Tyler v Cabra Vale Ex-Active Servicemen's Club Limited [2025] NSWCATAD 288;

1. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
2. Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
3. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.
4. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
5. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] ("Ekermawi"). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].
6. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.
7. The applicant's evidence must be taken at its highest, that is, everything the applicant has put in evidence is accepted as true and then the Tribunal determines whether she could possibly succeed in her complaint of racial discrimination (Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]).

1. Section 4 of the Act defines disability to mean:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

1. In addition, the Act defines disability to include past, future and presumed disability:

49A Disability includes past, future and presumed disability

A reference in this Part to a person's disability is a reference to a disability -

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

1. Section 49B of the Act explains what constitutes discrimination on the ground of disability:

1. A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator -

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

...

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

1. Section 49M makes disability discrimination in the provision of goods and services unlawful:

"49M Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability -

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services."

1. To substantiate a complaint of disability discrimination in the provision of goods and services, the applicant would need to establish that the respondent provides services, and that they were discriminated against (as defined by s 49B) in a manner which was unlawful under s49M. The conduct which is unlawful under s 49M is limited to either:

(1) refusing to provide the services, or

(2) in the terms on which the services are provided.

1. The manner in which the services are provided is not grounds for unlawful discrimination. The "terms on which the services are provided" are the conditions on which the service is or will be performed; they are not part of the manner of actual performance (Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30]). Section 49M does not allow a complaint of discrimination to be brought in relation to the manner in which goods or services are provided.
2. Section 49O concerns the provision of membership or benefits provided by registered clubs, such as the Respondent. Relevantly, disability discrimination in the particular context of registered club membership is unlawful:

49O Registered clubs

...

(2) It is unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of disability--

(a) by denying the person access, or limiting the person's access, to any benefit provided by the registered club, or

(b) by depriving the person of membership or varying the terms of the person's membership, or

(c) by subjecting the person to any other detriment.

(3) Nothing in subsection (1) or (2) applies to or in respect of a registered club if the principal object of the registered club is to provide benefits only for persons who have a particular disability specified in the principal object.

(4) In determining whether the principal object of a registered club is as referred to in subsection (3), regard is to be had to--

(a) the essential character of the registered club, and

(b) the extent to which the affairs of the registered club are so conducted that the persons primarily enjoying the benefits of membership are persons who have the particular disability specified in the principal object, and

(c) any other relevant circumstance.

(5) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the registered club.

1. Section 7 of the Act makes it unlawful to discriminate against a person on the grounds of race. It provides that:

7 What constitutes discrimination on the ground of race

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator -

(a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

...

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

1. In relation to racial discrimination in the provision of goods and services, s 19 of the Act provides that:

19 Provision of goods and services

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race -

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

1. Section 20A concerns race discrimination in the provision of membership or benefits provided by registered clubs. Relevantly:

20A Registered clubs

...

(2) It is unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of race--

(a) by denying the person access, or limiting the person's access, to any benefit provided by the registered club,

(b) by depriving the person of membership or varying the terms of the person's membership, or

(c) by subjecting the person to any other detriment.

(3) Nothing in subsection (1) or (2) applies to or in respect of a registered club if the principal object of the registered club is to provide benefits for persons of a specified race defined otherwise than by reference to--

(a) colour, or

(b) a description which has the effect of excluding persons of that race who are of a different colour from those persons, or the majority of those persons, who do not come within that description.

(4) In determining whether the principal object of a registered club is as referred to in subsection (3), regard shall be had to--

(a) the essential character of the registered club,

(b) the extent to which the affairs of the registered club are so conducted that the persons primarily enjoying the benefits of membership are of the race specified in the principal object, and

(c) any other relevant circumstance.

