1. Under section 125(a) of the Equal Opportunity Act 2010 (Vic) (EO Act) and section 124(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the tribunal finds and declares that the respondent contravened section 44 of the EO Act by refusing to provide services to each applicant in circumstances where the respondent cancelled the first applicant's room hire booking for 1 October 2011 and that it did so because of the race of prospective patrons, which included each applicant.

1. If the applicants seek costs in this proceeding, they are to make an application in writing to the Tribunal, together with any supporting material, and serve it on the respondent, by 29 October 2015.

1. The respondent may file and serve any submissions in reply to such a costs application, by 19 November 2015.

1. Any costs application is to be listed before me after 30 November 2015. Allow half a day.

Ms K Grinberg of Counsel, instructed by Mr M Wilson, Solicitor, Flemington & Kensington Community Legal Centre

Mr T Sowden of Counsel, instructed by Mr G Prince, Solicitor

1. In September 2011, Mr Obudho, the first applicant, operated a business called IDJS Entertainment (IDJS).[2] Ms Kylie Steponavicius, Mr Obudho's wife and business partner, contacted Patty Malones Bar Pty Ltd (Patty Malones), the owner of Inflation nightclub, to enquire about booking a room for an event.
2. An agreement was made for IDJS to hire the basement at Inflation for the night of Saturday, 1 October 2011.
3. Mr Obudho and the second, fourth and fifth applicants all planned to attend the event that night. Each applicant is of the African race.
4. On around 26 September 2011, five days before the booked event, Ms Steponavicius and Mr Bill Gianoulas, a Patty Malones' staff member, had a telephone which led to the cancellation of the booking.
5. The applicants say that the booking was cancelled by Patty Malones because it had become aware that the majority of patrons who would attend were African. They say that Patty Malones engaged in discrimination on the basis of race contrary to the Equal Opportunity Act 2010 (Vic) (EO Act).
6. Patty Malones says that the booking was not cancelled because of the race of the patrons. Rather it says that, when it became aware of the nature of the event and related security concerns, it asked IDJS to contribute to the cost of having additional security guards working on the night and IDJS refused. It further says that, because it was not provided with complete information about the nature of the planned event, Patty Malones was not able to make its usual arrangements for such an event, including undertaking an appropriate risk assessment and booking extra security. Those arrangements were said to be necessary in order for Patty Malones to protect the amenity of the area and its liquor licence. Further, Patty Malones says that it was unaware of the existence of Mr Obudho and so could not be said to have discriminated against him. It denies that it provided or proposed to provide services to the other applicants as it was unaware they intended to attend the event.
7. Mr Obudho seeks compensation for business losses arising from the cancellation of the event and for non-economic loss. He and the other applicants seek a declaration that Patty Malones breached the EO Act prohibition on discrimination in the provision of services contained in section 44.

1. At first glance, this case appears to turn on a discrete question: what was said by Ms Steponavicius and Mr Gianoulas during the course of a conversation held on 26 September 2011 and, importantly, did Mr Gianoulas say that the booking would be cancelled because the majority of patrons would be African?
2. Patty Malones denies that statement was made. It says that there were other, non-discriminatory, reasons for the event not proceeding which relate to pre-booking disclosure by IDJS, past violence at IDJS events and unresolved risk assessment and security concerns. Consistent with that position, a large amount of evidence was produced and the factual disputes were many. The result was a complex hearing and these lengthy reasons for decision. In addition to the factual disputes, legal issues as to the applicants' capacity to bring the claims required have determination.
3. The issues I have considered and my decision on each may be summarised as follows:
   • Has Mr Obudho proven his claim for direct discrimination in his capacity as owner of IDJS and if so has he established his claims for economic and non-economic loss arising from business related losses and damage?

• Have the applicants proven a claim of direct discrimination on the basis that Patty Malones imposed certain requirements and conditions in respect of the planned event?

• Have the applicants, as prospective patrons unknown to Patty Malones, established that they are entitled to bring a claim of discrimination on the basis that they were refused services because of their race?

• Have the applicants proven that Patty Malones cancelled the booking and so refused to provide services to the applicants and that a substantial reason for doing so was their race - that is, have they proven that Mr Gianoulas said, in the conversation on 26 September 2011, that the event could not proceed because the majority of patrons would be African?

1. I have made a declaration that Patty Malones contravened section 44 of the EO Act. As no compensation or other remedy was sought in respect of the claim arising from the applicants planned attendance at the event, the declaration is the sole order made in respect of that claim. The other claims have been dismissed.
2. In these reasons, I first set out some procedural matters and then deal with those claims I have dismissed. I then turn to the circumstances which preceded the crucial conversation held on 26 September 2011 and which are relied on by Patty Malones to establish an alternative reason for the event not going ahead. I then turn to the content of the conversation at the heart of this case.
3. I have taken that approach because it is consistent with the chronology of events and because the evidence about what was said and done before the 26 September 2011 conversation has been relevant to my assessment of the reliability of the evidence given by the witnesses and the alternative reasons for the cancellation proposed by Patty Malones.
4. I have rejected the contention that Ms Steponavicius, acting for IDJS, failed to appropriately disclose information about the event and IDJS' past events or that she otherwise misled Patty Malones' representatives about the event. While satisfied that there was a misunderstanding about the nature of the event until around 24 September 2011, I do not consider Ms Steponavicius was its cause. Although one of the consequences of that misunderstanding was that arguably the incorrect form of agreement was entered into for the booking, I have found that the differences in the form of agreement are not material to this case.
5. Patty Malones contends that its staff was informed about an incident of very serious violence at an IDJS event held around the corner from Inflation soon before 24 September 2011. Patty Malones' evidence was that the violence led to Inflation and other nightclubs being told by police to lock their patrons inside while police dealt with a 'street brawl'. Patty Malones says information about that incident was the reason why it had concerns about going ahead with the booking and considered it necessary to consult with police, assess its security arrangements and require IDJS to contribute funds to meet the additional security costs. I have found there is no evidence before me to support a finding that there was a street brawl of the kind described at the relevant time or that it arose from an IDJS event.
6. In any event, I have found that IDJS was not asked to contribute to additional security costs as claimed. I have further found that, even if IDJS had been asked to make such a contribution, it would have agreed to do so in order to have the planned event go ahead.
7. On the question of security and risk related concerns, evidence was given about Patty Malones' approach to events promoted primarily to one nationality or cultural group (known as a 'culturally specific event' or a 'culturally specific party') and the different form of agreement entered into for those promoter events. Those matters have not been material to the findings I have made.
8. Accordingly, I have rejected the contention that the reason the planned event was cancelled was because of a refusal by IDJS to address Patty Malone's risk related concerns, including by contributing more to security costs. As a consequence, I have rejected the contention that, in its dealings with IDJS, Patty Malones simply applied its standard approach to an event of this kind and that it was IDJS' unwillingness to contribute to additional costs which was the reason for the event being cancelled.
9. In making findings about what was said in the 26 September 2011 conversation I have considered all of the evidence presented. That did not include evidence from Mr Gianoulas as he was not called. The available evidence included that of Ms Steponavicius and Mr Obudho for the applicants and Ms Martha Tsamis (sole director of Patty Malones) and Mr Patrick Dromi (general manager of Inflation) for the respondents. The evidence also included an email which was drafted by Ms Steponavicius and Mr Obudho immediately after the 26 September 2011 conversation and sent to Patty Malones the next day. The content of the email is consistent with Ms Steponavicius and Mr Obudho's account of the content of the conversation.
10. Ultimately, I have preferred the evidence of Ms Steponavicius and Mr Obudho as to the content of the conversation to that given by Patty Malones' representatives.
11. I have taken into account my findings about the surrounding circumstances, the presentation of the witnesses and what I regard as very substantial gaps in the content of the witness statements filed for Patty Malones' witnesses as compared to their oral evidence. I have concluded those gaps cannot be explained as errors or inadvertent omissions by the solicitor who drafted the witness statements.
12. While invited to do so, I have made no finding of generalised racism on the part of Patty Malones as a business or Ms Tsamis personally.
13. My reasons for these conclusions follow.

1. It is convenient to set out here some of the terminology which is used below. The name of the planned event was 'Africa Fest'. Inflation nightclub is located on King Street, Melbourne between Flinders Lane and Collins Street. It has several different bars and areas available for hire. The area to be used by IDJS is called the 'basement' (also known as the 'Geddes Lounge'). That space is located at the rear of the building with access via Geddes Lane, off Flinders Lane near the corner of King Street. Patty Malones also owns 'Chasers' nightclub in Chapel Street, South Yarra. IDJS had held events at three other city bars: the 'High Fidelity Bar' in Bourke Street, 'Eleven A' in Highlander Lane, (now known as 'Highlander') and 'CBD Nightclub' in McKillop Street, near Bourke Street. Highlander Lane is located off Flinders Lane not far from the corner of Flinders Lane and King Street.

1. On 7 November 2014, I dismissed an application by Patty Malones for the proceeding to be summarily dismissed or struck out under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Patty Malones made that application because it contended that it was required to take steps to arrange additional security and liaise with Victoria Police about the event to ensure that it complied with its legal obligations arising from its liquor licence granted under the Liquor Control Reform Act 1998 (Vic) (LCR Act). Patty Malones said that, even if it was found to have engaged in prohibited discrimination on the basis of race contrary to the EO Act, the decision to cancel the booking was authorised by the LCR Act and so the conduct would not be unlawful. I dismissed that application and published reasons for my decision.[3] As a consequence, that aspect of Patty Malones' defence could not be considered further.
2. At the preliminary hearing on 23 October 2014, I heard evidence from Ms Tsamis, Inspector Andrew Falconer, at the relevant time, officer in charge of the Melbourne Divisional Licensing Unit (DLU) and Sergeant Charles Ormiston, who gave evidence regarding licensing related practices in the City of Stonnington. Their evidence in part related to a publication called Venue Compliance Essentials (VCE) and the topic of 'culturally specific events'. I will mention some of that evidence later in these reasons.
3. I will now discuss the legislative framework under which this application has been made and decided.

1. The EO Act is protective legislation that seeks to ensure that persons with named attributes are not discriminated against because of those attributes in relation to specified activities or classes of activities. One of those protected attributes is race.[4] There is no dispute here that each applicant is of the African race and that is the attribute relied on for each of their claims.
2. The applicants all say that Patty Malones engaged in direct discrimination, which is defined in section 8 of the EO Act as follows:

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

1. An employer advises an employee that she will not be trained to work on new machinery because she is too old to learn new skills. The employer has discriminated against the employee by denying her training in her employment on the basis of her age.
2. A real estate agent refuses an African man's application for a lease. The real estate agent tells the man that the landlord would prefer an Australian tenant. The real estate agent has discriminated against the man by denying him accommodation on the basis of his race.

(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. The applicants' claim of indirect discrimination was withdrawn at the hearing.
2. Section 10 of the EO Act says that, in determining whether or not a person discriminates, the person's motive is irrelevant.
3. The term 'unfavourable treatment' is not defined in the EO Act but it is understood to bear its ordinary meaning which includes adverse treatment and humiliation.[5] The current definition of direct discrimination contained in section 8 does not require proof that the applicant's treatment was unfavourable as compared to that of another person without the protected attribute. However, a comparison of that kind might be a relevant factor when considering whether there has been unfavourable treatment.[6]
4. An applicant is required to show a causal link between the unfavourable treatment and the attribute. It is not necessary for the attribute to be the sole reason for the unfavourable treatment, but it must be a substantial reason.[7] A substantial reason, amongst a number of reasons for conduct, is one which actuated the mind of the relevant decision maker.[8]
5. The class of activity relied on here is the provision of services. Section 44 of the EO Act says:

(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 or services are provided for payment.

