.[44]

(c) A short time later, Mr Masri enters the Manager's office through the larger Administration office. Mr Masri points and gestures towards Mr Singh and alleges that Mr Singh was following him. Mr Masri also makes statements that everyone was following him. Mr Masri is highly agitated throughout this interaction.[45]

(d) Mr Singh recalls Mr Masri saying that he was not on drugs anymore and Mr Thuraisingam recalls Mr Masri making threats about violence, saying:

If you want a fight, I will go right now, I'll grab a fight.[46]

(e) Mr Singh reports feeling scared during this interaction with Mr Masri and that the employees in the Administration office also looked scared. He also observes that Mr Masri was very abusive and violent in the way he was speaking.[47]

(f) Mr Thuraisingam reports stepping between Mr Masri and Mr Singh because his body language was escalating and aggressive as he was shifting his body weight around. He observes him inching towards Mr Singh. Mr Masri is more aggressive in this instance than in Mr Thuraisingam's previous interactions with him.[48]

(g) Mr Masri leaves the Manager's office after being directed to where he could make a complaint.[49]

(h) Mr Singh has consistently denied that he made the comment alleged by the Applicants or a comment to that effect.[50]

(i) Mr Thuraisingam reports this incident to Mr De Pasquale because he is concerned that the incidents with Mr Masri are escalating in seriousness, that Mr Masri is becoming more aggressive and that Mr Masri appears to be positioning for a fight.[51]

(j) This report concerns Mr De Pasquale, as Mr Masri had been continuing to make ambiguous and serious complaints and was a 'threatening presence in store'. Mr De Pasquale tells Mr Thuraisingam if this was going to continue, Mr Masri should not shop at the Docklands Store.[52]

1. The Applicants describe the 13 April Incident as follows:[53]
   • [71] Mr Masri visited Costco's Docklands store on 13 April 2019 to enquire about the security company name, as Mr Masri has seen the same large security guard around the applicants' residence and the large security guard always tried to get applicant 1['s] attention but applicant 1 ignored the eye contact. Applicant 1 wanted to report the 13th December 2018 incident to the authorities, and to speak to the security company about the 13th December 2018 incident.
   • [72] Mr Masri was given the name of a cyber security company.
   • [73] On Mr Masri's way out, while he was on crutches -due to left ankle sprain and sciatica pain (Mr Masri medical report marked AM-9A, AM-9B, AM-9C, AM-9D and AM-25)- Mr Masri was bullied, publicly humiliated, and discriminated against by Mr Krishna and Mr Kurtulus. Then, Mr Masri was asked in a very intimidating and condescending way to cancel his membership or else by the same 2 employees, but Mr Masri refused to cancel his membership, and walked away thinking something really dodgy is happening regarding the applicants' membership at Costco. Specially now, after the respondent failed to produce the CCTV footage of the above incident despite Mr Kurtulus and Mr Krishna stated in their witness statement that 'they viewed the CCTV footage' or words to that effect (Mr Kurtulus witness statement para 44 and Mr Krishna witness statement 58). (Applicants' Diagram marked D-10)
2. In summary, Mr Masri alleges that by the 13 April Incident he was bullied, intimidated and asked to cancel his membership by employees of Costco.[54]
3. The Applicants also allege that a security guard made eye contact with Mr Masri in store and he was then asked to cancel his membership.[55]
4. The Respondent's witnesses gave the following account of the 13 April Incident:

(a) Mr Masri attends the store and asks to see the Manager on duty, who is Mr Thuraisingam. Mr Masri speaks and behaves aggressively and makes allegations that a security guard from Costco was following him.[56]

(b) Mr Thuraisingam engages with Mr Masri but cannot see an achievable outcome that would be satisfactory and helpful to Mr Masri. Mr Thuraisingam also forms the view that Mr Masri was a physical danger to staff.[57]

(c) In response to what Mr Masri's is reporting to him, Mr Thuraisingam suggests to Mr Masri that if he did not have a good shopping experience at Costco then his membership could be refunded. This is also based on Mr Masri's level of aggression. Mr Thuraisingam does not, at any time, demand that Mr Masri cancel his membership. No Costco employee made any such demands.[58]

(d) Mr Masri behaves aggressively throughout this interaction. Mr Thuraisingam tells Mr Kurtulus that he thinks Mr Masri may actually throw a punch next time.[59]

(e) Regarding the alleged eye contact with Mr Masri from a security guard, both Mr De Pasquale and Mr Thuraisingam give evidence that Costco had ceased engaging security guards at this time.[60]

(f) Mr Thuraisingam sends an email to Mr De Pasquale. Mr Thuraisingam writes that:[61]

The communication with this individual is consistently escalating to point of extreme concern for the safety of staff and other shoppers, I am worried if he may turn violent.

(g) Mr Kurtulus agrees that Mr Masri appeared as though he may become physically violent.[62]

(h) Mr De Pasquale responds to Mr Thuraisingam's email advising Mr Thuraisingam to call the police and issue a Trespass Notice.[63]

(i) Mr Thuraisingam also gave evidence that he offered to cancel Mr Masri's membership to try and find a solution to Mr Masri's complaints about his shopping experience at Costco.[64] Mr Thuraisingam denies that he demanded that Mr Masri cancel his membership,[65] which is consistent with Mr Kurtulus' evidence regarding this interaction.[66]

(j) Following Mr De Pasquale's instructions to Mr Thuraisingam, Mr De Pasquale spoke to Mr Kurtulus regarding the next steps with Mr Masri's membership.[67]

1. On 16 April 2019, Mr Kurtulus cancels Mr Masri's membership and issues Mr Masri with a Trespass Notice[68] (Membership Cancellation and Trespass).[69]

1. The Applicants allege that Costco did not following its members' terms and conditions which state:

Costco reserves the right to refuse membership to any applicant and membership is revocable without cause ...

and appear to allege that Costco 'continued the membership' for some ulterior purpose (Failure to Follow Membership Terms).[70]

1. Under this head, the Applicants also appear to rely upon the Respondent's alleged failure or refusal to provide the Applicants with their visitation log/record, and the inaccurate recording of the commencement of their membership.

1. In addition to the above allegations of discrimination, the Applicants raised other allegations in the Claim, during the Hearing and subsequently in their written submissions. I do not propose to deal with these in any detail but for completeness, include the following brief summation.

1. In their closing written submissions, the Applicants raised two concerns.
2. First, the Applicants noted that whilst they arrived in Australia in November 2014 and moved to Victoria in November 2016, the Respondent had stated that:[71]

(a) their Costco membership commenced on 20 January 2014; and

1. Mr De Pasquale gave evidence that he was not aware of why this would have occurred.[72] Whilst there is no evidence to explain the apparent error in the Respondent's records, I do not draw any adverse inference from such error. Neither of these dates have a bearing upon the acts of discrimination and victimisation which allegedly occurred between 13 December 2018 and 13 April 2019.
2. Secondly, the Applicants complained that the Respondent failed or refused to provide their visitation log/record on request. As a consequence, the Applicants allege that:[73]
   • [22] By the respondent not releasing the applicants' visitation log/record, the applicants were not able to pick exact date[s] and time[s] of many other discriminatory and racist incidents and attacks committed by the respondent against the applicants.
   • [23] The applicants were asked on many occasions by the respondent about the applicants['] religion, faith, sects (Sunni, Shia) and ethnicity over and over.
   • [24] The applicants were constantly threatened, targeted, harassed, and called many racial, and degrading names, inside and outside the respondent premises. (Applicants' Diagram marked D-3, D-4 and D-5).
   • [25] On many occasions, the applicants verbally communicated the above to the respondent management, and every time, the respondent management promised the applicants to have a talk with the employees, after viewing the CCTV footage.

• [27] The respondent orchestrated countless embarrassing, humiliating, degrading, hateful acts, etc. [a]gainst the applicants in and outside the respondent's premises. i.e. the respondent many times screamed out loud 'oh here we go, Syrian, Iranian' , 'oh look Sunni, Shia', 'ignore her, talk to him', 'ignore him, talk to her', 'does she know he is a fag', 'Iranians are stupid', 'hey look, he is a handicap', 'come to the Eid prayer and see what happens', 'He is a druggy', 'He is on drugs'. (Applicants' Diagram marked D-3, D-4 and D-5).

1. It is apparent from an email exchange with the Tribunal in March 2020 that the Respondent's offer to discover the Applicants' visitation log was not pursued by the Applicants who subsequently declined a Directions Hearing, for that purpose. Accordingly, there can be no disadvantage to the Applicants where they elected not to pursue such disclosure.
2. Furthermore, the matters raised in the above extracts from the Applicants' closing submissions would not be admissible within the terms of the Tribunal Order of 23 January 2020 and are otherwise vague as to time and circumstance.