1. In order to establish a claim of unlawful disability or race discrimination, the applicant needs to establish that at least one of the reasons he was treated less favourably than others in the same or similar position (sometimes referred to as "differential treatment") was "on the grounds of" his disability or race (sometimes referred to as "the causation question").
2. The words "on the grounds of" have been paraphrased as "because of", "due to," or "a real" reason, a "genuine" reason or "true" reason for the treatment alleged to have been discriminatory: see Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
3. The applicant bears the onus of proof that he was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to his race or his disability: see Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56].
4. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered: see Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [59]‑[65]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].
5. It is not the case that because a person is of a particular race or has a disability, and experiences something he or she perceives as "adverse" to him/herself, that the conduct is discriminatory simply because the person is of that race or has a disability. The person needs to prove on the civil standard that the conduct impugned occurred "on the ground of", "due to" or "because of" the protected attribute of the person, or that was one of the reasons for the conduct. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned is his race or his disability.

1. It was unclear what race the Applicant identified as being the subject of the alleged racially discriminatory conduct. At hearing the Applicant referred to the conduct as being against "white guys", and in his complaint he claimed it was because he was Jewish and this was known to club members, because he told them this frequently. When this discrepancy was identified to the Applicant, he claimed these two racial identities were "the same thing".
2. On the basis of the evidence before the Tribunal, being the President's Summary of Complaint and a submission made by the Respondent dated 2 September 2025, and the Applicant's oral evidence at hearing, there is no direct evidence that the Applicant was treated less favourably on the grounds of his race. The Applicant accepted this during the hearing, stating that "I can't speak for [the Duty Manager's] state of mind, but that's the way I took it. The way I took it was on a racial basis".
3. Without direct evidence, an inference would need to be drawn by the Tribunal that the Respondent's conduct was because of the Applicant's race (howsoever described). Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence (Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).
4. The more probably and innocent explanation available to the Tribunal on the evidence is that the Applicant was escorted from the premises and his membership suspended, and then terminated, because of the Applicant's conduct towards other members and the Respondent's staff, and the documented WHS risk this posed for the Respondent.
5. On the evidence before the Tribunal, taken at its highest, I therefore cannot infer that the Respondent's conduct towards the Applicant was causally connected to his race. That part of the Applicant's complaint is therefore found to be lacking in substance.
6. With respect to the Applicant's complaint about the conduct of the bowling club members towards him, allegedly making insulting remarks towards him about his disability, the Applicant stated that the only evidence which could be provided to the Tribunal was his recollection of the event. He considered it was not likely that any supporting or corroborative evidence from other club members or staff could be obtained.
7. Even if I accepted the Applicant's evidence of this incident as he claims it occurred, taken at its highest, it does not disclose disability discrimination on the part of the Respondent. The bowling club members are unnamed and unidentified by the Applicant. It is highly unlikely that the Applicant would be able to demonstrate that those individuals represented the Respondent as agents when they allegedly made those comments to him, for the purposes of s 53 of the Act. There is no suggestion that the individuals who made the comments to the Applicant were employees of the Respondent.
8. For those reasons, that part of the Applicant's complaint relating to disability discrimination would also not be able to be substantiated.
9. In deciding whether it is "fair and just" to grant or to refuse leave, I take into account that the Tribunal's discretion must be exercised having regard to the purpose of the legislative scheme established by the Act. I am also guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme.
10. I take into account the Applicant's evidence that he had been a member of the club for 40 years and never had any significant issues or arguments previously, and his belief that the Respondent's management had only recently started having an issue with him. I understand that he felt targeted and harassed by the Respondent's employees' conduct towards him in recent months and his distress at being excluded from a venue in which he previously felt comfortable. However, on the basis of the Applicant's evidence I do not consider that he would be successful in his claims against the Respondent on the basis of allegations of discrimination on the grounds of race or disability. It is highly unlikely that the Applicant's complaints could be substantiated.
11. In all the circumstances, I consider it would not be fair and just to grant leave for the Applicant's complaints of race discrimination and disability discrimination, in the provision of goods and services and in the context of registered club membership, to continue.
12. Leave is therefore refused for the Applicant's complaint of race discrimination in the provision of goods and services, and registered clubs (ss 7, 19, 20A) and disability discrimination in the provision of goods and services and registered clubs (ss 49B, 49M, 49O).

(1) Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the Applicant's complaint against the Respondent to proceed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.