1. Section 125 of the EO Act says that, after hearing the evidence and representations of the parties, the tribunal may find that a person has or has not contravened a provision. If it finds there has been a contravention, the tribunal may make a range of orders including for a person to pay to the applicant an amount the tribunal thinks fit to compensate for loss, damage or injury suffered in consequence of a contravention. The tribunal may also make an order that the person do anything with a view to redressing any loss, damage or injury suffered as a result of the contravention.

1. As summarised above, the applicants claim that Patty Malones discriminated against each of them on the basis of their race in the area of the provision of services. The applicants say that, during the course of a telephone conversation on 26 September 2011, Mr Gianoulas told Ms Steponavicius that Patty Malones would not allow the event to go ahead 'due to the fact that the majority of your patrons will be African'. Patty Malones denies the claim those words were said.
2. The amended particulars of claim state that as a result of this conduct, Patty Malones breached section 44 of the EO Act by engaging in direct discrimination by treating the applicants unfavourably because of their race when it:
   • Cancelled the event and refused to provide services to the applicants in accordance with the agreement;
   • Further and in the alternative, when it told Ms Steponavicius that the event could only go ahead if IDJS contributed more to the security costs and that there would be a need to speak to police about the event; and
   • Further and in the alternative, when it placed restrictions and conditions on the agreement as a result of its cultural policy and on the basis that the policy was not complied with.
3. On the final hearing day, Ms Grinberg, counsel for the applicants, stated that they sought the following:
   • Declarations that Patty Malones engaged in prohibited discrimination in respect of each applicant;
   • Compensation for economic loss in the form of Mr Obudho's lost profits in the sum of $8,000; and
   • Compensation for non-economic loss for Mr Obudho in the sum of $7,000. That claim was said to arise because Mr Obudho's public dealings and business were affected by Patty Malones' conduct, he suffered stress and humiliation when he had to explain to his customers what had occurred and because he suffered personal upset and humiliation as someone with the attribute.
4. Although the applicants' closing submissions stated that all of the applicants had suffered humiliation, embarrassment, stress and anxiety as a result of the cancellation of the event, no order for compensation or any other remedy was sought for the applicants as prospective patrons.

Mr Obudho's claim of direct discrimination in connection with IDJS

1. Mr Obudho's case was argued in part on the basis that, when Patty Malones cancelled the event, it discriminated against him as the owner of IDJS and so compensation was sought in respect of profits IDJS expected to make from the event.
2. Mr Obudho's closing written submissions say:

In return for payment and a minimum bar spend, Inflation agreed to provide services in the form of making a section of their venue available for the event, providing venue staff, DJ equipment, and the provision of a float and till for use by the IDJS attendant at the door.[9]

1. Leaving to one side Mr Obudho's planned attendance at the event, it is apparent that part of Mr Obudho's claim is that Patty Malones discriminated against him as owner of IDJS when it refused to provide services to him by giving effect to the agreement entered into for the 1 October 2011 event. That is the basis on which the lost profits are claimed. That claim turns on the contention that, when Patty Malones cancelled the event because the majority of its patrons would be African, it engaged in racial discrimination.
2. As set out above, in order to prove direct discrimination, it is necessary for Mr Obudho to demonstrate that Patty Malones discriminated against him as owner of the business because of his race. His claim for non-economic loss also depends on those matters being proven.
3. On 7 July 2015, after all of the evidence had been heard, the parties made oral submissions on the factual and legal matters arising from the case. After that hearing, I arranged for the registrar to write to the parties inviting further written submissions on the following matter:

The primary applicant in the proceeding is Mr Obudho and he makes a claim of direct discrimination on the basis of race. As the Tribunal understands it, there is no dispute between the parties that the respondent did not know that Mr Obudho owned the business name IDJS and did not know that he is African until around February 2012.

The Tribunal invites submissions on how section 8 of the [EO Act] applies in these circumstances.

1. Further written submissions were received from the parties on 11 and 13 August 2015.

1. In the further written submission provided in response to the tribunal's 13 July 2015 letter, Mr Obudho contended that it was immaterial whether Patty Malones knew the identities of the individual applicants, referring to the decision of her Honour Judge Hampel in Cobaw Community Health Services v Christian Youth Camps Ltd.[10] The submissions say:

It is sufficient that Mr Obudho intended to attend the event, and that he shares the relevant attribute. It is not disputed that Mr Obudho possesses the relevant attribute. It is clear that Mr Obudho was planning to attend the event. Among other things, it is advertised on the poster for the event that DJ Kwenda was playing at the event, this is Mr Obudho's name and Mr Obudho confirmed this referred to him.

Mr Obudho was refused services when Inflation cancelled the event. There was evidence presented to the Tribunal of Mr Obudho's longstanding personal involvement in attending and organising events attended by the African community in Melbourne and interstate. Mr Obudho had both a personal and financial interest in the event that was cancelled. Because Mr Obudho was the owner of IDJS and also stood to gain financially from the event, his financial loss is more than the loss of the other applicants. However this fact does not impose any additional burden on Mr Obudho in establishing his claim, nor does it disentitle him from claiming the loss that he suffered as a result of the discrimination.[11]

Patty Malones' defence to the claim and submissions

1. In its amended particulars of defence, Patty Malones said that 'at all times, it was unaware of the applicant's existence or that he might have had an attribute for the purposes of the [EO Act].'[12]
2. That position arises from the following evidence:
   • All discussions about the hire of space at Patty Malones were conducted by telephone and email by Ms Steponavicius acting on behalf of IDJS;
   • During the telephone conversation between Ms Steponavicius and Mr Gianoulas, Ms Steponavicius had the telephone on speaker and Mr Obudho was listening but at no time spoke; and
   • Patty Malones first became aware that Mr Obudho owned IDJS in around February 2014, after this proceeding had been commenced.
3. The above evidence was not disputed by Mr Obudho.
4. In its submissions in response to the tribunal's 13 July 2015 letter, Patty Malones referred to case law to content that the conduct in issue must be aimed at or towards the person complaining of discrimination and that the discrimination must be carried out with knowledge of the applicant's protected attribute.[13] Patty Malones further contends that, if Mr Obudho's position was correct, there would be no need for the separate statutory claim of indirect discrimination.

1. The critical problem with this aspect of Mr Obudho's claim is the way in which the word 'because' is to be read in section 8 of the EO Act. It is apparent from the plain words of section 8 that direct discrimination will be proven where there is unfavourable treatment because of the applicant's attribute. While it is not necessary for the attribute to be the sole reason for the unfavourable conduct, it must be a substantial one. In order to demonstrate a substantial reason, it must be proven that there is a link between the conduct in issue and the attribute.
2. In this case the applicants say that the conduct was the cancellation of the planned event (and/or the imposition of various requirements in order for the event to proceed) because Patty Malones knew that the majority of patrons were to be African. It does not say that the event was cancelled because of Mr Obudho's race or his planned attendance as a patron or DJ.
3. Assuming for the moment that it can be proven that Patty Malones cancelled the event because of the race of the patrons, that means that it was the race of the patrons which actuated the mind of Patty Malones not the race of the owner of the business running the event.
4. The EO Act provides protection for people who are discriminated against on the basis of their personal association with people who have an attribute - see section 6(q) of the EO Act. That attribute was not pleaded in either the original or amended particulars of claim nor was it the subject of an application for further amendment. Given that attribute was not pleaded, it is not open to me to read the claim as if it had been included or is part of the claimed attribute of race.
5. In circumstances where Patty Malones did not know Mr Obudho owned IDJS or what his race was, Mr Obudho's claim of direct discrimination in his capacity as owner of IDJS cannot succeed. That aspect of his claim and the claimed business loss and non-economic loss associated with Mr Obudho's ownership of IDJS and the cancellation of the booking will be dismissed.

The applicants' claim of direct discrimination arising from the imposition of requirements and conditions

1. Patty Malones said that, when it became aware of the nature of the planned event it told IDJS that it would be necessary for additional security to be arranged at IDJS' cost and for there to be discussions with Victoria Police about whether it would 'approve' the event.[14]
2. Mr Obudho says that these alleged requirements or conditions amount to further proposed unfavourable treatment on the basis of his race. For the same reasons as set out above, this claim cannot proceed.
3. The amended particulars of claim allege that these requirements or conditions were proposed unfavourable treatment of all applicants.
4. The requirements or conditions were to be imposed on IDJS: it would have been for IDJS to agree to contribute more funds for security and for IDJS to provide information about the event to the police. There was no suggestion that an increased contribution to security would have led to an increase in the entry price charged to the applicants or to any other change associated with their planned attendance.
5. There was no proposed treatment of the applicants in their capacity as prospective patrons arising from these alleged requirements or conditions and so there was no proposed unfavourable treatment of them.
6. Accordingly, these claims will be dismissed. That leaves the claim of direct discrimination in respect of the applicants as prospective patrons.

The applicants' claim of direct discrimination as prospective patrons

1. As set out above, each applicant says that they intended to attend the event on 1 October 2011 and were discriminated against when it was cancelled.
2. Patty Malones says that it did not have personal knowledge of any of the patrons and so it cannot be said that they refused to provide services to any of them.
3. This issue led to submissions on how Hampel J's decision in Cobaw applies to this case.

1. The decision in Cobaw arose out of the following circumstances.
2. Ms Sue Hackney, an employee of Cobaw Community Health Services (Cobaw) telephoned the owner of holiday accommodation on Phillip Island, Christian Youth Camps Ltd (CYC) in 2007. Cobaw wanted to book the accommodation so as to hold a camp for same sex attracted young people as part of a programme it ran to address the high rate of suicide for young people in that group. Her Honour preferred the evidence of Ms Hackney to that of Mr Rowe of CYC as to the conversation which was at the heart of the case.[15] In summary, Ms Hackney told Mr Rowe that:
   • Cobaw wanted to book the accommodation and that they would bringing a group of young people aged from 16 years through to their early twenties; and
   • Their project was a suicide prevention initiative that targeted same sex attracted young people. Cobaw aimed to raise awareness about the needs of these young people, the nature and effect of homophobia in rural communities and the effect of discrimination on young people.
3. Ms Hackney's evidence was that Mr Rowe said in response that CYC was a Christian organisation and that its board needed to be aware of the aims and beliefs of groups that use their facilities. He said he was not sure about how the board would feel about a group such as theirs using the facilities. There was some further discussion and then Mr Rowe said the board would have some difficulties taking a group such as theirs and that they would be better to look elsewhere. He added that CYC would not be able to take the group because it was a Christian organisation that supported young people.
4. Cobaw brought the proceeding in a representative capacity under section 104(1B) of the then applicable Equal Opportunity Act 1995 (Vic). There were arguments about its capacity to do so which are not relevant as the applicants here are all individually named.
5. Her Honour found that Ms Hackney was not only acting as agent for Cobaw when she made the telephone enquiry about accommodation, she was also seeking to make a booking on behalf of the proposed attendees, and that group included the ten people named in the proceeding.[16]
6. The decision was appealed to the Court of Appeal but the finding about the provision of services to those people Cobaw represented was not raised or determined by their Honours.

