Tate v Rafin

The proceeding 29 Apparently, the club had incurred expense in connection with legal advice. However, no effort was made to obtain reimbursement of this expense from Mr Tate. On the contrary, it was Mr Tate who initiated action. He did so by making a complaint to the Human Rights and Equal Opportunity Commission. The Disability Discrimination Commissioner attempted conciliation of the complaint, but without success. The Commissioner referred the complaint to the full Commission for inquiry. However, before any inquiry commenced, the Human Rights Legislation Amendment Act (No.1) 1999 took effect. The Commission was deprived of jurisdiction to commence an inquiry; the only available forum became this Court. 30 On 18 May 2000, Mr Tate filed an application in this Court. The matter came before me for directions on 6 July 2000. Mr Tate appeared for himself and Ms M J Haire, solicitor, appeared for both respondents. As it appeared that a number of Wollongong witnesses would be called, I decided to hear the matter in Wollongong on 5 October 2000. 31 At the hearing, Mr Tate again appeared on his own behalf. Ms Fredman represented both respondents. Mr Tate gave oral evidence on his own behalf and called his son to corroborate aspects of his evidence. Ms Fredman called evidence from Mr Rafin, Mr Fox, Mr Wright and two other members of the Committee: Dennis Felgate and Gary Parsons. In the end, there was little dispute about the critical facts.

The statutory provisions 32 Central to the Disability Discrimination Act is the concept of discrimination. The Act covers what might be called "direct discrimination" (in s5) and what is called "indirect discrimination" (in s6). Those sections are as follow: "5(1) For the purposes of this Act, a person ('discriminator') discriminates against another person ('aggrieved person') on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability. (2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability. 6. For the purposes of this Act, a person ('discriminator') discriminates against another person ('aggrieved person') on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply." 33 Part 2 of the Act is headed "Prohibition of Disability Discrimination". Division 1 relates to discrimination in work; it is not presently relevant. Division 2 covers discrimination in other areas. The other areas include discrimination in the provision of goods, services and facilities (s24). Mr Tate relies on this section, contending that the club discriminated against him by refusing to make available to him its training facilities. Section 24 provides: "24(1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or (b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person. (2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available." 34 Mr Tate also relies on s27 of the Act, in particular paras (c) and (d) of s27(2). Those paragraphs read: "(2) It is unlawful for a club or incorporated association, the committee of management of a club or a member of the committee of management of a club or incorporated association to discriminate against a person who is a member of the club or association on the ground of the member's disability or a disability of any of the member's associates: … (c) by denying the member access, or limiting the member's access to any benefit provided by the club or association; or (d) by depriving the member of membership or varying the terms of membership; or …" 35 Section 28 is also relevant. It provides: "(1) It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of the other person's associates by excluding that other person from a sporting activity. (2) In subsection (1), a reference to a sporting activity includes a reference to an administrative or coaching activity in relation to any sport. (3) Subsection (1) does not render unlawful discrimination against a person: (a) if the person is not reasonably capable of performing the actions reasonably required in relation to the sporting activity; or (b) if the persons who participate or are to participate in the sporting activities are selected by a method which is reasonable on the basis of their skills and abilities relevant to the sporting activity and relative to each other; or (c) if a sporting activity is conducted only for persons who have a particular disability and the first-mentioned person does not have that disability." 36 At the outset of the hearing, Ms Fredman indicated that the respondents did not rely on subs (3) of s28. She said the issue, in respect of each of the ways in which Mr Tate put his case, was whether the action taken against him by the committee was based on his disability. In that connection, I note it is sufficient if one of the reasons for an act is the disability of a person. Section 10 of the Act provides: "10. If: (a) an act is done for 2 or more reasons; and (b) one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act); then, for the purposes of this Act, the act is taken to be done for that reason."