1. In mid-2016, Mr Masri made a complaint to Mr Kurtulus, then Marketing Manager (Manager in Training), that Costco staff were allegedly following him and that his personal details with Costco were not secure and were being shared and/or stolen. After being asked by Mr Kurtulus to identify the staff member who was following him, Mr Masri identified Omar Delgado, a Member Service Team Member. Mr Delgado told Mr Kurtulus that 'he had no idea who Mr Masri was' and 'had never seen him before'.[74]
2. Mr Masri also said that he had complained previously (he could not remember to whom) but nothing had been done. Mr Kurtulus was not aware of any prior complaints. Mr Kurtulus apologised to Mr Masri, to calm him down and for what he claimed to have experienced. However, having regard to what Mr Kurtulus knew of Costco employees and what Mr Delgado had said to him, he formed the view that Mr Masri's allegations could not have any basis in fact. After consulting a colleague, Mr Kurtulus decided not to make a written report.[75]
3. In May 2018, Mr Masri made a further complaint to Mr Kurtulus that he was being watched, observed and under constant surveillance, that personal details were being shared and stolen and that his accounts had been hacked.[76] Mr Kurtulus said that a more senior staff member (an Assistant Warehouse Manager) stepped in when Mr Masri was being demanding and confrontational.[77]
4. Mr Kurtulus also stated that at no time did Mr Masri state that Costco was engaging in any of the alleged conduct in relation to him because of his race, marital status, religious belief or association with another.[78]
5. I note that in the Particulars and Further Particulars, the Applicants make a number of allegations against Costco under the headings 'Background' and 'Harm caused'. However, these allegations are unparticularised and the Applicants do not allege that this conduct breaches the EO Act.
6. The Applicants have made further allegations against Costco since the filing of the Further Particulars in correspondence to the Tribunal dated 4 May 2020 and 8 September 2020. However, the Applicants do not appear to raise further breaches of the EO Act. All such allegations are denied by Costco.

1. First, the Applicants submit[79] that the Respondent's failure to provide the security guard contract proves that it engaged in discriminatory conduct towards the Applicants.
2. In my view, there is no credible evidence to support this allegation. In particular, I note that:

(a) The Respondent never denied that it engaged a security guard at the time of the 13 December Incident and Mr De Pasquale and Mr Thuraisingam each gave evidence as to the security guard's purpose at the store;[80]

(b) The email at CP-11 to the De Pasquale Statement was sent on 23 April 2019, at which time Costco had ceased engaging a security guard;[81] and

(c) The further allegation,[82] not previously raised, that Mr Rajar was not legally working at Costco, is otherwise contradicted by the evidence regarding Mr Rajar's engagement by Mr De Pasquale.[83]

1. Secondly, the Applicants allege to the effect that their complaint regarding the 13 December Incident was not taken seriously or properly investigated and that Mr De Pasquale ignored their Incident Report.[84]
2. I am satisfied that there is credible evidence that the Applicants' complaint was thoroughly investigated[85] and that Costco appeared to have appropriate procedures in place to respond to complaints generally.[86]
3. Furthermore, in the email which appears at CP-4 of the De Pasquale Statement, Mr De Pasquale offers to send Mr Masri's incident report to Proclaim.
4. Thirdly, the Applicants allege that Costco failed or refused to produce evidence of other incidents at their premises.
5. I am satisfied that the Respondent's witnesses gave a credible account of the procedure for accessing and, if necessary, storing CCTV footage.[87] The CCTV system that Costco used at the relevant time wrote over the footage after three months.[88] Accordingly, if the CCTV footage was not extracted at the time of an alleged incident, or within three months of the relevant event occurring, the system does not retain or store the footage. Mr Thuraisingam gave evidence that Costco's usual practice is to extract CCTV footage if a member makes a written complaint, which is what occurred when Mr Masri made a complaint on 13 December 2018.[89] In addition, in respect of the incidents which occurred in the Manager's office, there is no CCTV coverage of that area.[90]
6. Fourthly, the Applicants' submission contains an attached schedule which purports to indicate inconsistencies in witness statements of the Respondent's witnesses. I concur with the Respondent's Counsel that many of these alleged inconsistencies were not the subject of cross-examination of these witnesses and accordingly it is not possible to make a fair assessment of their relevance.
7. Furthermore, the Applicants identify a number of minor inconsistencies in the evidence given by the Respondent's witnesses which are not matters which bear upon any issue which falls to be determined by the Tribunal. For instance:

(a) which parts of an incident report form were completed;[91]

(b) Mr Kurtulus giving evidence that the 13 December Incident, in which he was not involved, took place on 22 December 2018;[92] and

(c) whether Ms Zadeh was wearing a head scarf during an interaction with Mr Thuraisingam.[93]

1. I do not regard any of these inconsistencies as significant or relevant to any issue in this proceeding. In particular, these matters do not impact on the overall credibility of the Respondent's evidence.
2. Finally, and somewhat bizarrely, Mr Masri gave an account of the following incidents external to the Docklands Store, which he alleged was evidence of harassment by Costco employees or their associates:
3. First, in March 2018, while the Applicants were present at the Moomba Festival, they allege that they were harassed and victimised by security guards, which they subsequently attributed to Costco.[94] The Applicants also alleged similar incidents of harassment at other shopping centres by people associated with Costco.
4. The Applicants have not produced any credible evidence that these events occurred as alleged.[95] More significantly, there is no evidence to connect such alleged incidents with Costco or any Costco staff.
5. In relation to the alleged incident at Moomba, under cross-examination Mr Masri did not recall any person from Costco at the time, he only made the connection later.[96]
6. In relation to the alleged incidents at other shopping centres, under cross-examination Mr Masri said that he does not allege that this harassment is carried out by anyone from Costco.[97] Ms Zadeh gave evidence her allegation that Costco employees are involved in harassment at other shopping centres is based on a belief only and appeared to give contradictory evidence regarding whether she had seen Costco employees at other shopping centres.[98]
7. Secondly, in his oral evidence, Mr Masri referred to two separate occasions when he was driving near his residence and had to stop abruptly at a pedestrian crossing to avoid hitting a female pedestrian who suddenly rushed on to the crossing.
8. Thirdly, Mr Masri captured a short video on his mobile phone taken in his apartment building, which he played at the Hearing. The video depicts an interaction between Mr Masri and a male visitor to his apartment building. Mr Masri was located in the lift of the building and the male appears to be approaching the lift. The male is not heard to say anything, but Mr Masri is heard to shout: 'Shut up, shut up'. Under cross-examination, when asked whether he shouted at this male, Mr Masri replied:[99]

No. After he spoke to me, I turned my [on] camera later. You saw how he was ready to punch me out? That's when I turned my phone [on] and he changed.

After he harassed me in my own building... I needed help. Yes. Yes. Yes.

Under cross-examination, Mr Masri also alleged that this male was sent by 'Costco or a Costco affiliate'.[100]

1. As indicated during the Hearing, in my view, the male in the video does not appear to be acting aggressively and in fact is standing back, not saying anything and looking a little stunned. I also note that Mr De Pasquale and Mr Kurtulus for the Respondent gave evidence that they have never seen the person in this video before.[101]
2. I am satisfied that all of the above miscellaneous allegations and concerns:

(a) are irrelevant for the purpose of a claim under the EO Act;

(d) were not supported by any credible or objective evidence; and/or

1. Furthermore, as indicated during the Hearing, the Applicants' attempt to connect the Respondent to the various alleged incidents external to the Docklands Store is bizarre.

ANALYSIS AND FINDINGS REGARDING DISCRIMINATION ALLEGATIONS

1. The Applicants allege that the 13 December Incident contravened ss 44(1)(b) and (c) of the EO Act.[102]
2. The Respondent's Counsel submitted that the Applicants have made no allegation that Costco provided any terms on which they would provide goods or services to the Applicants. Accordingly, there is no basis for a claim relying upon s 44(1)(b) of the EO Act. I agree.
3. In relation to s 44(1)(c), I note the following:

(a) The CCTV footage of the above incident was played during the Hearing and I have reviewed the footage multiple times.[103] In my view, it does not show that the Applicants had to step backwards to allow Mr Rajar to pass between them. I accept the evidence of the Costco witnesses that the CCTV footage is genuine and shows Mr Rajar walking between the Applicants without making any physical contact with either of them. It is also not apparent that the Applicants were required to take a step backwards in order to allow space for Mr Rajar to pass.

(b) There is also no visible evidence of Mr Rajar appearing to 'scream' at or behave aggressively toward either Applicant.

1. I accept that the evidence of the investigations of Mr Thuraisingam, Mr De Pasquale and Proclaim into the Applicants' complaint about these events and the findings of these investigations do not support any improper conduct towards the Applicants.[104] I also note the evidence of Mr De Pasquale to the effect that Proclaim are specialists in this area and generally do not have prior knowledge of the complainants or relevant employees.[105]
2. The Applicants' description of Mr Rajar's conduct was quite variable:

(a) In the Applicants' Further Particulars, the Applicants state that the security guard 'forced himself between the applicants and forcefully and physically separated them';[106] and

(b) In oral evidence, the Applicants appeared to concede that, at its highest, they took a step backwards when Mr Rajar walked between them. If indeed the Applicants were required to step aside or step back to allow the security guard to pass through, such conduct is not a detriment within the meaning of the EO Act. It is not conduct which amounts to 'humiliation and denigration'. Furthermore, under cross-examination Mr Masri conceded that 'in a normal situation', when shopping, it was reasonable for a person to have to take a step back to allow a security guard to pass through.[107] I am satisfied that there is no basis for the Applicants' claims in relation to s 44(1)(c) of the EO Act.

1. Mr Rajar denies screaming at the Applicants. There is no evidence from any other witness to confirm the version of the Applicants. I am not satisfied that a loud outburst from Mr Rajar directed at either or both Applicants is likely in the circumstances. Mr Rajar was performing the role of a security guard and was therefore expected to respond to situations which potentially raised concern. I accept the evidence of Mr Rajar as more probable. However, even if he did raise his voice or shout at the Applicants in some way, there is no evidence that it reached the level of 'humiliation or degradation'.