1. Patty Malones said that it had no knowledge of the identities of any of the applicants at the point at which the services were refused. It further said that it could not have known that each of them was possessed of the protected attribute. Patty Malones contends that the applicants are part of an indeterminate group and queries whether a person can discriminate against an indeterminate group.
2. In its closing written submissions, Patty Malones noted that, although CYC had raised this matter initially in the appeal, it was abandoned and so it was not able to be raised in the final hearing of the appeal. The submissions commented that it is difficult to know what the court would have made of the issue.
3. Patty Malones suggested that the claim inappropriately treats sections 8 and 44 as 'opt-in' arrangements whereby any party, known or not known to a respondent, may bring proceedings under the EO Act provided they intended to attend a function cancelled allegedly on the grounds of race.[17]
4. Patty Malones said that section 8 requires proof that the respondent treated or proposed to treat the applicants unfavourably. It said that it dealt only with Ms Steponavicius who is not a party to the proceedings and does not have the protected attribute. Patty Malones says that there was no treatment of the applicants as prospective patrons at all.

1. The applicants contended that what the Court of Appeal may have made in respect of the question whether there can be discrimination against an indeterminate group is irrelevant to this proceeding. First, because that was not a matter before the court and second, because that was dealt with by Hampel J in her decision. I agree with those contentions.
2. The applicants submitted that her Honour applied the High Court of Australia's decision in Koowarta v Bjelke-Petersen,[18] and that decision is binding on this tribunal.[19] The applicants said, in any event, they are not part of an indeterminate group: they all share the common factors of possession of the relevant attribute and an intention to attend Africa Fest at Inflation on 1 October 2011. They said that Patty Malones' reading of sections 8 and 44 summarised above would be inconsistent with the objectives of the EO Act and would not be consistent with section 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter).
3. Noting that the word 'treat' is defined to include to 'deal with', the applicants contend that the only reason that Patty Malones did not have dealings with them was because it refused to provide them services. They said that such a refusal to provide services falls within section 44.[20]

1. As will become apparent from the discussion of the evidence below, there is no question that on 26 September 2011, Patty Malones was aware that the proposed event booked for 1 October 2011 was to be an African-themed night and that flyers about the night had been distributed. While it is correct that Patty Malones did not know the individual applicants intended to attend the night and had the protected attribute, on its case, it was aware that there would be a number of people of the African race in attendance - that was why it sought to apply its culturally specific events policy.
2. I see no reason to take a different approach here to that taken in Cobaw. In Cobaw the applicant organisation wished to hire a venue to provide accommodation and a programme to unidentified young people who were same sex attracted. CYC said that it was not an appropriate venue for such a group because of the protected attribute and CYC's beliefs and religious foundations. In this case, a booking had been made to hire part of the Inflation nightclub to provide an African-themed music night. At the time the decision was made to cancel the night, Patty Malones was aware that African people would be likely to attend. While it was not aware of the identities of individual prospective patrons, Patty Malones knew of a group with a shared attribute which, due to its decisions about the event, would not be able to attend.
3. I have found below (paragraphs 94 to 99) that the named applicants all intended to attend the event at Inflation on 1 October 2011 and so I am satisfied that there was a refusal to provide services to each of them. Whether that amounts to discrimination contrary to section 44 of the EO Act is a separate question.

1. The applicants accept that they have the burden of proving on the balance of probabilities 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. Mr Sowden for Patty Malones said that the standard of proof ought to be in accordance with Briginshaw v Briginshaw.[21] Mr Sowden also referred me to the decision of Fullagar J in Department of Health v Arumugam.[22] He said Fullagar J's decision contains the test for establishing race discrimination including that a motive of racism ought not to be lightly inferred and that, where there is a more probable and innocent explanation for the conduct, an inference that there has been discrimination on the basis of race cannot be made.
3. Ms Grinberg referred me to the decision of Justice Smith in State of Victoria v McKenna where his Honour warned against reading too much into Fullagar J's decision.[23] She said that it is not necessary for the applicants to establish a motive of racism in order to show that there was race discrimination. Section 10 of the EO Act makes that plain. In response, Mr Sowden contended that the question is one of intention or belief rather than motive.
4. On the question of the application of Arumugam, I note that the tribunal has previously relied on that decision for the proposition that the tribunal must be satisfied that there was no equally or more probable innocent explanation of the conduct, rather than treating it as establishing a separate test for allegations of race discrimination. [24] In my view there would be no basis to suggest a different test should be applied to allegations of prohibited race discrimination as compared to prohibited discrimination on the basis of one of the other protected attributes: the EO Act's objective is to eliminate, to the greatest possible extent, all forms of discrimination on the basis of all and any of the protected attributes.
5. From time to time, the tribunal has referred to Briginshaw in respect of the standard of proof, particularly in sexual harassment cases.[25] Where very serious allegations going to a person's reputation are made, regard has been had to Briginshaw.[26]
6. Ultimately, it is necessary for the applicants to prove their case on the balance of probabilities - that is, a fact is proved if the applicants satisfy the tribunal that it is more probable than not that it occurred and that there is no equally or more probable innocent explanation of the conduct. Regard must be had to the allegations made: the seriousness of the allegations will influence the evidence sufficient to prove those allegations and the inferences the tribunal is entitled to draw. As neither Briginshaw nor Arumugam have established a third test which I am bound to apply, I have applied the test of the balance of probabilities mindful of the seriousness of the allegations made.[27]
7. The issue in this case is whether, on the evidence, the reason given by Mr Gianoulas for the cancellation of the Africa Fest event was the race of the prospective patrons. Given that it is alleged such a bald statement was made, it is not necessary for me to reach a view about what Mr Gianoulas may or may not have believed, what he intended beyond those words or whether he or Patty Malones more generally were motivated by racism. The question is whether it was more probable than not the statement attributed to Mr Gianoulas was made by him.

1. As noted earlier I heard evidence from Ms Tsamis, Inspector Andrew Falconer, and Sergeant Charles Ormiston at the preliminary hearing.
2. At the substantive hearing, I had before me witness statements and heard evidence from each applicant and Ms Steponavicius, the primary witness for the applicants. In addition to assisting her husband and business partner Mr Obudho with IDJS, Ms Steponavicius is a registered nurse who works at a major Melbourne hospital as patient coordinator. She works the night shift and is responsible for managing patient flow at admissions from emergency and intensive care to the wards. She also does the staffing for the three branches of that hospital.[28]
3. The following provided a witness statement and gave oral evidence for Patty Malones:
   • Ms Tsamis;
   • Mr Dromi - general manager of Inflation for the last 22 years;
   • Ms Jodie Szoeke - function and events co-ordinator for Inflation;
   • Mr Nick Naumovski - then part-time bar manager at Inflation; and
   • Mr Martin De Bono - independent promoter who promoted a Saturday night event called 'Vegas' at Inflation during the period 2010 to 2012.
4. Patty Malones also summonsed Inspector Paul Ross of Victoria Police to give evidence. In 2011 he was the local area commander for Melbourne West and, in that role, he was the Melbourne West licensing inspector.
5. Mr Gianoulas did not give evidence. He had left the employ of Patty Malones, not apparently on good terms, and was not called by it. On 30 March 2015, a summons to attend was issued to him on the application of the applicants. Apparently, he indicated that he did not wish to attend and give evidence. On the application of the applicants, on 15 April 2015 I set aside the summons. Both parties submitted that I should draw no inference against the other in respect of Mr Gianoulas' absence. While I consider it might have been open for me to draw an inference despite the agreed position of the parties, I have not done so as, in these unusual circumstances, it is not apparent against whom the inference ought to be drawn. There was no dispute that Patty Malones was vicariously liable for the actions of staff such as Mr Gianoulas under section 109 of the EO Act.
6. The witnesses called by the parties all provided statements. The usual practice in this list is for witness statements to contain all of the evidence to be given by each witness so that, subject to any corrections or need to be asked about other evidence that has arisen during the hearing, the witness statement is adopted and the witness is then available for cross examination. In this case, the witness statements on each side were not as comprehensive as would be usual. While I gave leave for further evidence in chief to be given by each, as will become apparent, the failure to mention some highly relevant matters which would have been known to the witnesses at the time the witness statements were made, was of concern to me.

The applicants' planned attendance at the event

1. There was no dispute that Mr Obudho planned to attend the event - not only as owner of IDJS but also to work as a DJ.
2. Mr Eddy Munyau made a witness statement in the proceeding and attended to give oral evidence.[29] He intended to attend the event on 1 October 2011 but received a message on about the Monday before saying it had been cancelled. He later saw a message on Facebook that said the event had been cancelled because many of the patrons were expected to be African. He stated he felt upset by the news and that he and his community had been unfairly treated because of their race. He stated he felt frustrated and powerless and was concerned that younger African migrants might feel more isolated as a result of this treatment.
3. Ms Nyakuok Kuirthoi made a witness statement in the proceeding and attended to give oral evidence. Not only had she planned to attend the Africa Fest event, but she had been promoting it to her relatives, friends and contacts. Her oral evidence was that, on 26 September 2011, Mr Obudho notified her the event had been cancelled because the venue was reluctant to host an event where the majority of the patrons would be African.[30]
4. Ms Stellar Wanderi also made a witness statement in the proceeding and attended to give oral evidence.[31] She had arranged for friends from Sydney to fly down to attend the Africa Fest event with her. She had given up her weekend work and penalty rates to attend with her friends. She received a text message on 1 October 2011 advising that the event had been cancelled because the owner of the venue had discovered that the majority of the patrons would be African. She said she was 'traumatised' by the cancellation - partly because her friends had come to Melbourne specially for the event and because the decision to cancel was influenced by racial considerations. She wondered what view the venue owners must have had of her community to make such a decision.
5. Each of these applicants had attended many events run by IDJS in the past, both in Melbourne and interstate.
6. I accept each applicant's evidence that they intended to attend the Africa Fest event at Inflation on 1 October 2011 and that they were told that the event had been cancelled because the venue owner had become aware that most of the patrons would be African.

Evidence relating to matters leading to the 26 September 2011 conversation

1. As foreshadowed above, there was a large amount of context evidence before me about the 26 September 2011 conversation. Patty Malones relied on much of that evidence to establish an alternative reason for cancellation of the event.
2. I will deal with that context evidence before turning to the content of the 26 September 2011 conversation. The matters I consider are:
   • Police visit to Inflation and information about other IDJS events;
   • Disclosure by IDJS to Patty Malones about the event;
   • The form of the agreement and the question of additional security;
   • Concerns about two African-themed events on the same night; and
   • An incident at Chasers nightclub.

