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[2013] NSWADT 295
procedural. The respondent's application for summary dismissal of the sex discrimination complaints is refused; the applicant's application for costs is refused.
A woman golfer complained that her club's men's Saturday competition gave better prizes than the women's. The club tried to strike out the claim early, arguing that the anti-discrimination law only covered membership categories and that the single-sex sport exemption let them run competitions any way they liked. The Tribunal ruled that the law covers unequal prizes as a 'benefit' or 'detriment' under the registered-club rules, and that the sport exemption only lets clubs keep men and women out of each other's events; it does not let them offer unequal rewards once people are competing. The strike-out failed and the case will go to a full hearing. Costs were also refused.
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Susan Walker, a member of Wakehurst Golf Club Ltd, lodged complaints in the Equal Opportunity Division of the Administrative Decisions Tribunal alleging sex discrimination and victimisation contrary to the Anti-Discrimination Act 1977 (AD Act). The conduct complained of was the club's practice of conducting separate men's and women's golf competitions on Saturdays where the men's event offered superior prizes and awards. Walker did not object to the existence of separate competitions; her grievance was that they were not comparable in the benefits provided.
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The club applied under s 102 and s 92(1)(a)(i) and (ii) of the AD Act for summary dismissal of the sex discrimination complaints (but not the victimisation complaint) before any final hearing. It advanced two arguments. First, s 34A(2), which prohibits discrimination by a registered club against a member on the ground of sex by denying or limiting access to any benefit or subjecting the member to any other detriment, was said to be confined to entitlements of membership categories and did not extend to "the playing of a game of golf". Second, the entire complaint was said to fall within the exemption in s 38, which provides that nothing in Part 3 renders unlawful the exclusion of persons of one sex from participation in any sporting activity (other than coaching, administration or prescribed activities).
The Tribunal, constituted by Magistrate N Hennessy as Deputy President, heard the interlocutory application on 10 December 2013 and delivered judgment on 20 December 2013. It refused the club's summary dismissal application on both bases and also refused Walker's cross-application for costs. The reasons traverse the text of ss 33, 34A and 38, the principles governing summary dismissal, the permissible use of extrinsic materials under s 34 of the Interpretation Act 1987, and the ordinary meanings of the key statutory terms.
The Tribunal began by recalling that the power of summary dismissal must be exercised with extreme caution and that the applicant's case must be taken at its highest (citing Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 at [41]-[42] and Margan v University of Technology, Sydney [2003] NSWADTAP 65). A complaint should not be dismissed unless it is manifestly groundless or so obviously untenable that it cannot possibly succeed.
On the first basis, the Tribunal held that the ordinary meaning of s 34A(2) is clear. The provision is not limited to categories of membership. It expressly prohibits denying or limiting access to "any benefit" provided by the club and subjecting a member to "any other detriment". Access to golfing competitions and to the prizes and awards offered in those competitions falls within the concept of a benefit. The Tribunal noted that s 34A(4) itself contemplates situations in which separate benefits are provided to men and women and sets out criteria (including the purposes of the club, the nature of the benefits, and opportunities for use and enjoyment by each sex) for determining whether the discrimination is lawful. Because the language is clear, extrinsic materials (the Premier's second reading speech and the accompanying Guide) could only be used to confirm that ordinary meaning. Those materials did not suggest that prizes and awards were excluded; on the contrary, the Guide's reference to allocating a "fair and reasonable proportion" of use and enjoyment supported the view that equity in competitions could be required.
On the second basis, the Tribunal examined the three critical terms in s 38: "sporting activity", "participation in" and "exclusion". Golf is unquestionably a sporting activity and competition golf involves participation. The Macquarie Dictionary definitions of "participation" (taking part) and "exclusion" (to shut or keep out, to prevent entrance or expel) were adopted. The exemption therefore authorises a club to exclude men from the women's competition and women from the men's competition. It does not, however, constitute a blanket licence to discriminate in the benefits or terms on which those competitions are conducted. Walker had not been excluded from any sporting activity; she had been permitted to participate in the women's competition but alleged she received inferior benefits. The Tribunal contrasted s 38 with the more elaborately worded race discrimination sporting exemption in s 22 and observed that later, attribute-specific sporting exemptions had been added, suggesting the original s 38 should not be read expansively. The interpretation adopted was also said to better promote the objects of the AD Act.
Because the complaints were not "so manifestly faulty that [they do] not admit of argument", the application for summary dismissal was refused. The costs application was refused because it is legitimate for a respondent to test whether a complaint discloses a contravention of the Act once points of claim and evidence are filed.
Prior to this decision the scope of s 34A(2) had not been authoritatively determined in the context of sporting prizes. The 1981 amendments that introduced the registered-club provisions had been accompanied by a second reading speech and Guide indicating that the amendments were not intended to prevent single-sex sporting activities or competitions. The Tribunal treated those materials as confirmatory only because the statutory text was clear. The decision therefore confirms that "benefit" in s 34A(2) is not confined to voting rights or board eligibility but extends to the tangible advantages a club offers its members through competitions.
Section 38 had been in the AD Act since its original enactment. The Tribunal's construction—that the exemption is limited to the fact of exclusion from the opposite sex's event and does not immunise differential treatment in prizes or other benefits—narrowed the practical breadth of the exemption. The decision aligns s 38 with the principle that exemptions should be construed consistently with the Act's remedial objects and should not be given a "blanket" operation. The ruling that s 38 does not override the goods-and-services provision in s 33 when the complaint concerns the terms on which a service is provided further clarified the interrelationship of the Part 3 prohibitions.
After the decision, clubs could no longer assume that any differential treatment linked to a single-sex competition would automatically be exempt. They must now consider whether the differential can be justified under the specific criteria in s 34A(4) or whether it amounts to unlawful discrimination in the provision of benefits or services.