Causal nexus between the 13 December Incident and the Applicants' protected attributes

1. If it were proven that the 13 December Incident occurred as alleged by the Applicants and that such conduct could constitute discrimination in the provision of goods and services within the meaning of s 44(1) of the EO Act, then the Applicants still have to prove that Costco engaged in such conduct because of any of the protected attributes relied on by the Applicants.
2. The alleged conduct was investigated by Costco staff[108] and Proclaim. These investigations found that Mr Rajar approached and engaged with the Applicants because Mr Masri was shouting and behaving aggressively at the registers and Mr Rajar engaged with Mr Masri because of this conduct.[109] I am satisfied that this is the more probable explanation for any interaction between Mr Rajar and the Applicants on 13 December 2018.
3. The Applicants rely upon any or all the following attributes: their marital status; race; religious belief and personal association. The following questions arise:

(a) Was any Costco employee aware of these attributes; and

(b) If so aware, did such knowledge in any way adversely affect or change the way in which Costco employees treated or interacted with the Applicants?

1. The Applicants gave evidence to the effect that they were frequently asked by check out staff as to their religion, marital status, sects and ethnicity.[110]
2. Costco staff referred to by the Applicants in relation to the subject allegations denied either knowing or enquiring about the relevant attributes,[111] or to the extent they may have known, denied engaging in any of the alleged conduct because the Applicants had any protected attribute.[112]
3. In my view there is no credible evidence connecting the alleged conduct in the 13 December Incident with any of the claimed attributes.
4. Accordingly, the Applicants' discrimination claim in respect of the 13 December Incident must fail.

1. The Tribunal must determine whether it is probable that Mr Singh said to Mr Masri words to the effect: 'I will send a hundred of my friends to harass and bully you around your house'.
2. Mr Singh denied that he made the comment alleged by Mr Masri or any comment to that effect.[113]
3. Ms Zadeh gave evidence that she did not hear Mr Singh make this comment.[114] In my view, the evidence of Mr Masri alone is not credible, particularly in the context and surroundings in which it is alleged to have been said.
4. For the same reasons given in relation to the 13 December Incident, there is no basis for the alleged 13 March Incident under s 44(1)(b) of the EO Act. Furthermore, as indicated, I do not accept Mr Masri's evidence as to the alleged threat made by Mr Singh. Accordingly, the Applicants' claim in relation to s 44(1)(c) of the EO Act must also fail.
5. Even if a finding could be made that Costco, through its employees, had engaged in conduct which could constitute discrimination in the provision of goods and services, within the meaning of s 44(1) of the EO Act, in respect of the 12 March Incident, I am also not satisfied that there is any plausible causal nexus between the 12 March Incident, as alleged, and any of the claimed protected attributes which the Applicants rely upon. In making this finding, I have had regard to the following circumstances:

(a) Mr Singh gave evidence that he treated Mr Masri like any other customer, and he is expected to be proactive in seeking to assist customers;[115]

(b) This was the first time Mr Singh had interacted with Mr Masri and he had not previously seen him in the store;[116]

(c) Mr Singh gave evidence that he did not interact with Ms Zadeh on 12 March 2019;[117]

(d) Mr Masri did not refer to his wife during their interaction and Mr Singh did not know who she was.[118] Accordingly, it is not probable that the Applicants' marital status could have been the reason for Mr Singh's interaction with Mr Masri;

(e) Mr Singh gave further evidence that until reading the Claim he was not aware of the Applicants' religious beliefs;[119]

(f) Mr Singh's lack of knowledge in this regard also means that any claims of discrimination because of a personal association with someone who has one of these attributes is improbable;

(g) Mr Singh otherwise gave evidence that he has never treated Mr Masri unfavourably because of any of the personal attributes on which they rely in the Claim[120] and during cross-examination, specifically denied that he discriminated against the Applicants;[121]

(h) I am satisfied that there is no credible evidence that even if Mr Singh or any of the Costco employees were aware of the Applicants' marital status, race, religious belief or activity or their personal association with a person who has one of these attributes,[122] such knowledge did not affect or change the way in which Costco employees treated or interacted with the Applicants;[123] and

(i) Mr Masri did not, at any time during his interactions with Costco employees on this day, say that Costco was engaging in any of the alleged conduct because of any identified protected attribute.[124]

1. In my view, there is no credible evidence to support the Applicants' discrimination claim in respect of the 12 March Incident.

1. The Applicants allege that the 13 April Incident contravened ss 44(1)(a), (b) and (c) of the EO Act.[125]
2. Mr De Pasquale and Mr Thuraisingam gave evidence that Costco had ceased engaging security guards at this time. Accordingly, a security guard cannot have made eye contact with Mr Masri.[126]
3. Mr Thuraisingam also gave evidence that he offered to cancel Mr Masri's membership to try and find a solution to Mr Masri's complaints about his shopping experience at Costco.[127]
4. Mr Thuraisingam denies that he demanded that Mr Masri cancel his membership,[128] which is consistent with Mr Kurtulus' evidence regarding this interaction.[129]
5. Mr Masri's account of the conversation with Mr Thuraisingam is also improbable having regard to the terms upon which membership can be cancelled, namely, Costco was entitled to unilaterally cancel membership without notice or reason. However, as a matter of practice, Costco only cancels memberships for a good reason. Having regard to the preceding Incidents, I am satisfied that this is the more probable course of action chosen by Costco in relation to Mr Masri.
6. Similar to the previous Incidents, there is no allegation that Costco refused to provide services to the Applicants or that Costco provided any terms on which they would provide services to the Applicants, either in relation to the alleged eye contact from the security guard or the offer from Mr Thuraisingam to cancel Mr Masri's membership.
7. Accordingly, for the same reasons given in relation to the previous Incidents, there is no basis for the alleged 13 April Incident under ss 44(1)(a) or (b) of the EO Act.
8. I concur with the Respondent's Counsel that an offer to a member to manage their membership in the context of that member making persistent complaints about their shopping experience is not a detriment. Furthermore, there is a fee for Costco membership.[130] Mr Masri referred to the fact that he paid his membership fees and that it was 'not good enough' that he was being harassed immediately prior to Mr Thuraisingam offering to cancel Mr Masri's membership.[131]
9. I further concur with the Respondent's Counsel that, even if a security guard made eye contact with Mr Masri as alleged, this is not a detriment within the meaning of s 44(1)(c) of the EO Act.
10. Accordingly, the Applicants' claim under s 44(1)(c) of the EO Act must also fail.

Causal nexus between the 13 April Incident and the Applicants' protected attributes

1. If Costco engaged in conduct which could constitute discrimination in the provision of goods and services within the meaning of s 44(1) of the EO Act, then it is still necessary to consider whether such discrimination occurred because of any of the protected attributes relied on by the Applicants.
2. Mr Thuraisingam gave evidence that:

(a) He made this offer because Mr Masri was reporting repeated negative shopping experiences and because he did not see any other recourse;[132]

(b) He would have made the same offer to any member who was in the same position as Mr Masri, namely, telling Costco about repeated negative shopping experiences;[133] and

(c) The Applicants' race, religious beliefs or the fact of them being married was not and would never be a reason for his treatment of them[134] and he did not treat the Applicants unfavourably because of any of these attributes.[135]

1. Mr Kurtulus and Mr De Pasquale also proposed the same solution in response to Mr Masri's reports about his shopping experiences.[136]
2. Messrs De Pasquale, Thuraisingam, Kurtulus and Singh all gave evidence that the Applicants' marital status, race, religious belief or activity or their personal association with a person who has one of these attributes, to the extent that any of them were aware of these matters,[137] did not affect or change the way in which they treated or interacted with the Applicants.[138]
3. Mr Masri did not, at any time during his interaction with Costco employees on this day, say that Costco was engaging in any of the alleged conduct because the Applicants had any protected attribute.[139]
4. Accordingly, the Applicants' discrimination claim in respect of the 13 April Incident has not been made out and must fail.

1. On 16 April 2019 Mr Masri's membership was cancelled and a Trespass Notice was issued.[140]

Could such acts on the part of Costco constitute discrimination in the provision of goods and services?

1. The Respondent's Counsel concedes that these actions, separately or together, can constitute a refusal to provide services within the meaning of s 44(1)(a) of the EO Act.[141]
2. However, it also necessarily follows that these actions mean that Costco would not be providing services to the Applicants and accordingly there is no basis for any claims made under ss 44(1)(b) or (c).

Causal nexus between Membership Cancellation and Trespass and the Applicants' protected attributes