Police visit to Inflation and information about other IDJS events

1. Patty Malones' position was that, on Saturday 24 September 2011, police officers attended Inflation and provided information about the planned Africa Fest. The police officers were said to be from the DLU. Mr Dromi gave evidence that knew them to be from the DLU because they identified themselves in that way and he recognised one of the officers.
2. Patty Malones said that the police officers gave its staff a copy of a flyer for Africa Fest and asked whether it was aware that there had been trouble with other events run by IDJS. Patty Malones' position was that Mr Dromi and others were told about an event run by IDJS at Eleven A which had resulted in an 'all-in street brawl spilling out of the venue.' [32] Ms Tsamis' gave evidence that Mr Dromi telephoned her that night and told her about the visit. She stated that Mr Dromi told her that 'at IDJS' previous event hosted at the late night venue Eleven A there was a brawl involving the clientele of IDJS.'[33]
3. At the hearing there was significant dispute about whether police officers did in fact visit Inflation and inform Mr Dromi about the planned event and, if so, whether they were from the DLU. Further, there was a dispute about whether a flyer about the event was supplied by the police officers to Patty Malones at that time. The applicants noted that there was no mention of a flyer in any of Patty Malones' witness statements and, as it was publicly available on the IDJS website, it could have been given to Patty Malones by an employee or associate.
4. At the preliminary hearing, Inspector Falconer was asked about whether officers from his unit had attended Inflation to discuss the upcoming Africa Fest event. He was off duty on 24 September 2011, but he had checked the rosters to see who was working. He explained that there was some industrial activity at the time and so the running sheets and diaries might not have been complete. He checked with the officers working that night and none said that they had attended Inflation. He was comfortable that no one from the DLU had attended Inflation that night but could not rule out officers from another unit attending.
5. Ms Tsamis gave evidence about her efforts to identify the police officers who were said to have attended Inflation on 24 September 2011. She said she telephoned the current inspector from DLU and also spoke to Inspector Peter Ross. They were unable to identify the officers who were said to have attended.[34]
6. It is apparent from other evidence that, until around that night, Patty Malones was not conscious that the planned event was other than a corporate event and that, shortly before the telephone conversation held on 26 September 2011, it became aware that the event was to be African-themed. I am satisfied that, on around 24 September 2011, someone told Patty Malones about the planned event and probably supplied a copy of the flyer. I am satisfied it is more probable than not that police officers, whether from the DLU or elsewhere, visited Inflation and informed Mr Dromi and others about the planned Africa Fest. To find otherwise would require me to conclude that the entirety of the evidence about the visit given by Mr Dromi, Mr Naumovski and Mr De Bono, was fabricated. Had it been the case that some other person told Patty Malones about the event and warned it there had been past problems with events run by IDJS, the person could have been identified and, potentially, given evidence. Evidence of that kind would have been equally consistent with Patty Malones' case.
7. It is not necessary for me to identify the individual police officers who provided information about Africa Fest to Patty Malones and I will proceed on the basis that police officers were the source of at least some of the information about the planned event.
8. As to the information about IDJS' involvement in an event at Eleven A which resulted in a 'massive brawl', Mr Dromi stated that the police said that they had problems with 'these people up the road about a month ago'. Mr Dromi then described a night when police had told them not to let patrons out of Inflation because there was a brawl in the street. He said he was surprised when the police said that the event that had led to that brawl and the lock-in had been held at Eleven A and had been run by IDJS.[35]
9. Mr Naumovski's oral evidence was that the police officers said there had been an incident with the same people as were planning the 1 October 2011 event at another venue and mentioned Eleven A.[36] I asked Mr Naumovski if he recalled an event some years ago which ended up in a brawl in the street. He said at that moment he vaguely recalled it but could not say that was the event the police referred during their visit. His evidence was that, despite the time that had passed, the reference to another incident involving the same people had stuck in his mind.[37]
10. Mr De Bono gave evidence that the police officers approached him, mentioned the event and showed him the flyer. He took them into the office to talk to Mr Dromi. His evidence suggested that he was present for much of the conversation.[38] He gave evidence that enquiries were made about IDJS after the police left. None of that evidence was in his witness statement.
11. Ms Tsamis' evidence in relation to the suggestion of IDJS' involvement in serious violence and a shut down of its event was that she told Mr Dromi to call IDJS on the following Monday and get to the bottom of it. She referred to calming things down and there being 'hysterics from the staff'.[39] Ms Tsamis' evidence was that, had they known that an event had been shut down by police, they would not have taken the booking.[40]
12. At the preliminary hearing, Inspector Falconer was asked whether he was aware of an incident where there was a brawl of this kind in the King Street area sometime before September 2011. He was not aware of such an incident.
13. Ms Tsamis and Mr Dromi were asked whether anyone made direct contact with Eleven A to check about what they had been told. The answer was no.[41]
14. Mr Obudho produced a list of events which had been run by IDJS over the period April 2007 to 1 October 2011 and which had been prepared for the purposes of the proceeding.[42] The list showed the last event run by IDJS at Eleven A/Highlander Bar before 1 October 2011 was on 18 December 2010.
15. There was no persuasive evidence before me that there had been any event held at Eleven A around August or September 2011 which had led to a street brawl and to other venues being told to close their doors and lock-in their patrons.
16. Even if such an incident occurred, I am not satisfied that it has been established that IDJS was involved in an event which preceded the brawl. Although it is possible that the police officers mistakenly linked a violent event with IDJS, there is no sufficient basis on which I could draw that inference without evidence from the relevant officers.
17. In these circumstances, I am not satisfied that police officers told Mr Dromi and others that, around September 2011, IDJS had been involved in an event which led to a street brawl and the lock-in of patrons in other venues in the area.
18. As I understood it, in closing oral submissions, Mr Sowden seemed to suggest that there might have been violence at another IDJS event and that might have been what police were referring to when they visited. Where the amended particulars of defence and Ms Tsamis and Mr Dromi's witness statements were so specific about the location of the event (Eleven A) and its nature (street brawl), I do not consider it open for me to infer that the police officers might have had in mind another incident of violence at another venue.

Disclosure by IDJS to Patty Malones about the event

1. Patty Malones contended that IDJS and Ms Steponavicius failed to disclose the fact that the event they were booking was a 'culturally specific event'.
2. The VCE practice guide contains a definition of 'culturally specific event'. That term is defined to mean any event which is promoted as such but does not exclude other nationalities or at which a large proportion of individuals attending identify with a specific cultural group or at which a large proportion of individuals at the event are from a specific cultural group. A disclaimer at the end of the practice guide says that it is a guide only and does not serve as legal advice. Reference is made to all licensees being required to comply with the law in operating their venues. The VCE recommends that certain information is obtained from a promoter and that discussions are held with the DLU about such nights.
3. One of the standard form agreements used by Patty Malones for bookings at Inflation (the promoter agreement) contains a very similar definition. The term does not appear again in that agreement or elsewhere in the materials produced by Patty Malones.
4. The consequence of an event being culturally specific under the VCE and on Patty Malones' evidence is that it is preferred that the venue gives notice about the event to the DLU and consideration is given to whether additional security measures are required. In my preliminary decision, I found that there was no requirement that police be notified about all such events and that, when Patty Malones became aware on 24 September 2011 that the event was named Africa Fest, there was sufficient time available for it to raise any concerns with DLU before the Saturday night.[43] I will return to the question of security arrangements shortly.
5. Ms Steponavicius gave evidence that she had not heard the term 'cultural night' or the like until after this proceeding had commenced and it had never occurred to her that she ought to tell a venue about the race of the expected crowd.[44] I accept that evidence. Further, her evidence was that IDJS and she had provided information about the type of event planned and so were open about the fact that it was African-themed.
6. It was also alleged that Ms Steponavicius misled Patty Malones about the nature of the event by failing to disclose it was a promoter event rather than a corporate function. A corporate function is in the nature of a private function. A promoter event has a commercial nature with, for example, the promoter advertising the event, selling tickets and/or taking a share of the door entry fee.
7. The applicants drew attention to the following matters in support of their contention that at all times IDJS was open about the nature of the event and provided information which ought to have alerted Patty Malones to it being African-themed:
   • The online booking enquiry form included a field for the type of event - the available options to select from were birthday party, bucks party, hen's party and corporate event.[45] Ms Steponavicius did not select one of those but, in the space available for other comments, explained that they were looking to hold an event at the venue on a Saturday night and that they were looking for a new venue as High Fidelity Bar had changed hands. Reference was made to an average of 300 to 400 patrons;
   • The online enquiry form included links to photo galleries of previous events, including one named 'afrodownunder'. Subsequent emails made reference to a range of music styles such as 'Top40-pop-R&B-hiphop-house-retro-disco-70s-80s-90s-reggae-classics-rock-world music' and there were further references to the IDJS website address and references to Twitter, Facebook and MySpace;
   • In response to a request to be advised of 'the expected crowd and type of music/dj's', Ms Steponavicius replied that they expected more than 250 people and that the music, to be played by their own DJs, would be a mix of 'R&B, dancehall, reggae, afrobeats etc'; and
   • In the emails exchanged between Ms Steponavicius and Ms Szoeke (Patty Malones' functions and events co-ordinator) there were questions and answers regarding a range of matters which showed the event was not a private function such as whether or not IDJS could supply its own 'door chick', whether Patty Malones would provide a float and till and whether there was a cloak room from which IDJS could collect the takings.
8. When the agreement was sent by Patty Malones to Ms Steponavicius it had been completed showing that the type of event was a 'Music Industry Night'. Ms Steponavicius' evidence was that she had not used that term in any conversation with Ms Szoeke. Mr Obudho's evidence was that different venues used different terminology and that he did not interfere with the name a venue used for an event.[46]
9. Patty Malones contended that, in discussions with Ms Szoeke, Ms Steponavicius had said that the event was for persons over the age of 25, that it would be a mixed crowd and that the function was for clients of their entertainment business, IDJS.
10. Ms Szoeke's evidence was that she was told that IDJS had run previous events at High Fidelity Bar and that they had no issues with anti-social problems during any function inside or outside the venue.[47] Her further evidence was that she had a standard guide which was something like a checklist and a booking form and that in the course of a discussion with Ms Steponavicius she collected the required information. Ms Szoeke said she was told during the conversation it was a corporate event.[48] When asked about how that fitted with the email comments relating to finding a new venue, charging an entry fee, having a door chick and access to a cloak room, she said that none of that meant it was not a corporate event. She explained that some corporate entities run regular nights and others charge a fee as a donation or towards a bar tab.[49]
11. Ms Szoeke said she recalled Ms Steponavicius talking about being in the music industry, being left stranded and that the event was for their clientele. She further explained that she would have typed in the descriptor 'Music Industry Night' herself based on her understanding of the type of event based on her conversations with Ms Steponavicius.[50]
12. Ms Szoeke gave evidence she looked at some of the links and photo galleries of previous IDJS events. Her evidence was that she formed the view that IDJS attracted a mixed crowd. Her evidence was that it was not apparent to her from viewing those pages that the event was African-themed or likely to be.[51]
13. I accept Ms Steponavicius evidence that she did not tell Ms Szoeke that IDJS was planning a corporate event. That was one of the options on the inquiry form and she did not select it. There was no evidence that IDJS held corporate events for its clients. While the evidence indicates that these events started out being held at private homes and more in the nature of parties, for many years, IDJS had run African-themed nights at other venues on a commercial basis. Even if the night was a corporate event in the broader sense suggested by Ms Szoeke, there was nothing in the information Ms Steponavicius provided that suggested it was an event of that kind.
14. There is no mention in the booking related emails of a corporate event. While the emails include a reference to 'guests', they also refer to a cover charge and IDJS usually making money from takings from the cloak room. Further, in an email dated 10 September 2011 Ms Steponavicius suggested that Ms Szoeke attend an IDJS event at High Fidelity Bar that night to see 'how we work and the quality and number of patrons we get.' It would have been quite inconsistent with those emails for Ms Steponavicius to have told Ms Szoeke on 12 September 2011 that it was a corporate function.
15. I accept that it is likely that in respect of this booking, Ms Szoeke followed her standard practice and sought information about the event in the telephone conversation with Ms Steponavicius. However, in the absence of a written record of the answers, where there is a written record of the booking arrangements in the form of the emails and where around four years have passed since the conversation, I am not persuaded that I should accept her recollection as being accurate.
16. Ms Tsamis gave evidence that 'Music Industry Night' might mean an event where the other party arranges its own music or entertainment - she referred to the organiser having their own style of entertainment and emphasised it is different to a promoter event.
17. Mr Dromi gave a birthday party as an example of a function and an underage event or theme night as an example of an event.[52] When explaining the difference between a function and a promoter event, he said functions can be large or small and often involve the hire of a room and a tab on the bar. An event is when people tend to want to have a charge on the door and go for longer hours. The events usually involve a higher minimum bar spend. He said that anything going later than 1:00 am tends to be high risk. He said that corporate events tend to start early and last for around three to four hours, finishing by around 9:30 pm.[53]
18. Given the range of types of events and the various arrangements which were described by Ms Szoeke, Ms Tsamis and Mr Dromi as potentially falling within the corporate event category, I am not satisfied that the meaning would necessarily be clear cut to an outsider. Given Ms Tsamis' evidence about the meaning of the term 'Music Industry Night', I do not understand that term to be synonymous with the term 'corporate' when describing events. Mr Obudho's evidence that different venues use different terms and that is a matter for the venue, seems reasonable to me. Ms Steponavicius answered all questions she was asked in the emails exchanged, was unaware of the term 'culturally specific event' and was not aware of the various ways in which Patty Malones describes events for internal and contractual purposes.
19. The available evidence suggests to me that, when Ms Szoeke prepared and sent the agreement, she was under a misapprehension about the nature of the event when she described the event as a 'Music Industry Night'. I accept, as a consequence of that, Patty Malones was also under a misapprehension. It seems likely to me that Ms Szoeke either misinterpreted what Ms Steponavicius said about the event in the telephone conversation and failed to compare what was said in the emails, or perhaps she had misinterpreted the conversation not having read the emails closely. Patty Malones has not proven that Ms Steponavicius, acting for IDJS, failed to appropriately disclose information about the event or that she otherwise misled Patty Malones' representatives about the event.