The applicant's case 37 At the commencement of the hearing, I asked Mr Tate to identify the act or acts of discrimination of which he complained. In response, Mr Tate indicated that he complained about not being selected on 15 February 1996, to play for the club, and, particularly, his expulsion from the club on 19 February. He said this latter action was taken because of his disability, as was evident from the terms of the letter of 20 February 1996 set out in para 26 above. Mr Tate particularly relied on the fifth paragraph of that letter in which Mr Rafin said the club was previously unaware of the extent of his injuries and he was told "not to partake in any training or playing activities with or associated with the club" and not to use the club's facilities or equipment. Mr Tate said this letter establishes the causal connection between his disability and his expulsion from the club. 38 During the course of the hearing, reference was made to the way in which Mr Tate had behaved during the discussion with Mr Wright and Mr Fox at the training session on 15 February. Under cross-examination, Mr Tate conceded he had "let his emotions get away with him", but he said this was attributable to the post traumatic stress syndrome he suffered as a result of his war service. In his closing submissions, Mr Tate argued that, to the extent that the committee took into account his behaviour in deciding to expel him from the club, the committee discriminated against him because of his psychological disability. Mr Tate pointed out that s4 of the Disability Discrimination Act defines the word "disability" in such a way as to include "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour". The claim of discrimination on the ground of psychological disability had not been foreshadowed before the hearing; but Ms Fredman did not object to Mr Tate advancing that claim. 39 A matter of particular complaint by Mr Tate was the manner in which the committee dealt with his case. He pointed out that the club's constitution contains provisions concerning disciplinary action. Clause 16 is headed "Disciplining of Members". It provides that, where either the President or Secretary is of the opinion that a member has refused, or neglected without reasonable cause, to comply with the rules, has acted in a manner prejudicial to the interests of the club, or has breached a condition of any code of behaviour of the club, the President or Secretary may refer the matter to a Judiciary Committee, being a three-member sub-committee of the Management Committee. The clause goes on to require notice of the nature of, and grounds for, the complaint to be given to the member, and to provide for his attendance at the Judiciary Committee meeting and for him to be able to submit evidence and question the complainant and other witnesses. The clause gives the member a right of appeal, against the decision of the Judiciary Committee, to a five-member Appeals Committee appointed by the Management Committee. 40 In his submissions, Mr Tate made the point that, when Mr Rafin called the Extraordinary Management Committee meeting to deal with Mr Tate's case, Mr Rafin was presumably of the opinion that he (Mr Tate) had acted in a manner prejudicial to the interests of the club; yet Mr Rafin ignored the provisions set out in the club constitution that were designed to deal with such a situation and, instead, dealt with the case in a manner that denied Mr Tate a fair hearing.

The respondents' case 41 Ms Fredman accepted that Mr Tate suffered physical disabilities, but she did not concede the existence of any psychological ailment. She accepted, also, that Mr Tate's physical disabilities did not affect his proficiency as a cricketer. The burden of Ms Fredman's submission was that the club committee did not take action against Mr Tate because of his disability, but because of his behaviour on the Thursday afternoon and the contents of his two subsequent letters. She submitted that Mr Tate's letter to the club contained expressions suggesting he did not wish to have any further association with the club. She said this was consistent with his response, on the Friday evening, to Mr Rafin's invitation to play on Saturday, 17 February. Ms Fredman made the point that Mr Tate was never directed to participate in outfielding training, and he was never deprived of a game because he did not participate in that training. Relying on evidence given by Mr Wright, Ms Fredman submitted that the sole reason for Mr Tate's non-selection on the Thursday night was that the selectors believed he had not yet recovered from his injury. 42 Ms Fredman conceded that the course taken by the Management Committee departed from that prescribed by the club's constitution. However, she rejected the complaint that Mr Tate was not given a right to be heard; her reason being that the committee members had before them Mr Tate's two letters. She also referred to evidence that the reason why Mr Tate was not invited to the meeting was fear of an eruption by him, Mr Rafin's wife and children being in the house at the time of the meeting.