1. The Respondent's Counsel submitted to the effect that the reason Costco cancelled Mr Masri's membership and issued a Trespass Notice had nothing to do with any protected attributes relied on by the Applicants. Rather, it followed a period of approximately six months during which Mr Masri's behaviour was increasingly aggressive and erratic in nature. As a consequence, Costco managers held serious concerns for the safety of employees and customers.[142] The Incidents which occurred on 13 and 14 December 2018, 12 March 2019 and 13 April 2019 were recorded contemporaneously by Costco employees who also reported their concerns about Mr Masri's behaviour.[143] The oral evidence of Costco employees also confirmed those observations and concerns.
2. I am also satisfied that the video taken by Mr Masri in his apartment building conveyed quite a different picture to the account given by Mr Masri.[144] The video shows Mr Masri shouting and swearing at a young man and calling him a name. Mr Masri characterised this behaviour as 'being defensive and walking away'.[145] He then went on to give evidence that he was 'scared' and asked '[w]hat would you do when you're scared?'.[146] However, as indicated above, the male is not saying anything to Mr Masri and appears to be standing back and looking quite stunned.
3. It is not appropriate to speculate about what happened before the video was taken in the Applicants' building. However, it does raise the question as to whether Mr Masri is prone to react in a similar manner when he feels frustrated or perceives that he has been wronged in some way. Under cross-examination, Mr Masri denied that this was how he behaved at Costco.[147] Mr Masri did give evidence that he was frustrated,[148] and Ms Zadeh gave evidence that he was upset.[149]
4. I concur with the Respondent's Counsel that Mr Masri's behaviour in the video[150] is consistent with the description of his behaviour made by Costco staff members in the context of the various Incidents.
5. The Respondent's Counsel conceded that Messrs De Pasquale, Thuraisingam and Kurtulus, who were all involved in the cancellation of Mr Masri's membership and the issuing of a Trespass Notice, have given evidence of differing recollections as to the steps that Costco was going to take to manage Mr Masri's behaviour, specifically whether a Trespass Notice was going to be issued, the scope of that notice and whether Mr Masri's membership would be cancelled as well.[151] It is apparent that Mr Kurtulus understood that he had been instructed to cancel Mr Masri's membership and issue a Trespass Notice by Mr De Pasquale, through Mr Thuraisingam, and Mr De Pasquale understood that he had instructed Mr Kurtulus to issue a Trespass Notice for the Docklands Store only, though this is not specified in his email to Mr Thuraisingam.[152]
6. I agree that there is variation in the accounts given by the witnesses. However, such inconsistencies, in the circumstances, are of no real consequence and do not bear upon the question of discrimination or the relevance of the Applicants' protected attributes. At most, it indicates that the witnesses have not conspired to concoct an identical account.
7. As previously noted, not all misbehaviour or poor customer service or refusal to provide a service will constitute discrimination under the EO Act unless that conduct is connected to a protected attribute. As Member Dea correctly observed:
   1. The EO Act does not create an absolute right to services: section 44(1)(a) prohibits a service provider from refusing to provide services to a person because of one of the protected attributes. That provision does not prohibit a service provider from, even unfairly, refusing to provide services. Provided that the reason for refusing service is not connected to a protected attribute, there is no breach of the EO Act by a service provider who refuses to provide services.[153]
8. Accordingly, even if Mr Kurtulus acted unfairly towards Mr Masri when he misunderstood Mr De Pasquale's instructions, such an act is not discrimination unless this conduct was because of a protected attribute. I am not satisfied on the evidence that the act of cancelling Mr Masri's membership and issuing a Trespass Notice was in any way motivated because of a claimed protected attribute.
9. I am satisfied that there was credible evidence that Costco's concerns about Mr Masri's threatening behaviours were the sole reason Costco cancelled Mr Masri's membership and issued a Trespass Notice.[154] I further note that:

(a) Mr Kurtulus gave evidence that other Costco members expressed concerns about Mr Masri's threatening behaviour;[155]

(i) he did not want Mr Masri to shop at any Costco store because of Mr Masri's behaviour;

(ii) cancelling Mr Masri's membership was a reasonable thing to do based on Mr Masri's behaviour;

(iii) there was cause to cancel Mr Masri's membership;

(v) he wanted the cancellation to be maintained as he did not believe it was safe for Mr Masri to be attending the Docklands Store;[156]

(c) The reasonableness of the Membership Cancellation and Trespass Notice is emphasised by Proclaim, who confirmed that the Membership Cancellation and Trespass Notice would remain in place after being contacted by Mr Masri;[157]

(d) Mr Masri agreed that it would be reasonable for Costco to cancel a person's membership and issue a trespass notice against them if they had concerns that this person was a threat to the safety of their staff,[158] which were genuinely and reasonably held by Costco staff in relation to Mr Masri;

(e) In cross-examination, Mr De Pasquale gave evidence that neither he nor his employees discriminated against the Applicants;[159] and

(f) The relevant Costco employees who came into contact with the Applicants gave consistent evidence that the Applicants' marital status, race, religious belief or activity or their personal association with a person who has one of these attributes, to the extent that Costco employees were aware of these matters,[160] did not affect or change the way in which Costco employees treated or interacted with the Applicants.[161]

1. The Applicants bear the onus of proving the connection between their identified protected attributes and the Membership Cancellation and Trespass. When considering whether to draw an inference that one or more of the Applicants' protected attributes was the reason for the Membership Cancellation and Trespass, the Tribunal must be satisfied that there was no equally or more probable innocent explanation of the conduct.[162]
2. I am satisfied that Costco staff members' expressed concerns about Mr Masri's threatening behaviour were genuinely and reasonably held and that these concerns constitute the more probable and innocent explanation for the Membership Cancellation and Trespass.

1. Finally, the Applicants allege a further contravention of ss 44(1)(a), (b) and (c) of the EO by Costco's failure to follow its Membership Terms.
2. From on or about 2014 the Applicants were members of Costco.[163]
3. It is agreed between the parties that on 16 April 2019 Mr Masri's membership was cancelled.[164]
4. The membership term that the Applicants claim Costco failed to follow is:

Costco reserves the right to refuse membership to any applicant and membership is revocable without cause.[165]

1. Mr Masri gave evidence that Costco 'can cancel anybody's membership without any reason' and that these conditions were signed by the Applicants.[166] However, Mr De Pasquale and Mr Kurtulus gave evidence that as a matter of practice, Costco only take the step of cancelling a membership when they have reason to do so.[167]
2. In my view, the Applicants' claim is without any reasonable basis and is frivolous in nature.
3. Whilst the Costco membership terms permit unilateral cancellation of membership without cause, Costco elects to exercise a more membership friendly policy. I am satisfied that the evidence supports Mr Masri's membership having been cancelled because reasonably, Costco considered that he had behaved in an aggressive and threatening manner in store and was perceived to pose a risk to staff and other members.
4. The Costco membership terms and conditions also provide that membership is for a period of 12 months from the day of enrolment of the primary card holder and the primary member 'must authorise' the renewal of their membership each year.[168] The Applicants further complain that their membership continued without this approval being obtained.

Could the Failure to Follow Membership Terms constitute discrimination in the provision of goods and services?

1. I concur with the Respondent's Counsel that the allegation regarding Costco 'continuing' Mr Masri's membership is flawed. Mr Masri was the primary cardholder of the Applicants' membership.[169] This means that any act of 'continuing' the Applicants' membership was by Mr Masri in renewing his membership, not by any act of Costco. There is no sense in which this circumstance meets the definition of discrimination in the provision of goods and services within the meaning of ss 44(1)(b) and (c) of the EO Act as this is not conduct by Costco.
2. The Respondent's Counsel concedes that a failure by Costco to follow membership terms and conditions may constitute either a term on which goods and services are provided or subjecting a person to a detriment in connection with the provision of goods and services within the meaning of ss 44(1)(b) and (c) of the EO Act. However, as set out above, there was no failure by Costco to follow its membership terms and conditions so this part of the claim must also fail.

Causal nexus between the Failure to Follow Membership Terms and the Applicants' protected attributes

1. I am satisfied that there is no failure on the part of Costco to comply with its terms and conditions, as alleged, and accordingly no discrimination in terms of s 44(1) of the EO Act.
2. Furthermore, even if the Tribunal could find such a contravention in the circumstances alleged, there is no evidence that contravention was committed because of any of the protected attributes relied on by the Applicants.
3. Costco again relied upon the evidence of its employees to the effect that the Applicants' marital status, race, religious belief or activity or their personal association with a person who has one of these attributes, to the extent which Costco employees were aware of these matters,[170] did not affect or change the way in which Costco employees treated or interacted with the Applicants.[171]
4. I am satisfied that the Applicants' discrimination claim in respect of the alleged failure to follow Membership Terms has not been proven.

1. For the reasons given above, the Tribunal finds that the Applicants have not proven any of their Discrimination Allegations.
2. Furthermore, even if any of the discriminatory conduct, as alleged, had been committed, the Tribunal finds that there is no credible evidence that such conduct occurred because of any of the protected attributes relied upon by the Applicants.

1. The Applicants allege that Costco contravened s 104 of the EO Act by victimising:

(i) by the 13 December Incident because the Applicants 'previously have complain[ed] to the respondent management regarding applicants being hurt and humiliated at the respondent premises' (Previous Complaint);[172] and

(ii) where the Applicants are harassed and victimised wherever they go especially at shopping centres and were assaulted during Moomba in 2018 (Moomba and Shopping Incidents) because of the Previous Complaint;[173] and

(i) 12 March Incident because Mr Masri filed a complaint in respect of the incident on 13 December 2018 with Costco's customer service department (Customer Service Complaint);[174]

(ii) 13 April Incident because of the Customer Service Complaint;[175]

(iii) Membership Cancellation and Trespass because of the Customer Service Complaint;[176] and

(iv) Failure to Follow Membership Terms because of the Customer Service Complaint;[177]

1. In their Further Particulars, the Applicants purport to make claims of victimisation assuming s 97(1)(a) under the Equal Opportunity Act 1995 (Vic) (the old EO Act) was still operative. The Applicants acknowledged that they had not previously brought any legal dispute against the Respondent.[178]
2. The old EO Act was repealed by s 191 of the (current) EO Act. In any event, the Applicants did not become members of Costco until 2014.
3. Sections 97(1)(a) and (b) of the old EO Act provided that a prohibited reason for which a person can victimise another person is if a person:

(b) has brought any other proceeding under this Act against any person ...

1. Section 4 of the old EO Act defined 'complaint' as a 'complaint lodged under section 105'. Section 105 of the old EO Act refers to a complaint made to the Commission, which in turn is defined as 'The Equal Opportunity Commission'.
2. Section 104 of the EO Act (set out in full above) currently provides in part that a prohibited reason for which a person can victimise another person is if a person:

(b) has made a complaint against any person under the old Act;

(c) has brought any other proceedings under this Act or the old Act against any person ...