1. Patty Malones contended that IDJS and Ms Steponavicius failed to disclose issues with violence at other events they had run and so deprived Patty Malones of the opportunity to make a risk assessment.
2. Mr Obudho and Ms Steponavicius said that, from the outset, they was open to having IDJS events scrutinised by Patty Malones, including by inviting Ms Szoeke to come to one of the events at High Fidelity Bar. Further, as was explained in the online enquiry form submitted on 26 August 2011, IDJS was looking to hold regular events at a new venue and that was part of the proposition being put to Patty Malones. Accordingly, Ms Steponavicius and Mr Obudho contend they had no reason to mislead Patty Malones and, in fact, they were open to discussion about their past events as they wanted to establish an ongoing relationship with a venue.
3. Leaving the alleged street brawl discussed earlier to one side, in the end the evidence showed that there had been two incidents of violence associated with an IDJS event prior to 1 October 2011 and one after that date.[54] Given the timing of the latter, it could not have been relevant to Patty Malones' conduct on 26 September 2011 and so will not be considered.
4. The first incident occurred in around July 2011, at the High Fidelity bar. Mr Obudho was the DJ on that night. It was his understanding that there was an altercation between two people and that one male was ejected. The police attended and the night then proceeded as usual, finishing at around 3:00 or 4:00 am.[55]
5. On a date in September 2011, (identified after some uncertainty as 10 September 2011), there was some violence at another event at High Fidelity Bar in Bourke Street. Two men were ejected and they then tried to get back in. One of the men picked up a bollard and tried to hit the door. The police were called and it was agreed between the police and the venue owner that the event should be shut down. That was done by Mr Obudho putting on some slow music (two or three songs) so that the patrons would gradually leave.[56] Mr Obudho agreed that neither he nor Ms Steponavicius informed Inflation about the 10 September 2011 incident at High Fidelity Bar.[57]
6. Mr Obudho gave evidence about dealings with Eleven A/Highlander Bar subsequent to October 2011. The evidence showed that in early October 2011, there was an exchange of emails between the manager of functions at Highlander Bar and Mr Obudho. The manager was friendly in tone and was happy to arrange an event at the venue.[58] I understand that Mr Obudho relies on this evidence to refute the suggestion that there was serious violence at one of his events at Eleven A/Highlander - had that been true, it would seem unlikely that the venue would be willing to enter into further event arrangements with IDJS.
7. Mr Obudho's evidence was that by around 1 October 2011, IDJS had run about 40 events with around 400 patrons at each. Evidence was given about events run in Adelaide more than once following the Rugby 7s competition.
8. Ms Steponavicius denied misleading Patty Malones about these matters. She says that she was not asked about past events and patron behaviour in the emails or other preliminary dealings with Patty Malones. She specifically denied being asked about anti-social behaviour by Ms Szoeke. As noted previously, in one of the emails sent to Ms Szoeke in the lead up to the signing of the agreement to use the Basement for the event, Ms Steponavicius said 'You are welcome to come down to High Fidelity (461 Bourke Street, Melbourne) tonight to see how we work and the quality and number of patrons we get.'[59]
9. Patty Malone's closing written submissions refer to the incident at the High Fidelity Bar on 10 September 2011. The submissions refer to it as involving police attendance and the cancellation of the event. There is also reference to another violent incident at either Eleven A or High Fidelity Bar. Inflation says these are incidents about which they ought to have been told.
10. The evidence before me shows that, at the time the booking was being discussed with Patty Malones, there had been two instances of violence at IDJS events. The first seems to me to be likely to be so commonplace as to not warrant attention.
11. While it is apparent that the second incident on 10 September 2011 was more serious given that the police requested that the event finish early, the description indicates that there were two patrons who behaved violently after they were ejected. It is not apparent to me how it can be said that IDJS was responsible for their actions. Where the evidence indicates that IDJS had at that time run around 40 events with around 400 patrons each time, I am not prepared to find on the basis of one incident that anti-social behaviour and violence were features of IDJS' business at the time.
12. In this context, I note that none of the police officers called to give evidence appeared aware of any inappropriate management of events by IDJS nor made any adverse comments about IDJS.
13. I further note that the evidence included information about anti-social and illegal behaviour at and outside Patty Malones' venues including occasions when police attended.[60] I will discuss one of those incidents in more detail shortly.
14. None of the evidence relating to issues with patrons' behaviour surprises me or leads to an automatic conclusion that Patty Malones or IDJS operates irresponsibly. In the past there has been a large amount of media coverage about anti-social behaviour and violence by patrons of late night venues in the city of Melbourne and elsewhere. Unfortunately, the incident which occurred on 10 September 2011 at High Fidelity Bar seems likely to be unremarkable. The way it was handled strikes me as an example of responsible management of a situation which might have led to more violence and conflict and I assume that is why police asked for the event to be ended early. IDJS complied with that directive, apparently without complaint.
15. At the hearing, there was evidence that after the police visited Inflation on 24 September 2011, Patty Malones made enquiries about IDJS. I have noted already that no one approached Eleven A about the alleged street brawl but evidence was given that calls about IDJS were made to others. Those calls were said to have been made not by Ms Tsamis, Mr Dromi or Mr Naumovski but rather by Mr Eddy Cox, business partner of Mr De Bono and co-promoter of the Vegas night run at that time at Inflation on Saturdays. Mr Cox was not called to give evidence but apparently he was told by someone (possibly the manager of CBD Nightclub) that there had been anti-social behaviour elsewhere and that IDJS owed money to a venue.[61]
16. In the course of cross-examination, Mr De Bono gave evidence that he made some enquiries about IDJS with other people, including by speaking to the manager of the CBD nightclub. He did not recall being told anything about an unpaid invoice.[62] There was no mention of those enquiries in his witness statement.
17. The list of events run by IDJS did not include any held at CBD nightclub before 1 October 2011. There was an event held there, though, in 2014. Mr Obudho gave evidence about a booking at CBD Nightclub and produced an email and invoice. The email indicated that there was an outstanding invoice for the sum of $233.50 and that had arisen because IDJS had used the incorrect account number when it had attempted to make payment in November 2014.[63]
18. I do not accept the proposition that, during discussions about the booking, Ms Steponavicius misled Ms Szoeke about past events run by IDJS. All of the evidence points to Ms Steponavicius and IDJS being willing to provide information about their business.
19. I consider it is more probable than not that the alleged enquiries about IDJS were made sometime after 26 September 2011 and possibly after these proceedings were commenced. I have reached that view because Ms Tsamis' evidence was that, in September 2011, she received information about violence and money owed. Despite the time that has passed since the proceedings were commenced, no evidence has emerged of money being owed to any venue other than CBD nightclub and that concerned an event in 2014.
20. I now turn to the form of agreement and the question of additional security

The form of the agreement and the question of additional security

1. Patty Malones says that, had it known that IDJS' booking related to a promoter event, it would have ensured that IDJS entered into its standard form promoter agreement rather than the standard form 'Geddes Lounge Function Agreement'. [64]
2. I mentioned earlier that the promoter agreement contains a definition of the term 'culturally specific party' which appears to be based on the definition of 'culturally specific event' contained in the VCE. There is no operative provision in the promoter agreement which mentions a 'culturally specific party' and so I conclude that the African-themed aspect of the event is not relevant to the form of agreement.
3. The promoter agreement is different from the function agreement in a number of respects including:
   • It requires the promoter to supply to Inflation copies of advertising material in advance (clause 8);
   • It gives Patty Malones the right to cancel the agreement if the promoter fails to give 30 days notice in writing disclosing information required to make an appropriate risk assessment for the booking. A subsequent clause makes it plain that the information will be required to be provided if Inflation first gives the promoter notice. The promoter agrees that, should Victoria Police object or have safety or other concerns about the event, the agreement may be terminated immediately (clause 20); and
   • The schedule is more detailed including space to set out the number of crowd controllers and other staff to be provided by Patty Malones and the promoter and other details such as those of the band or DJ.
4. Clause 3.2 deals with security and says as follows:

Where the PROMOTER charges an entry fee, the PROMOTER must pay in advance the costs of all crowd controllers as specified in the Schedule. The number of crowd controllers required is to be determined and supplied by PATTY MALONNES (sic). All crowd controllers must be licensed under, and comply with the Victoria Private Agents Legislation. As a minimum, the number of crowd controllers required under the conditions of the Liquor Licence are to be employed and, furthermore, PATTY MALONNES (sic) may stipulate additional crowd controllers to be employed at its discretion to meet its liquor licensing and duty of care obligations.

1. It is convenient to note here that there was criticism of IDJS for not providing a copy of its advertising material in advance as required by clause 8. There was no suggestion that Ms Steponavicius was asked for such material or knew it ought to be provided.
2. As discussed earlier, Patty Malones relies on the fact that a risk assessment was not able to be undertaken in the manner provided for in clause 20. At the heart of that complaint is the allegation that, in order for the night to proceed, it would have been necessary for IDJS to pay the costs of the additional security Patty Malones determined to be necessary.
3. Clause 6 of the agreement IDJS entered into said the following:

6.1 Where the client charges an entry fee, the client must pay in advance the costs of crowd controllers. The number of crowd controllers required is to be determined by Patty Malone's P/L and to be supplied by the client only from a company recommended by Patty Malone's P/L.