Discussion 43 The evidence in this case reflects little credit on anybody. As he frankly conceded in evidence, Mr Tate behaved badly at the training session on the Thursday afternoon. He had been unfit to play, because of the injury sustained in late January or early February, and had missed some games. He had not notified the selectors of his fitness to play or his availability for the match commencing on 17 February. Therefore, it was not surprising that he was omitted from the team announced on the Thursday night. Mr Tate ought to have appreciated that fact and taken a different approach to Mr Wright. It was not unreasonable for him to seek a game, even at that late stage, if this could be arranged without unfairness to anyone else. However, it was unreasonable for him to approach Mr Wright in an aggressive manner and to take the opportunity of denigrating Mr Wright's conduct of outfielding practices. 44 Mr Fox was in charge of the training session. He had the responsibility to ensure it was conducted in a constructive, harmonious way. Quite properly, he came to investigate what was happening between Mr Tate and Mr Wright. However, instead of attempting to calm down the two men and terminate the altercation, he sided with Mr Wright in a belligerent way that further inflamed the situation. 45 Mr Rafin learned about the incident that same evening. He had conversations about it with both Mr Wright and Mr Fox. But he made no attempt to contact Mr Tate, either in order to mediate the dispute or to obtain Mr Tate's side of the story. Instead, he called a Management Committee meeting for the following Monday night. He did not inform Mr Tate about the meeting, even though he spoke to Mr Tate on the Friday night to invite him to play on the Saturday. 46 The attempt made to justify Mr Tate's exclusion from the meeting, on the basis that he might have so conducted himself as to be a danger to Mr Rafin's wife and children, is absurd. Although there were angry words on the Thursday afternoon, there was no physical violence or threat of physical violence. There had been no previous incident involving Mr Tate. Mr Rafin was apparently sufficiently unconcerned about Mr Tate's disposition, despite the Thursday incident, as to be prepared, after discussion with Mr Wright, to offer Mr Tate the opportunity to play for the club on the Saturday. Mrs Rafin and the children would presumably not have been in the room where the Management Committee meeting was to be held and there would have been a number of men (as in turned out, eight) able to deal with any misbehaviour by Mr Tate. 47 I reject the suggestion that the security of Mrs Rafin and the children was the reason why Mr Tate was not invited to attend the meeting. It is clear that Mr Rafin, possibly supported by others, had made up his mind that Mr Tate should be expelled. He summoned the meeting to implement that decision. Mr Rafin made no attempt, at any stage, to obtain Mr Tate's side of the story; still less to resolve the dispute, and so enable the club to retain the services of a member who had an admirable playing record and had not previously been involved in any unpleasant incident. 48 Mr Rafin was asked why he did not refer the matter to a Judiciary Committee, as the constitution provided. He said he realised the constitution provided for a Judiciary Committee but did not recall its detail. Mr Rafin said "we lost that constitution for a couple of seasons"; but he did not say when the loss occurred or what effort he had made to find the constitution when it was needed in February 1996. 49 Mr Rafin asserted that, at the time of the meeting on the Monday night, he believed from Mr Tate's letter that Mr Tate "obviously no longer wanted to be part of the club". He was not then aware that, since writing the letter, Mr Tate had played the first day of a two day match. Mr Rafin agreed in evidence that his ignorance about that matter is a good example of the advantage that would have been gained by having Mr Tate present at the meeting. 50 In the view I take, the lamentable handling of this matter by the club committee, and Mr Rafin in particular, has little to do with the issues that need to be resolved in this proceeding. They depend entirely on the terms of the Disability Discrimination Act. However, if it is true - as Mr Rafin claimed in evidence - that the contretemps with Mr Tate has been "devastating for the club", he and his fellow committeemen share much of the responsibility for that situation.