1. Clearly the Applicants made no complaint and brought no proceeding under the old EO Act. Accordingly, any complaint by way of victimisation made by reference to the old EO Act is inapplicable and irrelevant.
2. The remaining issues are whether Costco has or threatened to subject the Applicants to a detriment and a substantial reason for doing so was because the Applicants had engaged in conduct set out in sub-paragraphs (a)-(h) of s 104(1).
3. I concur with Respondent Counsel's submission that the Applicants do not identify which of the sub-paragraphs (a)-(h) of s 104(1) of the EO Act the Previous Complaint relied upon falls into. There is only a general reference to:

The respondent [has] victimised the applicants because applicants previously have complain[ed] to the respondent management regarding applicants being hurt and humiliated at the respondent premises.[179]

1. Furthermore, neither the Masri Statement nor the Zadeh Statement identify the conduct which constitutes the Previous Complaint.[180]
2. At the Hearing, in response to my inquiry seeking clarification, Mr Masri identified that he recalls speaking with Mr Kurtulus prior to 13 December 2018.[181] Mr Masri then stated:

I believe there was a John... I spoke to him a few times, but after that he disappeared. I spoke to actually a few different supervisors, one of them - the main one who I spoke to the most witness statement Mr Turk.[182]

1. Mr Masri did not identify anyone else who gave evidence in this proceeding who he alleges to have spoken to prior to 13 December 2018.[183] It is further noted that a 'John' is not referred to in the Further Particulars, the Masri Statement or the Zadeh Statement.
2. The Applicants submit that they were not living in Victoria in mid-2016 at the time at when Mr Kurtulus stated that he first interacted with the Applicants.[184] I note that this matter was not put to Mr Kurtulus in cross-examination despite an exchange on this topic.[185]
3. Accordingly, I am not satisfied that the Applicants have identified or proven that they engaged in conduct, by way of Previous Complaint, for which they could be victimised within the meaning of the EO Act.
4. I note and accept the objection made by the Respondent's Counsel to the inclusion of any further particulars being added to the claim during the Hearing.[186]
5. In any event, in my view it is worth recording that the 'previous complaints' which Mr Masri sought to raise were far-fetched and vague accusations without any objective verification or connection to Costco.[187]
6. The further objections raised by the Respondent's Counsel, in my view, are self-evident, namely:

(a) None of these previous complaints amounted to conduct which fell within any of the sub-paragraphs (a)-(h) of s 104(1) of the EO Act;

(b) For the previous complaints to fall within s 104(1)(g) of the EO Act, the Applicants must establish that any such complaint:[188]

(i) alleged a contravention of Part 4, 6 or 7 of the EO Act or Part 3, 5 or 6 of the old EO Act;

(c) For a complaint to allege a contravention of Part 4, 6 or 7 of the EO Act or Part 3, 5 or 6 of the old EO Act, it must allege discrimination, sexual harassment, victimisation, authorising or assisting discrimination or a discriminatory request for information.[189] Although it does not need to be stated that the EO Act, or a provision of the EO Act, has been contravened,[190] it does need to be a 'complaint about a particular act which was capable of amounting to a breach of the EO Act'.[191] Mistreatment, or perceived mistreatment, is not capable of being a breach of the EO Act unless it is a type of conduct prohibited by the EO Act and the conduct was engaged in because of a prohibited reason. In the case of discrimination, this means a type of discrimination prohibited by Part 4 because of the victim's protected attribute. Whether a complaint or allegation satisfies these criteria is a question of fact;[192]

(d) In this regard, neither of Mr Masri's interactions with Mr Kurtulus prior to 13 December 2018 are capable of being a complaint within the meaning of s 104(1)(g) of the EO Act because Mr Masri did not allege that any of this conduct was occurring because of any protected attribute;[193]

(e) The conduct complained of by Mr Masri (that Costco staff were following Mr Masri, watching/observing him, sharing his personal details, or that his account had been hacked) bears no relation to the provision of goods and services and cannot amount to a complaint of a breach of Part 4 of the EO Act even if any such conduct were connected to a protected attribute; and

(f) The Applicants have not adduced any evidence of the conduct which was complained of on these occasions. I note Mr Masri's concession that he has made allegations against Costco or attributed conduct to Costco where he has no evidence that Costco was involved in these events.[194]

1. I am satisfied that there is no credible evidence of any previous complaints which could constitute conduct under sub-paragraphs (a)-(h) of s 104(1) which could in turn sustain a complaint of victimisation.

1. Even if a previous complaint had been found under s 104(1), by reason of the findings above, the victimisation claim must fail because the Applicants were not subjected to a detriment or threatened to be subjected to a detriment by the 13 December Incident.
2. Even if it were found that the Applicants were subjected to a detriment, I am satisfied that there is no credible evidence that the Applicants were subjected to a detriment because of any previous complaint. I rely upon the following evidence and circumstances:

(a) Costco staff gave evidence that Mr Masri was behaving aggressively at the store. Mr Rajar's witness statement provides a contemporaneous account of the reasons why he engaged with Mr Masri, namely, that Mr Masri was behaving aggressively at the registers;[195]

(b) It is not apparent that any person that Mr Masri interacted with on that day knew that Mr Masri had ever made previous complaints to Costco:

(i) Mr Thuraisingam gave evidence that on 13 December 2018, he was not aware that the Applicants had made any prior complaints to Costco;[196] and

(ii) In the brief to Proclaim regarding whether Mr Masri had made any prior complaint about harassment by Costco staff members, Mr Thuraisingam wrote that he '[p]otentially referenced an unknown situation from 4 years ago. No details are available' and referred to Mr Masri's complaint a few days earlier about which Mr Kurtulus had prepared an incident report;[197]

(c) Mr Kurtulus gave evidence that he did not prepare a written report nor take the matter further on the advice of a colleague;[198] and, in response to their second interaction, he was unsure if this matter was taken up or by whom;[199] and

(d) The Applicants have failed to adduce any evidence of a causal link between the 13 December Incident and any previous complaints or any evidence 'from which it would be safe to draw an inference of a causal link'.[200]

1. Even if I had found that the Applicants were subjected to a detriment because of any previous compliant, then I could not be satisfied that it was the substantial reason the Applicants were subjected to a detriment. I again refer to the evidence of Mr Rajar and others who interacted with Mr Masri on that date that they had no knowledge of Mr Masri's previous complaint/s.
2. Accordingly, the Applicants' claim based on previous complaint/s and the 13 December Incident has not been made out and must fail.

Claim based on the Moomba and Shopping Incidents

Did Costco subject the Applicants to a detriment by the Moomba and Shopping Incidents?

1. These complaints have been addressed above and dismissed as both unfounded and irrelevant to the Claim.

Victimisation Based on the Customer Service Complaint

Did the Applicants engage in conduct set out in sub-paragraphs (a)-(h) of s 104(1)?

1. The Applicants rely upon the complaint filed in relation to the 13 December Incident with Costco's Customer Service Department.[201]
2. As above, it is not sufficient to establish that the Customer Service Complaint was made, it must also have been conduct set out in sub-paragraphs (a)-(h) of s 104(1) of the EO Act.
3. The Applicants have not identified which of the sub-paragraphs (a)-(h) of s 104(1) of the EO Act the Customer Service Complaint is claimed to fall into. Accordingly, this claim must fail.
4. For the Customer Service Complaint to fall within s 104(1)(g) of the EO Act, the Applicants must establish that a previous complaint:

(a) alleged a contravention of Part 4, 6 or 7 of the EO Act or Part 3, 5 or 6 of the old EO Act;

1. Referring to the authorities cited above in relation to the previous complaints, the Customer Service Complaint is not capable of being a complaint within the meaning of s 104(1)(g) of the EO Act because it does not allege a contravention of Part 4, 6 or 7 of the EO Act or Part 3, 5 or 6 of the old EO Act.
2. A complaint that a person is abusive and/or rude in their communications to another person, which was the content of the Customer Service Complaint, is not a complaint of the kind referred to in s 104 of the EO Act.[202] Mr Masri did not allege that any of this conduct was occurring because of any protected attribute,[203] as was noted in Allie, which also involved a person who was banned from attending a service provider because of his conduct towards staff.[204]
3. If the Customer Service Complaint is found to allege a contravention of Part 4, 6 or 7 of the EO Act or Part 3, 5 or 6 of the old EO Act, it will nonetheless not be a complaint within the meaning of s 104(1)(g) of the EO Act because it is false or not made in good faith. I refer to my findings above where the Mr Masri's account of the 13 December Incident was not accepted.

Did Costco subject the Applicants to a detriment by the 12 March Incident?

1. If it is found that the Customer Service Complaint was a complaint within the meaning of s 104(1)(g) of the EO Act, then the victimisation claim in relation to the 12 March Incident will nonetheless fail because, consistent with the above findings, Mr Masri was not subjected to a detriment or threatened to be subjected to a detriment by this Incident.[205]

Were the Applicants subjected to a detriment by the 12 March Incident because of the Previous Complaint?

1. Even if the Applicants were subjected to a detriment by the 12 March Incident, there is no credible evidence that the Applicants were subjected to such detriment because of the Customer Service Complaint.
2. Mr Singh gave evidence that when he interacted with Mr Masri at Costco on 12 March 2019, he had never met Mr Masri before and could not identify Mr Masri by name when reporting the incident to Mr Thuraisingam.[206] Without knowing who Mr Masri was, Mr Singh could not have victimised Mr Masri in respect of any previous interaction Mr Masri had had with Costco, let alone the Customer Service Complaint specifically. There is also no evidence that Mr Singh was aware of the Customer Service Complaint.
3. I am satisfied that the Applicants have failed to adduce any evidence of a causal link between the 12 March Incident and the Customer Service Complaint and have not adduced any evidence 'from which it would be safe to draw an inference of a causal link'.[207]

Were the Previous Complaints the substantial reason the Applicants were subjected to a detriment by the 12 March Incident?

