Nederhof v Lawson Bowling Club Ltd

ex tempore reasons for decision 1DEPUTY PRESIDENT: This is an application by Mr Adrian Nederhof for leave for a complaint of disability discrimination in the provision of goods and services to go ahead. 2The complaint was declined by the President of the Anti-Discrimination Board and in those circumstances leave is required under s 96 of the Anti-Discrimination Act 1977 (NSW). 3The Supreme Court in the case of Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143, has set out principles on which leave should be granted. In that case, Acting Justice Schmidt said: "Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which include precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates." 4When deciding whether to grant leave the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the Anti-Discrimination Act including that the complaint lacks substance or that the nature of the conduct is such that further action is not required: Jones v Ekermawi [2009] NSWCCA 388 at [60]. 5The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. While it is not the Tribunal's role when determining a leave application to decide whether the complaint has been substantiated, the merits of the complaint are relevant. 6The factual basis of this complaint is set out in a letter to the Anti-Discrimination Board from the applicant's partner on 30 April 2013. The complaint relates to a decision by a bartender at the Lawson Bowling Club to ask the applicant to leave the bowling club. 7The reason for the request was said to be because of a belief that the applicant was intoxicated. The events occurred on Anzac Day, 25 April 2013. 8The details of the complaint are all provided by the applicant's partner, not by the applicant himself. 9It said that the applicant was participating in events relating to Anzac Day and arrived at the Lawson Bowling Club at approximately 5.20pm. Mr Nederhof's partner said that she went to the bar to purchase two drinks. Mr Nederhof's partner also gave evidence about the applicant's drinking that day. In particular she said that the services club where they had been drinking beforehand issued eight drink tickets to each member on Anzac Day adding that, "These can be exchanged for a schooner of beer, a soft drink or a glass of house wine and are only redeemable after midday." 10His partner's evidence was that Adrian Nederhof consumed the equivalent of eight schooners of beer between midday and 5.10pm. She said that this calculates as an overall average of the equivalent of approximately one schooner per hour from 6.45am to 5.10pm. That calculation is based on other evidence that the applicant also consumed some alcohol much earlier in the day. 11It is likely that a Tribunal hearing this case would find on the basis of that evidence that Mr Nederhof was at least somewhat affected by alcohol when he came to the club. 12The applicant's partner gives evidence about Mr Nederhof's actions: "He explained that he had seen another acquaintance in the club and had walked across to speak with him. After that he began to walk back to our table and had observed that a chair had been pushed back from a table. He thought it would be safer to move it before he or another club patron tripped on it. He used his hands to shift it against the wall. He did not shove or kick the chair or behave in a manner that could be described as aggressive. Having done this, he proceeded only a few steps before being confronted by the security guard and was requested to leave the premises. He also noted that the area around the misplaced chair was not as well lit as other areas in the club which was another reason he felt it would be prudent and responsible to move the chair out of the way." 13A statement from Lloyd Ward is at p 42 of the President's report. Mr Ward who is a bartender at the club says: "At approximately 5.30pm our security guard, Mr Patrick Cochrane, pointed out a male patron to me and suggested this person should not be served any more. I observed the gentleman's movements for about five minutes which involved him walking into a chair and replacing the chair. Upon taking my break at 5.40 pm I walked up to the gentleman and told him we thought he had had enough to drink. After talking with him he looked at me and said, 'No. No. The security guard told me he would look after it.' Security guard then removed the gentleman from the club." 14The Anti-Discrimination Board declined the complaint on various grounds. The reasons for the decision are set out at p 71 of the President's Report. "The reasons for my decision are the information does not show that the staff members who requested the complainant to leave had any knowledge of the complainant's condition and could thus have accommodated it. There is no information to show how the respondent should have accommodated the complainant's disability without receiving any information from the complainant relating to his disability." 15I interpolate to explain that the second ground on which the Anti-Discrimination Board declined the complaint is no longer pressed by the applicant. 16The grounds go on to state; "There is no information to show that the respondent refused to provide the complainant a service or provided him with a service on different terms when compared to services provided to people without the complainant's disabilities. On the basis of the information provided to the Board by the complainant and the respondent I consider that the allegation of disability discrimination in services is lacking in substance for the above reasons." 17When assessing the merits of the complaint the legislative provisions must be examined. The allegation is that the club, through its employee Mr Ward, breached s 49M of the Anti-Discrimination Act. That provision states that; "It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or, (b) in the terms on which he or she provides the person with those goods or services." 18There is an exception which does not apply to the facts of this case. 19In conjunction with s 49M the Tribunal must look at the definition of discrimination in s 49B. That provision has two elements, differential treatment and causation. 20Differential treatment is that the perpetrator must have treated the person with the disability less favourably than in the same or similar circumstances he or she would have treated a person without that disability. The causation element requires that at least one of the reasons for that treatment must be the person's disability. 21In order to make out the complaint at a hearing the applicant would have to prove: (1)that he was refused a service or provided a service on less favourable terms; (2)that that treatment comprised differential treatment; (3)that one of the reasons for that treatment was his disability; and (4)that the club is liable vicariously for the actions of its employees. 22Firstly, there is no dispute that the club was providing a service to the applicant or that a service was refused in the sense that the applicant was not permitted to remain at the club to enjoy the services that were being offered. 23The second element is that Mr Ward treated the applicant less favourably than he would have treated a person without Mr Nederhof's disability. The nature of the disability was set out in the complaint and I quote: "Mr Adrian Nederhof has considerable physical damage to one leg and one arm as a result of an accident 35 years ago. He sustained numerous breaks to his leg and arm resulting in the damaged leg being marginally shorter than the other. The bones in his leg and arm were surgically repaired by bolts and steel plates resulting in partial loss of movement in both the leg and the arm. Therefore, he often has the appearance of awkwardness and a discernible limp, particularly when he has engaged in prolonged physical activity." 24The definition of disability in s 4 includes a "disability" and I quote: "The malfunction, malformation or disfigurement of a part of a person's body." I am confident that a tribunal would be satisfied that the applicant has a disability within the meaning of the term in the Anti-Discrimination Act. 25But for Mr Ward to have treated the applicant less favourably on the ground of that disability it is logical that he must have known about the disability. Whilst Mr Ghobrial, representing the applicant, attempted to point to material in the President's Report which would support an inference that Mr Ward knew of the disability or should have known of it, I am not satisfied that a Tribunal hearing this case would be persuaded of that fact. 26Consequently it is unlikely that the applicant would be able to make out the differential treatment aspect of the definition of discrimination. 27Turning now to the question of causation. One of the grounds for the refusal must be the applicant's disability. Obviously in circumstances where Mr Ward did not know of that disability it would be difficult for the applicant to make out this element of the case. 28Looking at the facts as asserted it would be unlikely that the Tribunal would draw an inference that disability was one of the reasons for the conduct. Rather, it is likely that a Tribunal would find that the reason Mr Ward asked the applicant to leave was his suspicion that he was intoxicated and that, in line with the responsible service of alcohol requirements, he should no longer remain at the premises. 29There is no issue that the club would be vicariously liable for the conduct of Mr Ward as Mr Ward is its employee. 30In all the circumstances leave is refused because it is highly unlikely if this complaint were to proceed to a hearing that the complaint would be substantiated.