The disability claims 51 As I have mentioned, Mr Tate puts his claim on three alternative bases: discrimination on the ground of Mr Tate's disability in refusing to make facilities available to him (s24); discrimination on the ground of Mr Tate's disability in denying him access to the club's facilities and depriving him of membership (s27); and discrimination on the ground of Mr Tate's disability in excluding him from a sporting activity (s28). 52 Ms Fredman argued that Mr Tate's claims under s24 and s28 must fail because the actions of the respondent did not altogether deprive Mr Tate of the opportunity of playing cricket. She said it remained open to him to play cricket with another club; and, indeed, it seems he did subsequently play some games with Albion Park Rail Club. 53 However, it is no answer to a claim of discrimination by refusal of provision of goods, services or facilities to say that the discriminatee is, or may be, able to obtain the goods, services or facilities elsewhere. The Act is concerned to prevent discrimination occurring; that is why it makes the particular discriminatory act unlawful and provides a remedy to the discriminatee. A similar comment may be made about exclusion from a sporting activity. Nothing in either s24 or s28 suggests the existence of a defence along the lines argued by Ms Fredman. 54 The Management Committee made two decisions in relation to Mr Tate. The first decision was to deny him the right "to partake in any training or playing activities with or associated with the club" or to use the club's facilities or equipment. The second decision was to terminate his membership of the club. It seems to me plain that, if either of these decisions was grounded, even in part (see s10 of the Act), on Mr Tate's possession of a disability (within the meaning of the definition in s4), his claim is made out. As membership of the club is apparently a prerequisite to participation in the club's playing and training activities and use of its facilities, discrimination in relation to either decision would bring into play all three sections. 55 It is necessary to consider separately the position in relation to Mr Tate's undoubted physical disabilities and his alleged psychological disabilities. 56 There is no doubt that Mr Tate's physical disabilities fall within the s4 definition. That is common ground, so I need not detail his disabilities. It is also clear that the disabilities prevent him carrying out some activities associated with cricket, particularly outfielding. However, it is equally clear that this has not prevented him playing cricket at grade level, with some distinction, over many years. He avoids the outfielding problem by being a specialist slips-fielder. On the evidence, this has not caused a problem, either to himself or to any team for which he has played. 57 I am satisfied that Mr Tate would not have been able, except at unacceptable risk of injury, to participate in outfielding practice as conducted by Mr Wright on Thursday, 15 February 1996. However, even on Mr Tate's evidence, it is clear he was not asked to do this. Nor was he threatened with loss of selection if he did not participate. Nor did he lose selection for that reason. He was not selected on 15 February because the selectors believed, reasonably and in good faith, that he had not yet recovered from the injury he sustained in January (or early February). 58 That the matter of outfielding practice had nothing to do with what happened to Mr Tate is evident from the fact that he was invited by Mr Rafin on the Friday night to play on the following day, and did in fact play that day. 59 Mr Tate's argument that there was a causal connection between his physical disabilities and his exclusion from playing, and the club, focuses on the terms of the letter of 20 February 1996; particularly the fifth paragraph of that letter. It is worth repeating: "We were unaware of the extent of your injuries. Given your own listed limitations and in particular your comments regarding holding the club (sic and its members) liable for any subsequent injuries or aggravations, we must advise you that you are not to partake in any training or playing activities with or associated with the club and are not to use any of the clubs facilities or equipment (including the practice wicket facilities)." 60 Mr Tate emphasises the opening sentence of this paragraph. It intimates that the information in Mr Tate's letter as to the extent of his injuries was not previously known. It is reasonable to infer that the committee thought the information was important. If it was clear that the committee had decided to move against Mr Tate because of that information, the necessary causal connection would be established. But the second sentence links these injuries to Mr Tate's threat to hold the club, and its members, liable for any subsequent injuries and limitations. For a club to deny access to its facilities because of a threat of legal action would not, of itself, be an act of discrimination covered by the Disability Discrimination Act. Of course, if there is a close connection between the threat and discriminatory conduct, reaction to the threat may itself be an act of discrimination covered by the Act. However, that is not the present case. The respondents never required Mr Tate to undertake the activity, outfielding practice, in relation to which the threat was made. 61 It is possible, by reading the fifth paragraph of the 20 February 1996 letter in isolation from the remainder of the letter, to get from it an impression that, at least, one of the reasons Mr Tate was being denied access to the club's facilities was that he had now disclosed the full extent of his disabilities. However, I do not think such an impression can survive consideration of the remainder of the letter. I have mentioned the threat to hold the club liable for further injuries. More significant, perhaps, are the comments in the following paragraphs of the letter concerning Mr Tate's altercation with Mr Wright and Mr Fox. A critical statement is that contained in the third last paragraph of the letter: "The Committee sees no point in continuing your membership as you obviously harbor [sic] disdain for the club and individuals within." The following paragraph says: "You are therefore advised that … your membership is revoked." 