1. Even if I had found that Mr Masri was subjected to a detriment by the 12 March Incident because of the Customer Service Complaint, then I could not be satisfied that it was the substantial reason Mr Masri was subjected to a detriment. Mr Singh's gave evidence that he did not know who Mr Masri was when he saw him on 12 March 2019.
2. Accordingly, there is no basis for the Applicants' claim based on the Customer Service Complaint and the 12 March Incident.

Did Costco subject the Applicants to a detriment by the 13 April Incident?

1. Even if I had found that the Customer Service Complaint was a complaint within the meaning of s 104(1)(g) of the EO Act, then the victimisation claim in relation to the 13 April Incident still fails because Mr Masri was not subjected to a detriment or threatened to be subjected to a detriment by these events.[208] I refer to my findings above in regard to the 13 April Incident.

Were the Applicants subjected to a detriment by the 13 April Incident because of the Customer Service Complaint?

1. Even if I had found that the Applicants were subjected to a detriment by the 13 April Incident, the Applicants were not subjected to a detriment because of the Customer Service Complaint.
2. I am satisfied that the offer to cancel Mr Masri's membership was made as a means of Mr Thuraisingam trying to resolve the negative shopping experiences which he was reporting in the context of Costco providing a paid service to Mr Masri.
3. Furthermore, I am not satisfied that the Applicants have proven any causal link between the 13 April Incident and the Customer Service Complaint, nor have they adduced any evidence 'from which it would be safe to draw an inference of a causal link'.[209]

Was the Customer Service Complaint the substantial reason the Applicants were subjected to a detriment by the 13 April Incident?

1. The mere fact that Mr Thuraisingam was aware of the Customer Service Complaint does not mean it was a substantial reason for his interactions with Mr Masri on 13 April 2019. There must be evidence, or evidence from which an inference can be drawn, to support that conclusion and none has been adduced.[210]
2. Accordingly, the Applicants' claim based on the Customer Service Complaint and the 13 April Incident has not been made out and must fail.

Were the Applicants subjected to a detriment by the Membership Cancellation and Trespass Notice because of the Customer Service Complaint?

1. Even if I had found that the Customer Service Complaint was a complaint within the meaning of s 104(1)(g) of the EO Act and that the Membership Cancellation and Trespass Notice was a detriment, there is no credible evidence that the Membership Cancellation and Trespass Notice (the detriment) took place because of the Customer Service Complaint.
2. As noted above, Mr De Pasquale gave directions to Mr Thuraisingam which were passed onto Mr Kurtulus, who enacted the Membership Cancellation and issued the Trespass Notice (albeit with some confusion among these Costco staff members about precisely what action was to be taken).
3. Nevertheless, I am satisfied on the evidence given by Costco staff that the Membership Cancellation and Trespass Notice were steps that were taken because of Mr Masri's threatening behaviour in store (specifically, Mr Masri's escalating aggression, threatening presence and the perceived risk that he posed to the safety of staff and other members). It is both reasonable and sufficient that these were the sole reasons Costco cancelled Mr Masri's membership and issued a Trespass Notice.[211] This was maintained in cross-examination[212] and further evidence was given by Mr Kurtulus about the concerns expressed by some Costco members about Mr Masri's behaviour.[213]
4. Mr De Pasquale gave evidence that:
   1. [a]ll the steps that were taken by me and Costco in relation to Mr Masri and the membership of him and Ms Zadeh was about the safety of our staff and other members[214] ...

1. I did determine that a Trespass Notice should be issued in relation to Mr Masri but this was not for any prohibited reason. I made this decision entirely based on my concerns for the safety of Costco staff and customers as I have set out above.[215]
2. When Mr De Pasquale was asked in cross-examination whether it was reasonable to issue a Trespass Notice against a person who reported discrimination, Mr De Pasquale gave evidence that he did not believe Mr Masri had been discriminated against and this was not why a Trespass Notice was issued.[216] This is consistent with Mr De Pasquale's evidence that prior to the making of the Customer Service Complaint, and in response to being advised Mr Masri had called Costco reception a number of times in relation to the 13 December Incident, Mr De Pasquale had already suggested to Fiona Chojnacki, HR Director, that he could send her the incident report which had been completed and the matter could be referred to Proclaim.[217] I am satisfied that in following such procedure, Mr De Pasquale was not victimising Mr Masri for making the Customer Service Complaint.
3. Mr Kurtulus also gave evidence that he did not know whether Mr Masri had put in a complaint to headquarters.[218]
4. In the decision of Parr v Steamrail Victoria,[219] the Tribunal considered a ban imposed on the applicant by Steamrail Victoria, an incorporated association, by the members of the association. Senior Member McKenzie found that where the only evidence was of the applicant's behaviour in the minds of the decision makers, there could be no inference that the allegation made by the applicant was the substantial reason for the decision:
   1. ... I am not satisfied that the third element has been made out. I am not satisfied that the allegation was a substantial reason for the decision made at the meeting of members to continue Mr Parr's ban. The only evidence about the reasoning of the members is general and is that Mr Parr's abusive behaviour was a factor in the decision. There is no evidence about how many of the members voting at that meeting had that reason in mind. There is no evidence at all that they had in mind any other reason, such as the allegation made. It would need to be a matter of inference. I am not prepared to draw that inference because there is insufficient evidence to do so [emphasis added].[220]
5. In this case, Costco employees have given consistent evidence that Mr Masri's conduct and behaviour in store was the reason for the Membership Cancellation and Trespass Notice. There is no evidence that the Costco employees had the Customer Service Complaint in their mind at the time of the Membership Cancellation and Trespass Notice, nor is there evidence from which this inference can be drawn. I also place weight upon the contemporaneous reports by Costco employees of their concerns about Mr Masri's behaviour as showing what was in their minds.[221]
6. In considering a claim of victimisation in the context of a refusal to grant a person membership to a club, Member Phillips held that:
   1. [The Applicant] disagrees with the fairness of the decision, but victimisation does not require a justified decision, simply that the decision has not been based on her complaint to the Commission.[222]
7. In this case, although Costco maintains its position that the Membership Cancellation and Trespass Notice was an entirely justified decision because of Mr Masri's conduct in store, it does not have to be: the Applicants need to prove that the Membership Cancellation and Trespass Notice was based on the Customer Service Complaint.
8. I am satisfied that the Applicants have failed to adduce any evidence of a causal link between the Membership Cancellation and Trespass Notice and the Customer Service Complaint, and have not adduced any evidence 'from which it would be safe to draw an inference of a causal link'.[223]

Was the Customer Service Complaint the substantial reason the Applicants were subjected to a detriment by the Membership Cancellation and Trespass Notice?

1. As cited above, the Tribunal has noted that 'awareness does not mean that this issue was a "substantial reason" for the decision'.[224]
2. The Tribunal has also found that in cases where it is obvious that the relevant decision makers were aware of the complaint, and denying that it was a motivating force for their decision, it is 'in the hands' of the applicant to prove that the complaint was the 'substantial reason' for the decision.[225]
3. There is no credible evidence given by the Applicants that the Customer Service Complaint was the substantial reason that Costco decided upon the Membership Cancellation and Trespass Notice.
4. In Allie, the Tribunal held that a person may be told that they will not be provided services because they had made a complaint but it does not follow that this person has been victimised.[226]
5. In the same decision, Member Dea found that services were refused to be provided to the applicant because of his conduct, which included threats of legal action:
   1. ... I find that Dr Rillstone and Ms Hawke decided that Mr Allie's manner and personal behaviour was not acceptable because staff were upset by his raised voice, hostility and threats of legal action. I accept Dr Rillstone's evidence that the staff found the references to taking legal action to be upsetting. I find that the personal impact of the references to legal action on staff was relevant to the decision and not because there was any suggestion of a claim being made under the EO Act.[227]
6. The same can be said of Mr Masri's conduct here. It is not disputed that Mr Masri made complaints in store. However, it was Mr Masri's behaviour in store and when making these complaints that was the reason for the Membership Cancellation and Trespass Notice. Mr Thuraisingam succinctly put it as:

Mr Masri's body language and aggressive behaviour ... over a series of interaction[s] beginning from 13 December.[228]

1. In cross-examination, Mr De Pasquale was asked about the managers and supervisors who raised issues with Mr Masri and whether they provided statements because Mr Masri complained to them.[229]
2. In re-examination, Mr De Pasquale was asked what concerns were raised with him and gave evidence that he was of the view that the managers and supervisors raised issues with him because:

Any time there was interaction when Mr Masri made a complaint regarding - whether it was Harry [Singh], whether it was a security guard, they felt - and I know that in my interaction in December, although there's no physical altercations, just the mannerisms and the body language really became aggressive. And whenever it gets to that situation, obviously we're concerned. But for it to be repeated - that's why it sort of led towards that trespass notice being issued.[230]

1. The Applicants rely upon the recording of the telephone conversation between Mr Masri and Mr Kurtulus on 16 April 2019 as supporting their claim that Mr Masri's membership was being cancelled because Mr Masri made complaints.[231]
2. In the Kurtulus Statement, the telephone conversation is extracted as follows:

We honestly don't want you to come to Costco anymore because you're making a lot of our staff feel uncomfortable. We also feel that we are not meeting your expectations because you keep complaining about us.[232]

(a) Mr Kurtulus clearly states that it is Mr Masri's behaviour that is the reason that Costco does not want him to shop there anymore; and

(b) that Costco understands that it is not meeting Mr Masri's expectations because of the complaints he has made.