1. There is no effective difference between the agreements in respect of Patty Malones' entitlement to determine the number of security staff required to be present and the obligation of the hirer of the space to pay those costs. Accordingly, the form of the agreement in respect of the question of security costs has not been determinative of the issues in dispute.
2. While Ms Tsamis gave evidence that, she would not have taken the booking, had she known that IDJS had events shut down by police in the past, the other evidence does not bear that position out.
3. At the preliminary hearing, Ms Tsamis gave evidence that her staff suggested to IDJS that they sit down with police and discuss the event and that the night be re-scheduled for another time.[65]
4. It will be recalled that Mr Dromi's evidence was that he believed that IDJS had been involved in the street brawl which led to Inflation and other venues being closed for a period of time at the request of police. Even if I proceeded on the basis that the police officers had warned about problems with IDJS at other venues, Mr Dromi's evidence was that, at the conclusion of the 26 September 2011 conversation, he had left it with IDJS to come back to Patty Malones about paying for additional security.[66] He gave evidence that while for big crowds the more notice the better, security bookings for Saturdays are usually made on Mondays. [67] At the preliminary hearing, I found that as at the Monday, there was time for Patty Malones to discuss any security concerns with Victoria Police.
5. The effect of these aspects of Patty Malones' evidence is I consider it more probable than not that, had IDJS agreed to pay additional costs for security, the event could have proceeded on 1 October 2011 or on another night.
6. Ms Steponavicius absolutely denied the suggestion that during the course of the conversation on 26 September 2011, IDJS was asked to contribute to additional security costs as a means for the event to proceed. I will come to the full content of the conversation shortly but will address one aspect of this question now. As set out below, I prefer Ms Steponavicius' evidence about the conversation generally. I am satisfied that her evidence on this matter should be accepted for another reason.
7. On 16 September 2011, the agreement was emailed to Ms Steponavicius for signing. On 21 September 2011, Ms Steponavicius emailed Ms Szoeke saying:

In addition to the $350 room hire (and minimum bar spend if not reached), do we need to pay for crowd controllers also, as per 6.1 of the contract?? And if so, please advise of how much. (my emphasis)

1. The next day, Ms Steponavicius sent another email making the same enquiry about crowd controllers. Ms Szoeke replied that day saying that the room hire is non-refundable and that the 'only' additional cost would be if the bar spend was not reached. Later that day Ms Steponavicius replied attaching a receipt for payment of the deposit and saying the contract would be forwarded that day 'given all of our questions are answered'.[68]
2. It is apparent from that email that Ms Steponavicius was aware that IDJS might be required to pay additional security costs and that it was willing to do so.

1. Patty Malones contended that, separate from the security and other issues, it would not have been appropriate for there to be two African-themed events at Inflation at the same time.[69] This was said on the basis that the DJ's at the Vegas night, run by Mr De Bono and Mr Cox, played what might be described as African-American and similar music and it would not be fair on them if patrons were diverted from their event to the Africa Fest.
2. Mr De Bono stated in re-examination that on Monday, 26 September 2011, he was called by Mr Dromi and asked if he would mind if the Africa Fest night went ahead. Mr Dromi said it would be a one-off. Mr De Bono said he was willing to agree if the other event made use of the rear entrance from Geddes Lane. He was asked by Mr Sowden if conditions were put on the other event going ahead. His reply was:

What it was, the conditions were, if they pay for extra security, do you mind putting this other event on and I said, 'That's up to you, it's not my business but it's up to you' and they said 'If they do that, you don't mind' and I said 'No, I don't mind', I said 'As long as they put extra security guys on I don't mind because I've heard there's trouble and whatever, but if there's extra security guys on, we might be able to control it if there is any trouble.[70]

1. Mr Dromi gave no evidence of such a conversation. His evidence about Mr De Bono was to the effect that Mr De Bono was upset and confused about the prospect of another African themed night at Inflation. He said that he thought the first thing Mr De Bono probably thought was that they were going to 'shaft' them and he then referred to needing to appease Mr De Bono and Mr Cox.[71]
2. I have significant reservations about the evidence of Mr De Bono on this matter. Like the evidence about his involvement in the police visit on 24 September 2011 and his enquiries about IDJS, this matter was missing from his witness statement. Given this evidence was not raised by or with any other witness, it appeared the purported conversation had never been raised with Patty Malones' counsel or his instructor. However, should the evidence be correct, Mr De Bono's expressed position is not supportive of the contention that two similarly themed events could not proceed on the same night.
3. I will next address the Chaser's incident.

1. As will been seen below, Ms Steponavicius and Mr Obudho said that during the course of the 26 September 2011 conversation, Mr Gianoulas talked about a recent incident at one of their venues. The incident he was referring to occurred at Chasers.
2. Ms Tsamis gave evidence that the incident occurred on 3 September 2011 and it was an African Zimbabwe night. When the venue closed, two or three security staff were attacked with golf clubs as they were leaving to go home. She understood that the people who attacked her staff were not patrons but had been refused entry that night. She said the police attended and made a liquor licensing incident report.[72] That report was before me and included the following:[73]

At approximately 4:00am on Saturday 03/09/2011, Chasers nightclub situated at 386 Chapel Street finished a promoted event targeting African patrons. At this time, approximately 150-200 African youths exited the nightclub onto Chapel Street.

Shorty (sic) after 4:00am, a group of African males wearing hooded tops have attended the front of Chasers and have assaulted 2 x Security staff [words redacted] with weapons (believed to be golf clubs and pieces of timber or similar). According to victim's and witnesses's (sic), approximately 4 or 5 males from the group were primarily involved in the attack brandishing said weapons.

This incident followed a previous incident . . . involving African males following attendance of (sic) Chasers nightclub.

1. In cross-examination, Ms Tsamis confirmed that she was aware that IDJS had no involvement in that event but agreed that the people who carried out the assaults were African.[74]
2. The witness statements and evidence given on behalf of Patty Malones seemed to suggest that Ms Steponavicius and Mr Obudho were stating the above event happened at Inflation and Patty Malones seemed to use that as a basis to say that this incident was not the subject of any discussion. As will be seen below, Ms Steponavicius and Mr Obudho understood this incident happened at one of Patty Malones' venues and did not know which.

1. There was no dispute that, on 26 September 2011, following a request from Ms Szoeke for her to do so, Ms Steponavicius telephoned Mr Gianoulas.

Ms Steponavicius' evidence of the 26 September 2011 conversation

1. In her witness statement, Ms Steponavicius said that, after seeing an email from Ms Szoeke asking her to call the general manager 'Bill', she called the number provided and put the telephone on speaker function. She stated that Mr Obudho was with her and the telephone was put on speaker so they could listen together.
2. When Mr Gianoulas came onto the line, he explained he had some concerns about Africa Fest. Her witness statement then said:

He stated that they had recently run an event at which the security staff had been attacked by Africans with baseball bats. Bill stressed his need to ensure the safety of his staff. He stated that, for this reason, Geddes Lounge would not be proceeding with this event.

I told Bill that IDJS had not had previous dealings with Geddes Lounge, and that the event he was describing was nothing to do with us.

Bill restated his need to protect the safety of his staff, referring again to the recent experience where security staff had been attacked. He then added that our event would not be proceeding 'due to the fact that the majority of your patrons will be African'.

I once again confirmed that IDJS had nothing to do with the event Bill had referred to. I then asked Bill to confirm his decision. I stated words to the effect: 'Bill. Just so I am very clear about what you are saying, are you not proceeding with our event because the majority of our patrons will be African?'

I replied by expressing my disappointment. It appeared to me that there was no way to progress the situation. We exchanged our farewells and terminated the call.[75]

1. Ms Steponavicius also gave oral evidence about this matter.
2. She stated that Mr Obudho was present for the whole of the conversation but took no part in it.[76]
3. She said that Mr Gianoulas referred to the planned event and then raised the attack on staff by people who were African. Ms Steponavicius said that they had not had an event with 'you' before. He asked where they had held previous events and Ms Steponavicius said most recently they had held events at the High Fidelity Bar and Eleven A (now called Highlander Bar) as well as interstate venues. She said she then offered for him to call the venues as references if he wanted to. Ms Steponavicius said he next asked if there were any incidents at those venues. She said that there had been some small incidents but nothing 'untoward' and again suggested he check with the venues and offered to provide details.
4. Mr Gianoulas next made the comment about the majority of patrons being African. Ms Steponavicius said she was quite shocked to hear and that was why she repeated back what he had said. She recalled saying 'Can't you speak to our previous venues for references. I really don't know if there's anything else I can say'. He responded that there was nothing more she could say. She said 'okay' and the call was terminated. [77]
5. When asked what happened after the phone call was over, Ms Steponavicius said:

Obviously I was with Kwenda and we were in disbelief, naturally and quite shocked that that had been told to us, that was the reason they were cancelling our event because clearly the majority of our patrons would be African and from then we sat down and started putting together an email and rather than being reactive and emotive, we waited for the next day to really finalise the email and send it off to Inflation, basically just expressing our disappointment that the decision to cancel the event was clearly racially motivated.[78]

1. In cross-examination, Ms Steponavicius repeated her evidence about telling Mr Gianoulas there had been some minor incidents at their other events and her suggestion that he contact them to obtain references.[79]
2. Ms Steponavicius was asked questions about the event where security staff had been attacked. She was told that event occurred at Chaser's nightclub. Ms Steponavicius said Mr Gianoulas did not say where it happened - he just said they had a recent event where members of their security personnel were attacked with baseball bats. It was suggested to her that Mr Gianoulas said words to the effect that he had not known there were going to be Africans at the event. Ms Steponavicius denied that was said. She stated that the words used were those quoted in the email sent the next day and that she had asked him to repeat it on the telephone. Her evidence was that when the conversation first started, Mr Gianoulas said he had to talk to her about the planned event, that next he mentioned the attack on security staff, he asked about recent places they had held events and next he said that, because the majority of the patrons would be African, they would not be proceeding with the event.[80]
3. Ms Steponavicius denied the proposition that Mr Gianoulas had specifically asked her about a recent event at Eleven A. Rather she again stated that she mentioned that bar as one of the places they had recently held events.
4. Ms Steponavicius was asked whether Mr Gianoulas said he would have to put on extra security if he was going to hold the event on the night. She said 'No, sir, he made it categorically clear that he would not be proceeding with the event because the majority of the patrons would be African.'[81] Ms Steponavicius denied the suggestion that Mr Gianoulas had raised the issue of further security and that she had said that she would not pay for it. Further, she said, had that been raised, they would have offered to pay because they had already offered to do so in an email which preceded the making of the agreement.[82]
5. I asked Ms Steponavicius about the circumstances in which the telephone call was made. She stated that she and Mr Obudho were at home in the bedroom. After confirming that she was very shocked by the conversation, I asked whether it was correct that Mr Obudho said nothing. She said that was correct. I expressed some surprise at that, on the basis that I expected that he would have been the person most offended. Ms Steponavicius said that Mr Obudho's face dropped and that it was awful to see that. She said:

Obviously I had a much different reaction to it, I was quite shocked and Kwenda's face and reaction said it all. Like, we are a professional body so for us - he didn't interject, we just continued and the professionalism that we are and that we do, it was only when the call was terminated that he truly expressed his shock and disbelief at it.[83]