62 I think these concluding paragraphs accurately state the position. Until the incident of Thursday, 15 February, notwithstanding his physical disabilities, Mr Tate had been allowed fully to participate in club activities, including both training and playing in matches. Moreover, Mr Rafin commenced action against Mr Tate, by summoning the special meeting of the Management Committee, before he received Mr Tate's letter of 15 February, with its disclosure of the full extent of Mr Tate's disabilities. 63 The evidence clearly establishes that Mr Tate's exclusion from participation, and from the club itself, stemmed, not from the existence of his disabilities, but from the committee's reaction to the events of the Thursday and the contents of his letters. It matters not that I feel the committee over-reacted, and generally handled the matter badly. The critical question is whether there was a causal connection between Mr Tate's physical injuries and his exclusion. That question must be answered in the negative. 64 Psychological disabilities may constitute a "disability" within the meaning of the Disability Discrimination Act. There is reference, in a medical report placed before the Court, to Mr Tate suffering "past and present and continuing social and psychological stresses directly attributable to his deformities and disabilities". There is no medical evidence that those stresses amounted to "a disorder, illness or disease" that "affects (Mr Tate's) thought processes, perceptions of reality, emotions or judgment", so as to fall within para (g) of the statutory definition. But Mr Tate indicated his opinion that his stresses did have that effect and I will work on the basis that, in February 1996, he was suffering psychological effects of his physical disabilities, that themselves fell within the definition of "disability". Mr Tate said he thought his psychological condition affected his behaviour on the Thursday night. I do not have difficulty in accepting that evidence. I found Mr Tate a pleasant and courteous person. It was difficult to think the person I saw in Court would be capable of behaving as aggressively and abusively as he admits to have done on the Thursday evening. I can only put this down to the influence of stress stemming from his Vietnam experiences and the physical disabilities he has sustained. So it is possible to say there is a causal connection between the behaviour which caused his exclusion from the club and his psychological disability. 65 However, there is no evidence that any member of the committee realised that Mr Tate had a psychological disability. Mr Rafin said he was unaware of this. The other committee members who gave evidence were not asked about it. Mr Tate does not claim to have disclosed to the club that he suffered any psychological disability. That being so, it seems impossible to say the club discriminated against Mr Tate on the ground of his psychological disability. 66 The matter must be tested against the definitions of "discrimination" in ss5 and 6 of the Act. Under s5 one must ask: did the club treat Mr Tate less favourably, because of his psychological disability, than it would have treated another person who was in the same situation but did not suffer any psychological disability? 67 This question must be answered in the negative. The psychological disability may have caused Mr Tate to behave differently than if he had not had a psychological disability, or differently to the way another person would have behaved. But the disability did not cause the club to treat him differently than it would otherwise have done; that is, than it would have treated another person who did not have a psychological disability but who had behaved in the same way. It could not have done, if the club was unaware of the disability. 68 It may be said, in answer to this: "yes, but a person without a psychological disability would not have behaved in this way, so effectively Mr Tate was excluded from the club and its facilities because of his psychological disability". I accept that may be true, but I do not think that circumstance would bring the case within the purview of the Disability Discrimination Act. The focus of that legislation is on the conduct of the alleged discriminator; not the effect on the alleged discriminatee. 69 The question under s6 of the Act is whether the club unreasonably required Mr Tate to comply with a requirement or condition with which a substantially higher proportion of persons without the disability comply or are able to comply, but Mr Tate was not. If Mr Tate had been excluded from playing because of his unwillingness to engage in outfielding practice, the case would have fallen within s6. But that is not what happened. The club did not require compliance with any requirement or condition. Section 6 does not apply. 70 Critical as I am of the conduct of the club towards Mr Tate, I am of the opinion that it did not amount to discrimination on the ground of disability, within the meaning of the Disability Discrimination Act. The application must be dismissed. 71 The Court has power to award costs in proceedings under the Disability Discrimination Act. Generally speaking, it may be expected an order will be made in favour of the successful party. However, in the present case, I do not think it appropriate to make an order for costs. Although I have determined the proceeding must be dismissed, the respondents bear substantial responsibility for the fact that it was commenced in the first place; generally, because of the way they handled the situation that arose at the training session and, more particularly, because of the misleading impression conveyed by the fifth paragraph of the letter of 20 February 1996. There will be no order for costs. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate: Dated: 8 November 2000 The Applicant appeared in person

Solicitor for the Respondent: Ms J Fredman (Ebsworth & Ebsworth)