1. Furthermore, this is consistent with Mr Thuraisingam offering to cancel Mr Masri's membership to try and find a solution to Mr Masri's complaints about his shopping experience at Costco.[233]
2. I also note the evidence regarding:

(a) repeated offers by Costco employees to Mr Masri to make further complaints if he was dissatisfied with the service that he was being provided on other occasions;[234]

(b) Mr De Pasquale's advice to Mr Masri to come and contact him directly if he had any trouble the next time he visited the store; and

(c) Costco's treatment of complaints from members both in general and in relation to the Customer Service Complaint.[235]

1. Consistent with this approach, in relation to the complaints which Mr Masri made about the 13 December Incident specifically, prior to the Customer Service Complaint being made Mr Thuraisingam had already alerted his supervisor, Mr De Pasquale, about the events[236] and both Mr De Pasquale and Mr Thuraisingam had taken Mr Masri's complaint regarding the 13 December Incident seriously and had taken steps to thoroughly investigate what Mr Masri had alleged.[237] Mr De Pasquale and Mr Thuraisingam then fully cooperated with the Proclaim investigation of this matter.[238]
2. Even if I had found that the Customer Service Complaint was a reason for the Membership Cancellation and Trespass Notice, there is no evidence upon which I can infer that it was the substantial reason. The Applicants' claim based on the Customer Service Complaint and the Membership Cancellation and Trespass Notice has not been made out and must fail.

Did Costco subject the Applicants to a detriment by a Failure to Follow Membership Terms?

1. Even if I had found that the Customer Service Complaint was a complaint within the meaning of s 104(1)(g) of the EO Act, then the victimisation claim must still fail because the Applicants were not subjected to a detriment or threatened to be subjected to a detriment by the failure to follow Membership Terms.
2. I refer to findings above to the effect that the failure to follow Membership Terms is fundamentally flawed and cannot constitute a detriment to the Applicants.

Were the Applicants subjected to a detriment by a Failure to Follow Membership Terms because of the Customer Service Complaint?

1. If it is found that the Applicants were subjected to a detriment by the Failure to Follow Membership Terms, the Applicants were not subjected to a detriment because of the Customer Service Complaint.
2. The Applicants have failed to adduce any evidence of a causal link between the Failure to Follow Membership Terms and the Customer Service Complaint, nor have they adduced any evidence 'from which it would be safe to draw an inference of a causal link'.[239]

1. For the reasons given above, the Tribunal finds that the Applicants have not proven any of their Victimisation Allegations.

1. For the reasons given, the Tribunal finds that the Respondent has not contravened the provisions of the EO Act as alleged by the Applicants.
2. Accordingly, the Application will be dismissed.

[1] [1938] HCA 34; (1938) 60 CLR 336 at 362 per Dixon J.

[2] [2002] FCAFC 196 (21 June 2002) [40].

[3] Mohamed-Ali v Australian Leisure and Hospitality Group Pty Ltd (Human Rights) [2014] VCAT 1590 (22 December 2014) (Mohamed-Ali) at [17]-[18].

[4] The absence of any such extension was clarified in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13; cited with approval in Waterhouse v Bell (1991) 41 IR 435.

[5] Witness statement of Charlie De Pasquale dated 2 June 2020 (De Pasquale Statement), [7].

[6] Applicants' Closing Submissions [2]-[3], [6].

[8] De Pasquale Statement, Attachment CP-1**.**

[9] De Pasquale Statement, [15] and [20]; witness statement of Harry Singh dated 2 June 2020 (Singh Statement), [7] and witness statement of Krishna Thuraisingam dated 4 June 2020 (Thuraisingam Statement), [6] and [8].

[10] De Pasquale Statement, [15]-[20]; Singh Statement, [6]-[7]; Thuraisingam Statement, [6]-[8] and [10], witness statement of Turgut Kurtulus dated 3 June 2020 (Kurtulus Statement), [6]-[8] and Tr 198:2-13, 229:3-10, 248:29-31, 249:1-11, 277:25-31 and 278:1-10.

[11] Response to Particulars [46]-[93].

[12] Applicants' Closing Submission [30], [33], [38] and [42].

[13] Transcript (Tr) 49:1-31; 50:1-31; 51:1-6; 47:29-31, 48:25-31, 53:10-13, 55:2-5, 57:8-11, 81:15-18 and, in discussion with her Honour Judge Jenkins, 159:27-31; 160:1. See also Applicants' Submissions [45].

[14] Applicants' Closing Submission [45].

[15] Detailed under Part C of the Applicants' Closing Submission.

[20] Tr 187:2-3, 192:7, 204:18-19, 211:21-27, 216:1-2, 231:26-29, 250:19-20, 250:21-26, 255:26 and 274:3-7.

[21] Thuraisingam Statement, [20]-[22] and KT-2.

[22] Thuraisingam Statement, [11]-[12].

[24] Thuraisingam Statement, [15]-[17].

[25] Thuraisingam Statement, [19]-[23]

[27] De Pasquale Statement, [25]-[27].

[28] De Pasquale Statement, [28]-[34].

[29] De Pasquale Statement, [37] and Thuraisingam Statement, [26].

[30] De Pasquale Statement, [38]-[41].

[31] CP-5 to the De Pasquale Statement.

[32] De Pasquale Statement, [40], [42] and [43].

[33] CP-4 to the De Pasquale Statement.

[34] CP-5 to the De Pasquale Statement.

[35] De Pasquale Statement, [45] and Thuraisingam Statement, [27]-[34].

[41] Further Particulars, [15]; and Applicants' Closing Submission [63]-[64] and [66].

[44] Singh Statement, [15] and Thuraisingam Statement, [35].

[45] Singh Statement, [16]-[17]; Kurtulus Statement, [28] and Thuraisingam Statement, [37]-[38].

[46] Singh Statement, [18] and Thuraisingam Statement, [41].

[48] Thuraisingam Statement, [39]-[42] and [48].

[49] Thuraisingam Statement, [44]-[45].

[50] Singh Statement, [14] and Tr 247:26-29.

[51] Thuraisingam Statement, [47]-[48] and De Pasquale Statement, [47]-[50].

[53] Applicants' Closing Submission [71-73].

[57] Thuraisingam Statement, [50]-[52].

[58] Thuraisingam Statement, [54] and [55], and Kurtulus Statement, [38]-[40].

[59] Thuraisingam Statement, [55] and [60] and Kurtulus Statement, [43].

[60] De Pasquale Statement, [24] and Thuraisingam Statement, [50].

[61] Thuraisingam Statement, [61] and [62].

[63] Thuraisingam Statement, [63] and De Pasquale Statement, [54].

[64] Thuraisingam Statement, [53]-[55] and Tr 241:9-12.

[66] Kurtulus Statement, [38]-[39].

[67] De Pasquale Statement, [57]-[58] and Kurtulus Statement, [58].

[71] Applicants' Closing Submission dated 15 November 2020, [1]-[7].

[73] Applicants' Closing Submission [22]-[25], [27].

[74] Kurtulus Statement, [9]-[11], [15]. Mr Masri was accompanied by a woman, whom Mr Kurtulas assumed was his partner, but she did not say anything [13].

[75] Kurtulus Statement, [12] and [16].

[79] Applicants' Closing Submissions [39] and [40]-[41].

[80] De Pasquale Statement, [21]-[23] and Tr 269:21.

[81] De Pasquale Statement, [23] and Tr 205:3-14.

[82] Applicants' Closing Submissions [58].

[83] De Pasquale Statement, [21]-[24].

[85] See Tr 186:19-27; De Pasquale Statement, [37]-[41] and [43]-[45] and Thuraisingam Statement, [19]-[34]; Tr 275:22-31 and 276:1-5.

[86] Thuraisingam Statement, [9]-[10]; Tr 218:25-30 and 282:11-14; and Kurtulus Statement, [24] regarding his steps to upload Mr Masri's complaint to Elumina which Mr Kurtulus did without being aware of the Customer Service Complaint (see Tr 224:24-27).

[92] Applicants' Submissions, page 6, dot point 1.

[93] Applicants' Submissions [122], dot point 2.

[95] In relation to the Moomba incident, Exhibit AM-46 is a clinical report in which Mr Masri reports to a doctor that he was assaulted at Moomba. However, such report does not constitute evidence of any relationship to Costco or its employees.

[96] Tr 86:15-18; 86:19-27, 116:7-12 and Mr Masri's comment in discussion with her Honour Judge Jenkins at Tr 41:3-11; and also 137:26-31 and 138:1-10.

[101] De Pasquale Statement, [83] and Kurtulus Statement, [85].

[104] De Pasquale Statement, [37]-[46] and Thuraisingam Statement, [19]-[23]. See also the evidence of Mr De Pasquale at Tr 209:12-31, 210:1-2, 210:22-31, 211:1-14 and 277:21-24.

[108] De Pasquale Statement, [37]-[46] and Thuraisingam Statement, [19]-[23]. See also the evidence of Mr De Pasquale at Tr 209:12-31, 210:1-2, 210:22-31, 211:1-14 and 277:21-24.

[109] Thuraisingam Statement, [21]-[23] and [29]-[33]; De Pasquale Statement, [39], [41] and [46].

[110] Applicants' Closing Submission [23]-[24].

[111] De Pasquale Statement, [20], [71]-[73] and [76]; Thuraisingam Statement, [8], [10], [67]-[70] and [72]; Kurtulus Statement, [8], [71]-[74] and [77]; and Singh Statement, [7] and [24]-[25].

[112] Thuraisingam Statement, [14] and Tr 58:5-16 and 128:22-28.

[113] Singh Statement, [9] and [24], Thuraisingam Statement, [36] and Tr 247:22-25.

[114] Tr 134:7-10 and Further Particulars, [15A].

[115] Singh Statement, [9] and [29]; Thuraisingam Statement, [36] and Tr 247:22-25.