1. The part of Mr Obudho's witness statement which addresses the telephone call with Mr Gianoulas is in very similar terms to that of Ms Steponavicius.
2. In his evidence in chief, Mr Obudho confirmed he did not speak during the call. He recalled that Mr Gianoulas asked if they had held an event at their venue where staff had been beaten with baseball bats and that Ms Steponavicius said no, that was not us. He recalled that Ms Steponavicius said they had been at High Fidelity Bar and Eleven A. Mr Gianoulas asked if they had any big issues with other events. Ms Steponavicius said nothing significant. Mr Gianoulas said the event could not go ahead because he feared that the same thing that happened previously 'whichever crowd that was could potentially happen this time around.'[84]
3. Then Ms Steponavicius said 'So, you're not going to hold our event because the majority of our patrons are going to be African' and he said 'Yes, that's what it is.' Ms Steponavicius then repeated it because he had written a note to her saying to ask the question again so he could reiterate it because 'obviously' it was a shocking statement and was not expected. Mr Gianoulas said it again and then Ms Steponavicius concluded the phone call.[85]
4. Afterwards they drafted an email, consistent with their practice of following up phone calls in writing.
5. In cross-examination Mr Obudho was asked whether it was correct that Mr Gianoulas said the incident when security were attacked happened at Chasers. He responded that Mr Gianoulas had referred to one of their venues. Mr Obudho was asked whether Mr Gianoulas said that a number of African males assaulted security staff with weapons, golf clubs and pieces of timber or something of that kind. Mr Obudho agreed that Mr Gianoulas could have said something like that. Mr Obudho was asked if he was told that some of the staff were very seriously injured - he responded that he did not recollect that but agreed Mr Gianoulas might have said so.[86]
6. Mr Obudho denied the proposition that Mr Gianoulas asked about an event at Eleven A. He also denied the suggestion that Patty Malones would only conduct the event if they agreed to pay for more security. He said it was 'definitely not true' that Ms Steponavicius said she would not pay for more security. He agreed that Mr Gianoulas could have said that he had only just found out that the event was an African night but he also noted he could not know when Mr Gianoulas found out anything.[87]

1. On 27 September 2011, Ms Steponavicius sent the following email to Ms Szoeke:

We are still extremely shocked and disappointed that your management decided to cancel our event yesterday just 5 days before it was to be held, despite everything that had been confirmed and finalised by our signing and returning the contract, deposit payment and after having invested much time, money and resources into campaigning for the event and promoting your venue.

The grounds on which our event has been cancelled, that being 'due to the fact that the majority of patrons will be African' as Bill stated on the phone yesterday, is particularly shocking to us as such a decision has fundamentally racially-driven, and compounded by the fact that you (Inflation) have never worked with us before to know the quality of our own events and patrons. Further, we have always been transparent with you (Inflation) regarding the details of our event via our phone and email discussions ever since making our initial enquiry with you.

It is with utmost regret that we will be informing our committee, subscribers and expected guests of the extreme late cancellation and the circumstances surrounding it, and trust you will refund our deposit as soon as possible.[88]

1. Banking details were provided in the 27 September 2011 email. Further emails in the same terms were sent to Ms Szoeke on 29 September 2011 at 5:44 and 5:45pm. On 29 September 2011, Ms Szoeke emailed referring to the bank account details and saying:

I will arrange this for you through our accounts department ASAP.

1. Mr Obudho gave evidence about the email. He expected that the email would get to someone in authority and perhaps, after it was read, IDJS would be given a chance. He emphasised that the call was only five days out from the planned event. Mr Obudho said he was seeking a solution. After they received the above email response from Ms Szoeke and the essence of their email was not addressed, he considered 'pushing it'. However, he realised that the event was not going to go on. He commented that they re-sent the email and were surprised that no one responded. He said that if he received an email like that and somebody was accusing him of something like that, he would have responded. He said once they got no substantive response it dawned on him that the event had to be cancelled and communicated. [89]
2. Mr Obudho confirmed that the 27 September 2011 email was drafted straight after the telephone call finished.[90]
3. Mr Sowden for Patty Malones rightly noted that the email was not a complete record of all that was said in the conversation as it made no mention of the Chaser incident. It is apparent on its face that the purpose of the email was to set out and confirm the understanding that the event had been cancelled on race based grounds. The fact it did not include a word by word account of the conversation does not detract from the weight to be given to the email.

1. On 26 September 2011, Ms Tsamis was in her office at Chasers which is located close to Mr Dromi's. She stated that she heard Mr Gianoulas take a phone call. She said that, as the telephone was on speaker she could overhear the discussion. She stated that she could hear Mr Gianoulas speaking to a woman she now knows to be Ms Steponavicius. She stated that she heard Mr Gianoulas ask:

. . . if IDJS promoted a function at Eleven A and if there were any issues/problems and Kylie said no. Kylie also said that the problems that did happen on the street were not in the venue, and that it was their customers that left the venue which were involved in the brawl on the street.

Bill explained to Kylie that every Saturday night we have an African night and Inflation has a high security format for cultural events which works and there have been no issues.[91]

1. Ms Tsamis expanded on her evidence before the tribunal. She explained that she was not present for the whole of the conversation - she said she walked into the room when there was the discussion about Eleven A, whether IDJS had held functions there and whether there had been anti-social behaviour and problems and then left. She confirmed the above evidence about where the Eleven A related problems were said to have occurred. When asked the reason for the cancellation of the planned event, Ms Tsamis' evidence was that it was due to a lack of disclosure of information. She denied that the reason for cancellation was race.[92]
2. In cross-examination, Ms Tsamis agreed that she would not have heard all of the conversation with Ms Steponavicius. She stated that Mr Dromi told her later that Mr Gianoulas had left it with Ms Steponavicius to come back to them about whether they would agree to pay for more security so that the event could go ahead as planned.[93]

1. Mr Dromi stated that he was present when Mr Gianoulas spoke with Ms Steponavicius on 26 September 2011. He stated:

On Monday 26th September 2011 Bill received a call from Kylie in the office and Bill placed the phone on speaker. I was present throughout the conversation and at all times Bill was acting on my instructions.

Bill asked if they had held any events at Eleven A and Kylie said yes. He asked if they have had problems and she said no it was people on the street after leaving the venue.

Bill said we had concerns about going ahead with the 'function' as it was in fact a cultural event and could only go ahead if they contributed to more security costs and had a discussion with the Police.

Kylie said she would not want to contribute to any costs. Kylie also said that what happened on the street was not their problem. Bill said it was their problem to keep amenity safe. Bill said it was best that we cancel this event as to hold an event we must have more security and that the only way Inflation would host an event would be after the Police had been consulted.

Bill stated on Saturday Nights we run an African Night that has a tight security format that works and we don't have any issues.

Bill left it up to Kylie to contact us.[94]

1. Mr Dromi said that Mr Gianoulas never asked Ms Steponavicius if it had held events with Geddes Lounge before as they knew that had not happened. He stated that Mr Gianoulas did not say that Geddes Lounge staff had been attacked with baseball bats as that had never happened and Geddes Lounge was not raised in that context in the conversation.
2. In his witness statement, Mr Dromi stated that he was speaking to Mr Gianoulas throughout the telephone conversation and was taking part in the conversation especially about the police visit and their concerns.[95] I note that this latter statement is difficult to understand as Mr Dromi does not say in his witness statement that Mr Gianoulas mentioned the police visit and concerns to Ms Steponavicius.
3. In his evidence in chief, Mr Dromi said that Mr Gianoulas was asking her about the event and that Ms Steponavicius was saying it 'was not their people' and that it had 'happened outside'. He stated that Mr Gianoulas was talking about IDJS affecting the amenity of the area and saying that they could not put Patty Malones in that position. He stated that she replied ''No, it's not my fault, it's not our client, they did it outside' and all sort of mumbo-jumbo'. Mr Dromi then confirmed with Mr Gianoulas that the brawl had involved IDJS and said to Ms Steponavicius 'How dare you put my business at risk. How dare you put the licence at risk.[96]
4. Mr Gianoulas was then said to have told Ms Steponavicius that it was a high risk event, Inflation had procedures in place and that they would have to pay for security. Mr Dromi said that Ms Steponavicius said she would not pay. Mr Dromi then gave evidence he had this exchange with Ms Steponavicius:

Mr Dromi: Listen Kylie, you will never, ever, jeopardise my business. You will never, ever jeopardise my licence, how dare you. You want this event to go on, you've got to pay for guards.

Mr Dromi: Well then you are going to have to pay for half because you cannot lumber me with that risk and I am not going to take on that expense. You've got to meet me at least halfway.

Mr Dromi: Well, that's my rules. If you don't pay for half, this event will not go on. Bill that's it, okay. That's it. [97]

1. Mr Dromi was asked if he recalled Mr Gianoulas referring to an event involving Africans at Chasers. His answer was 'No, Why would he.' [98] In cross-examination he said it was a 'fabrication' that Mr Gianoulas referred to an event 'at one of their venues', referring to the incident at Chasers.[99]
2. He absolutely denied the proposition that Mr Gianoulas said, in his presence, that the event would not proceed because the majority of the patrons were to be African.[100]
3. Mr Dromi's witness statement contained none of the above evidence about what he says he contributed to the conversation with Ms Steponavicius.
4. In none of Ms Steponavicius' or Mr Obudho's witness statements or in their oral evidence was there any mention of Mr Dromi being an active participant in the 26 September 2011 conversation. In fact, there was no suggestion they were aware he was listening.