[117] Tr 247:16-21 and Singh Statement, [23].

[122] De Pasquale Statement, [28], [35], [36] and [74]-[75]; Thuraisingam Statement, [59] and [70]-[71]; Kurtulus Statement, [13], [14], and [75]-[77]; and Singh Statement, [23] and [26].

[123] De Pasquale Statement, [20], [71]-[73] and [76]; Thuraisingam Statement, [8], [10], [67]-[70] and [72]; Kurtulus Statement, [8], [71]-[74] and [77]; and Singh Statement, [7] and [24]-[25].

[124] Thuraisingam Statement, [46]; Kurtulus Statement, [47], Singh Statement, [21] and Tr 75:10-20.

[126] De Pasquale Statement, [24] and Thuraisingam Statement, [50].

[127] Thuraisingam Statement, [53]-[55] and Tr 241:9-12.

[129] Kurtulus Statement, [38]-[39].

[130] De Pasquale Statement, [7] and CP-1.

[134] Thuraisingam Statement, [70]-[72].

[135] Thuraisingam Statement, [67] (including the attribute of personal association).

[136] Kurtulus Statement, [40] and[48], and De Pasquale Statement, [33] and [61].

[137] De Pasquale Statement, [28], [35], [36] and [74]-[75]; Thuraisingam Statement, [59] and [70]-[71]; Kurtulus Statement, [13], [14] and [75]-[77]; and Singh Statement, [23] and [26].

[138] De Pasquale Statement, [20], [71]-[73], and [76]; Thuraisingam Statement, [8], [10], [67]-[70] and [72]; Kurtulus Statement, [8], [71]-[74] and [77], and Singh Statement, [7] and [24]-[25].

[139] Thuraisingam Statement, [59]; Kurtulus Statement, [47] and Tr 79:24:31.

[140] The parties agreed these actions were taken: Kurtulus Statement, [60]-[61] and Masri Statement, [29].

[141] Closing Submissions of the Respondent [73].

[142] De Pasquale Statement, [34], [42], [51], [55] and [77]; Thuraisingam Statement, [12], [26], [41]-[42], [47]-[48] and [60]-[62]; Kurtulus Statement, [20], [28], [49], [51] and [56]-[57] and Singh Statement, [10], [13] and [20].

[143] De Pasquale Statement, [42] and [66]; Thuraisingam Statement, [26], [47], [61] and [62] and Kurtulus Statement, [51]-[52].

[151] De Pasquale Statement, [54], [58] and [64]; Thuraisingam Statement, [63]-[65] and Kurtulus Statement, [52]-[53], [57]-[59], [65] and [68]-[69]. See also Tr 192:20-31, 193:1-17, 218:10-24, 257:12-13 and 257:28-31.

[153] Allie v Allied Medical Group Pty Ltd [2016] VCAT 728 at [49] (Allie).

[154] De Pasquale Statement, [54]-[55], [64]-[65], [69] and [77]; and Kurtulus Statement, [56]; also under cross-examination: Tr 192:14-19, 216:20-27, 217:28-30 and 256:15-18.

[155] Tr 231:1-9, 238:26-31, 239:1-31 and 240:1-2.

[156] De Pasquale Statement, [56], [64]-[65], [67] and [69] and CP-11; and Tr 206:6-11.

[157] De Pasquale Statement, CP-11 and CP-12.

[158] Tr 81:25-31, 82:1-10, 84:8-31 and 85:7-13.

[159] Tr 198:18-23 and see also the evidence of Mr Singh at 249:12-16.

[160] De Pasquale Statement, [28], [35], [36] and [74]-[75]; Thuraisingam Statement, [59] and [70]-[71]; Kurtulus Statement, [13], [14] and [75]-[77]; and Singh Statement, [23] and [26].

[161] De Pasquale Statement, [20], [71]-[73] and [76]; Thuraisingam Statement, [8], [10], [67]-[70] and [72]; Kurtulus Statement, [8], [71]-[74] and [77], and Singh Statement, [7] and [24]-[25].

[163] It is noted that Mr De Pasquale's evidence is that the Applicants were members from 20 January 2014 (De Pasquale Statement, [12]) and the Applicants raised at hearing that this was inaccurate and that they were members from late 2014 in Canberra (Tr 12:13-27, 13:12-15).

[164] Kurtulus Statement, [60]-[61] and Masri Statement, [29].

[167] De Pasquale Statement, [9] and [69]; and Kurtulus Statement, [56].

[169] Masri Statement, [2] and Zadeh Statement, [2].

[170] De Pasquale Statement, [28], [35], [36] and [74]-[75]; Thuraisingam Statement, [59] and [70]-[71]; Kurtulus Statement, [13], [14] and [75]-[77]; and Singh Statement, [23] and [26].

[171] De Pasquale Statement, [20], [71]-[73] and [76]; Thuraisingam Statement, [8],[10], [67]-[70] and [72]; Kurtulus Statement, [8], [71]-[74] and [77]; and Singh Statement, [7] and [24]-[25].

[178] Further Particulars, [14B], [15B], [16B], [17B], [18B] and [19A].

[180] At paragraph 12 of the Zadeh Statement, Ms Zadeh states that '[m]y husband communicated the harassment and the employees' behaviour to Costco's management many times' and at paragraph 13 of the Masri Statement, Mr Masri states '... when I verbally communicated the above -on many occasions- to the respondent management, every time the respondent management promised me to have a talk with the respondent employees.'

[183] Tr 18:1-24. See also Tr 15:8-20, 149:15-20, 150:1-7, 152:24-38, 153:29-31 and 154:1-3.

[184] Applicants' Submissions, [115].

[187] Kurtulus Statement, paragraphs [9]-[11] and [18]: Mr Kurtulus gave evidence that Mr Masri had made allegations against Costco staff to him on two occasions: in summary, Costco staff were following Mr Masri, including following Mr Masri home, that Costco staff were sharing his personal details, that Mr Masri was being watched and observed and his account had been hacked.

[188] Refer Davidson v QUBE Logistics (Vic) Pty Ltd [2020] VCAT 573 at [65], complaint must be both not false and made in good faith.

[189] Dirckze v Holmesglen Institute [2016] VSC 385 (Dirckze) at [77].

[193] Kurtulus Statement, [17] and [19]; Refer also Allie at [51], the failure of a person to identify any protected attribute was cited by the Tribunal in finding that a complaint was not a complaint within the meaning of s 104(1)(g) of the EO Act.

[195] Thuraisingam Statement, [19]-[23], [29]-[33] and Exhibit 1.

[197] De Pasquale Statement, CP-6 and Kurtulus Statement, TG-1.

[200] SPM v Flemington and Kensington Bowling Club (Human Rights) [2019] VCAT 68 (SPM) at [69], quoting G v Victoria Legal Aid 565 (2000) EOC 93-060.

[201] This complaint appears at CP-5 to the De Pasquale Statement and at AM-18 of the Masri Statement.

[203] Kurtulus Statement, [17] and [19].

[204] Allie at [51]. It is noted that Mr De Pasquale gave evidence that on one occasion Mr Masri said he was being targeted because of his religion (De Pasquale Statement, [27]) but this was denied by Mr Masri during cross-examination (Tr 64:3-4) and is not an event which forms the basis of any Victimisation Claim.

[205] The Further Particulars only allege that Mr Masri was victimised. To the extent that it is alleged that both Applicants were victimised, Costco responds to this allegation as well by the same submissions.

[207] SPM at [69], quoting G v Victoria Legal Aid 565 (2000) EOC 93-060.

[208] Costco notes that the Further Particulars only allege that Mr Masri was victimised. To the extent that it is alleged that both Applicants were victimised, Costco responds to this allegation as well by the same submissions.

[209] SPM at [69], quoting G v Victoria Legal Aid 565 (2000) EOC 93-060.

[210] SPM at [67]. The Tribunal noted that 'awareness does not mean that this issue was a "substantial reason" for the decision'.

[211] De Pasquale Statement, [54]-[55], [64]-[65], [69] and [77] and Kurtulus Statement, [56].

[212] Tr 192:14-19, 216:20-27, 217:28-30, 256:15-18.

[213] Tr 231:1-9, 238:26-31, 239:1-31 and 240:1-2.

[217] De Pasquale Statement, [40]-[42] and CP-4.

[219] (Anti-Discrimination) [2012] VCAT 678 (25 May 2012),

[221] De Pasquale Statement, [42] and [66]; Thuraisingam Statement, [26], [47], [61] and [62]; and Kurtulus Statement, [51]-[52].

[223] SPM at [69], quoting G v Victoria Legal Aid 565 (2000) EOC 93-060.

[229] Tr 205:23-25, 205:30-13 and 206:1-14.

[232] Kurtulus Statement, [61], TG-3.

[233] Thuraisingam Statement, [53]-[55] and Tr 241:9-12; and De Pasquale Statement, [33].

[234] Singh Statement, [12]; Thuraisingam Statement, [44]; Kurtulus Statement, [35]; and Tr 221:22-30 and 233:15-29. De Pasquale Statement, [32].

[235] Thuraisingam Statement, [9]-[10]; Tr 218:25-30 and 282:11-14; and Kurtulus Statement, [24] regarding his steps to upload Mr Masri's complaint to Elumina which Mr Kurtulus did without being aware of the Customer Service Complaint (see Tr 224:24-27).

[237] De Pasquale Statement, [37]-[39] and Thuraisingam Statement, [19]-[25].

[238] Thuraisingam Statement, [27]-[34] and De Pasquale Statement, [43]-[45]; Tr 275:22-31 and 276:1-5.

[239] SPM at [69], quoting G v Victoria Legal Aid 565 (2000) EOC 93-060.