1. Mr Dromi's evidence of what he claims he said about the liquor licence being at risk during the course of the conversation was not put to either Ms Steponavicius or Mr Obudho. Nor had it been mentioned in the preliminary hearing, the pleadings or in Ms Tsamis' witness statement or oral evidence. While I allowed evidence beyond that contained in witness statements to be given at the hearing and have taken that additional evidence into account, Mr Dromi's evidence about statements he said he made is of a different nature to explanatory material. His witness statement said he took part in the conversation especially about the police visit and their concerns but made no mention of his statements in defence of Inflation's liquor licence.
2. Mr Dromi also said in his witness statement that he was being referred to by Mr Gianoulas in the telephone call. Not only was none of that evidence put to Ms Steponavicius or Mr Obudho, they were not asked if Mr Dromi participated in the discussion or mentioned the police visit.
3. Ms Steponavicius and Mr Obudho's evidence contained some differences as between themselves - Mr Obudho saying that Mr Gianoulas referred to an incident similar to that at Chasers happening again and Mr Obudho writing a note to his wife. They added to their evidence about the discussion with Mr Gianoulas, particularly about questions concerning IDJS' other events and violence. I regard that additional evidence, and similar oral evidence given by Ms Tsamis, as being in the nature of explanatory evidence where the witness statements were not comprehensive.
4. By contrast the oral evidence given by Mr Dromi in particular addressed entirely new matters not mentioned or covered in his witness statement. Where that evidence was central to the claim made and ought to have been known to Mr Dromi at the time the witness statement was made, I reject the contention that the gaps ought to be treated as errors or inadvertent omissions.
5. The applicants' closing written submissions characterised evidence given by Mr Dromi about the conversation as 'inconsistent, grossly exaggerated and unbelievable'.[101] I agree having regard to the following matters:
   • The significance of the evidence given in circumstances where the amended particulars of defence state that Mr Gianoulas was the person who spoke with Ms Steponavicius and that he made the offer to employ additional security staff with the costs to be shared with no mention being made of anything being said by Mr Dromi;
   • Consistent with those particulars, Ms Tsamis' witness statement said that Mr Gianoulas spoke with Ms Steponavicius and she made no mention at all of Mr Dromi participating in that discussion or there being any mention of Inflation's licence being at risk. Her oral evidence was of the same kind. While understanding that Ms Tsamis was in her next door office for part of the conversation, given the volume and passion applied to Mr Dromi's re-enactment of the conversation, it is surprising she did not hear any of that part of the alleged discussion if it did take place; and
   • The absence from Mr Dromi's witness statement of any of this important evidence.
6. I consider Mr Dromi's evidence about his claimed statements and the other evidence he gave about the conversation to be unreliable and likely to have been invented.
7. Part of Patty Malones' case is that the telephone conversation concentrated on the event at Eleven A and the alleged street brawl. Ms Tsamis' witness statement says that, at the time she was in the room, she heard Mr Gianoulas ask about that and that Ms Steponavicius effectively denied IDJS' responsibility for actions of patrons once outside the venue. While I am willing to infer that Ms Steponavicius might have said something about patrons' behaviour, I cannot accept the proposition that anything she said amounted to a concession that there had been serious violence at one of IDJS' events.
8. As discussed above, I am satisfied on the evidence that, prior to 26 September 2011, there had been a violent incident outside High Fidelity Bar which led to the event being shut down. I accept Ms Steponavicius' evidence that, when there were questions about their previous events and patron behaviour, she suggested contact be made with the venues for references. That is consistent with the offers which had been made in the emails with Ms Szoeke. That is also consistent with Ms Steponavicius and Mr Obudho seeking to make an ongoing arrangement with Patty Malones rather than simply booking a one off event.
9. Patty Malones seemed to contend that the Chasers incident was not mentioned at all - that was Mr Dromi's evidence. I cannot accept that to be correct. That is not only because I consider Ms Steponavicius and Mr Obudho's evidence to be more reliable but also because their evidence on this point makes perfect sense. The Chasers incident earlier in the month must have been very traumatic for the staff involved and Ms Tsamis as owner of the business. According to the police report, it was not the first time that there had been problems at Chasers with African youth. Ms Tsamis said there was some 'hysteria' about the booking. A staff reaction of that kind would be more consistent with a fear that there would be another violent incident at one of Patty Malones' venues rather than concern that IDJS was not willing to contribute to additional security costs.
10. Taking together:
    • The consistent and plausible evidence given by Ms Steponavicius and Mr Obudho;
    • The very questionable evidence of Mr Dromi;
    • The fact that Ms Tsamis was not present for all of the conversation; and
    • The content of the email of 27 September 2011, which I accept was drafted immediately after the conversation,

I accept Ms Steponavicius and Mr Obudho's evidence about what was said in the telephone conversation. In particular, I accept their evidence that Mr Gianoulas said that the reason the event could not proceed was because the majority of the patrons would be African. I find that the event was cancelled by Patty Malones in the conversation held on 26 September 2011 for this reason.

1. While I could accept the notion that Mr Gianoulas' comment might have stemmed from fears of more violence inside or outside the venue, its focus was the race of the patrons and an implied expectation that, African patrons would be more likely to be violent than other non-African patrons.

1. Having regard to the evidence about the arrangements for the Africa Fest event, I am satisfied that an appropriate description of the services to be provided by Patty Malones to the applicants as prospective patrons was, subject to payment of the entry fee and the usual entry requirements, to give them entry to Inflation and access to the Africa Fest event which included access to music, the bar and the venue's other facilities.
2. For the reasons set out above, I find on the evidence before me that:
   • Police officers alerted Patty Malones to the Africa Fest event but there is no established link between that visit, IDJS and an alleged occasion when police asked Inflation to keep its patrons inside due to a street brawl;
   • Prior to 26 September 2011, there had been one incident of serious violence at an IDJS event at High Fidelity Bar, but it had been appropriately managed with police and the venue owner;
   • Ms Steponavicius and Mr Obudho did not mislead Ms Szoeke or Mr Gianoulas about the nature of the event they were planning to hold or their past record;
   • As revealed by the emails sent before the 26 September 2011 conversation, Ms Steponavicius and Mr Obudho were open to scrutiny of IDJS' business and events and attempted to obtain and provide all relevant information. Consistent with that, they invited a representative of Patty Malones to attend one of their events and invited Patty Malones to speak to venues to obtain information and references;
   • Neither Mr Gianoulas or Mr Dromi asked IDJS to contribute to additional security costs to allow the event to proceed. Even if such a request had been made, IDJS would have agreed to do so in order to have the planned event go ahead;
   • Mr Gianoulas told Ms Steponavicius and Mr Obudho that, because the majority of their patrons would be African, the planned event would not proceed;
   • By cancelling the event, Patty Malones refused services to the applicants who would all otherwise have attended;
   • The cancellation of a planned event which the applicants intended to attend was unfavourable treatment because they were deprived of the opportunity to attend the social event and it was insulting and humiliating for that decision to be made on the basis of their race; and
   • A substantial reason for the cancellation of the event was because of the race of the prospective patrons, including each applicant.
3. For the reasons set out above, I reject the contention that the reason the planned event was cancelled was because of a refusal by IDJS to address Patty Malone's risk related concerns, including by contributing more to security costs. I reject the contention that, in its dealings with IDJS, Patty Malones simply applied its standard approach to an event of this kind and that it was IDJS' unwillingness to contribute to additional costs which was the reason for the event being cancelled.
4. The consequence of my findings is that the applicants have proven that Patty Malones contravened section 44 of the EO Act when, by cancelling the booking for the basement which was made for the purpose of holding the Africa Fest event, it refused to provide services to the applicants. That conduct was an act of direct discrimination under section 8 of the EO Act as it was unfavourable treatment because of the race of the prospective patrons, including the applicants.

1. There was evidence before me about a range of other matters that do not require findings to be made.
2. That evidence included a conversation Ms Szoeke said she had with Ms Steponavicius after she received the 27 September 2011 email. Ms Steponavicius denied receiving any call from Ms Szoeke or having any discussion about the cancellation of the event. It is not necessary for me to determine whether that telephone call was made, or whether Ms Szoeke sought to explain the decision and her view that Patty Malones is not racist as she said the call was made a few days after 26 September 2011.
3. The applicants asserted that Patty Malones' culturally specific party policy is inherently racist, relying in part on evidence given by Mr Dromi. It is not necessary for me to determine that question and this decision ought not to be treated as making a general comment about the attitude of Patty Malones or Ms Tsamis. I have no reason not to accept Ms Tsamis' evidence about the range of patrons who attend Inflation and the fact that race related theme nights have been held many times. While one might question the basis for some of the assessments which seem to be made about particular racial groups,[102] it seems to me most likely that the events in issue in this case were influenced by the incident at Chasers and are not evidence of broader racism on the part of Patty Malones as a business and Ms Tsamis personally.
4. There was much discussion about which promoter or private events are regarded as high risk, the range of events held at Inflation which may or may not fall within that description and whether the liquor licence had a high risk condition. Given my findings about the content of the 26 September 2011 conversation, there is no need to consider those matters.

1. The applicants have sought an order for costs in this matter but that was not the subject of address or written submissions. I will make provision for the applicants to make an application for costs and for that application to be heard. However, I draw the parties' attention to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) and note that, at present, it is not apparent to me that this would be a case which warrants departure from the general rule that parties bear their own costs, particularly given that I have dismissed a number of the applicants' claims.

[1] The third applicant withdrew from the proceeding.

[2] As at September 2011, the business name IDJS Entertainment was owned by Mr Obudho. On 20 April 2012, a company with the same name was created and it thereafter owned the business name. For the purposes of this proceeding, at all relevant times, Mr Obudho was IDJS.

[3] Obudho v Patty Malones Bar Pty Ltd trading as Inflation Nightclub [2014] VCAT 1390.

[4] See section 6 of the EO Act which sets out the attributes protected by the Act.

[5] Aitken & Ors v State of Victoria - Department of Education & Early Childhood Development [2012] VCAT 1547.

[6] See Slattery v Manningham CC [2013] VCAT 1869, paragraphs 38 to 53 and section 8 of the repealed Equal Opportunity Act 1995 (Vic).

[8] Stern v Depilation & Skincare Pty Ltd [2009] VCAT 2725 at paragraph 67.

[10] [2010] VCAT 1613.

[12] Amended particulars of defence dated 29 September 2014, paragraph 24(c).

[13] Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at paragraph 54 and Tate v Rafin [2000] FCA 1582.

[14] Ms Tsamis' evidence at the preliminary hearing - see reasons for previous decision, paragraph 43.

[17] Written submissions dated 19 June 2015, paragraph 4.

[18] [1982] HCA 27.

[19] Reply submissions dated 29 June 2015, paragraph 2.

[20] Written submissions, paragraphs 3 to 6.

[21] [1938] HCA 34.

[22] [1988] VicRp 42; [1988] VR 319.

[23] [1999] VSC 310, paragraph 41.

[24] For example DP McKenzie's decision in Stern v Depilation & Skincare Pty Ltd [2009] VCAT 2725 at paragraph 13, regarding pregnancy related discrimination; Finch v The Heat Group Pty Ltd [2010] VCAT 802, paragraph 959 and following.

[25] For example, see GLS v PLP [2013] VCAT 221 at paragraphs 35 to 46; Finch v The Heat Group Pty Ltd [2010] VCAT 802 at paragraph 943; and Collins v Smith [2015] VCAT 1029 at paragraph 37.

[26] For example, see RW v State of Victoria [2015] VCAT 266.

[27] See Dyke v IPM Operation & Maintenance Loy Yang Pty Ltd [2014] VCAT 954 at paragraph 49.

[29] Witness statement dated 25 February 2015 and evidence transcript pages 79 to 84.

[30] Witness statement dated 24 February 2015 and evidence transcript pages 74 to 78.

[31] Witness statement dated 25 February 2015 and evidence transcript pages 139 to 141.

[32] Mr Dromi's witness statement dated 23 June 2014, paragraphs 6 to 10; Mr Dromi's oral evidence, transcript, pages 313 to 314; Mr Naumovski's oral evidence, transcript pages 346 to 347; and Mr De Bono's oral evidence, transcript pages 357 to 359.

[33] Ms Tsamis witness statement dated 24 June 2014, paragraph 7.

[41] Ms Tsamis, transcript, page 188 and Mr Dromi, transcript, pages 305 to 306.

[43] See findings made about the time required to liaise with police in my earlier decision - paragraphs 62 to 65.

[47] Ms Szoeke's witness statement dated 23 June 2014, paragraph 5.

[54] Mr Sowden, counsel for Patty Malones, asked Mr Obudho questions about incidents of violence at events which post-dated 1 October 2011. I disallowed detailed questions about those matters on the basis that they could not have been relevant to the events of 26 September 2011.

[56] Transcript, pages 18 to 19 and 50.

[61] Transcript, pages 188 to 195 and pages 304 to 305.

[65] See my earlier decision, paragraph 43.

[69] Ms Tsamis' evidence at the preliminary hearing as summarised in my earlier decision, paragraphs 41 to 42.

[75] Witness statement dated 4 June 2014, paragraphs 12 to 17.

[91] Witness statement, paragraphs 8 to 9.

[94] Witness statement, paragraphs 13 to 18.

[95] Witness statement, paragraphs 19 to 23.

[102] For example, Mr Dromi's discussion about risks associated with Vietnamese groups - transcript pages 328 to 329.