Paragraph [14] contains the key holding on s 34A: "There is no basis for concluding that a benefit or detriment cannot relate to the type and level of prizes or awards available when participating in sporting activities." In plain English, the Tribunal is saying that once you accept that a club runs golf competitions, the prizes it hands out count as a "benefit" under the anti-discrimination law. You cannot hide behind the idea that the law only cares about who gets to vote or sit on the board.
Paragraph [23] is the central interpretation of s 38: "It is not a blanket exemption that allows the Club to discriminate against members of one sex in relation to the benefits or services it provides such as the scheduling, hosting or running of golf games. It merely allows the Club to exclude members of one sex from participating in the single sex sporting competition of the other sex." Translation: the exemption lets the club say "this Saturday morning event is men-only" or "this one is women-only". It does not let the club say "because it's a men-only event we can give the men much better trophies than we give the women in their event".
Paragraph [16] links the two provisions: "One of the benefits provided by the Club is access to golfing competitions and to the prizes awarded in those competitions. For that reason I do not accept the Club's submission that the way the Club organises its golf competitions is solely a matter for the Club." Plain English: running competitions with prizes is not an unregulated private matter; it is part of what the club offers its members and therefore regulated by the anti-discrimination rules.
Paragraph [7] restates the summary dismissal test: "The Tribunal must take the applicant's case at its highest and determine whether, on the basis of that evidence, he or she could possibly substantiate the complaint." This is the practical threshold that saved Walker's complaints from early dismissal.
This decision will be triggered whenever a member of a registered club complains that a single-sex sporting competition provides materially inferior prizes, trophies, grading systems, sponsorship, or other benefits to one sex compared with the other. The precedent applies to both the registered-club head of discrimination (s 34A) and the goods-and-services head (s 33) because the Tribunal held that s 38 does not exempt either.
The fact pattern requires (1) a registered club, (2) separate competitions for men and women, (3) a material disparity in the benefits or prizes offered, and (4) a complaint framed as denial of a benefit, limitation of access to a benefit, or subjection to a detriment. The precedent does not apply if the complaint is simply that separate competitions exist; the Tribunal expressly accepted that s 38 permits that. It also does not apply if the complainant has been wholly excluded from participating in any competition.
The reasoning extends beyond golf. Any club sport or activity that offers tangible benefits (prize money, ranking points, sponsorship, equipment, publicity) could engage the same analysis. The s 34A(4) criteria—purposes of the club, nature of the benefits, opportunities for use and enjoyment—must then be weighed. The decision is most likely to be engaged where the men's and women's fields are of comparable size and standard yet the rewards are markedly unequal.
The judgment itself follows Fricke and Margan on the summary dismissal test and cites Tullamore Bowling & Citizens Club v Lander for the uncontroversial proposition that distinct competitions do not of themselves constitute discrimination. It treats the second reading speech and Guide consistently with Re Australian Federation of Construction Contractors; Ex parte Billing, using them only to confirm clear ordinary meaning.
Because this is an interlocutory decision of the Administrative Decisions Tribunal, its precedential weight is persuasive rather than binding. The careful textual analysis of ss 34A and 38, the insistence on taking the complaint at its highest, and the narrow reading of the s 38 exemption have been cited in subsequent Equal Opportunity Division matters concerning the limits of sporting exemptions. The proposition that "benefit" in s 34A(2) includes competition prizes has been treated as settled law within the Tribunal. Later decisions have not expanded the exemption to cover differential prize structures once participation is permitted, thereby preserving the ratio that s 38 is about exclusion from the event, not about the quality of the event once admitted.
The decision leaves open exactly how the s 34A(4) criteria are to be weighed when a club argues that separate but non-equivalent benefits are justified by the "purposes for which the registered club is established" or by "any other relevant circumstance". The Tribunal did not need to reach that balancing exercise because the matter was only at the summary dismissal stage.
It also leaves open the position where the disparity in prizes is said to reflect objectively different levels of performance, participation rates or sponsorship attracted by each field. The judgment does not prescribe a test for when prizes will be regarded as "comparable" or "equivalent".
The interaction between s 38 and victimisation complaints was expressly not before the Tribunal and remains unaddressed. Nor does the decision deal with the position of non-member visitors or with coaching and administrative activities expressly excluded from s 38.
Finally, the precise boundary between "participation in" a sporting activity and the "terms on which" that activity is provided may require further elucidation in a case where the discrimination is said to affect the rules of play themselves rather than collateral benefits such as prize value. The Tribunal's distinction between exclusion and differential benefits supplies the framework, but its application to more subtle differences remains for future cases.
Introduction 1Ms Walker, who is a member of Wakehurst Golf Club Ltd, complained that the Club had discriminated against her on the ground of sex and victimised her in breach of the Anti-Discrimination Act 1977 (AD Act). The Club has applied to the Tribunal for Ms Walker's complaints of sex discrimination (but not the complaint of victimisation) to be summarily dismissed prior to hearing. The basis for the Club's application is that the direct discrimination complaints are misconceived, lacking in substance or fail to disclose a contravention of the AD Act: AD Act, s 102 and s 92(1)(a)(i) and (ii). 2The Club makes its application on two bases. The first is that Ms Walker's complaint under s 34A(2), relating to discrimination on the ground of sex by a registered club, cannot be substantiated because that section relates to entitlements of members of the club and does not "cover the playing of a game of golf". The second basis is that Ms Walker's complaint comes within the exemption in s 38 which allows a club to exclude men or women from participation in any single sex sporting activity.
Background 3The Club hosts separate women's and men's golfing competitions on Saturdays. Ms Walker is not complaining about the fact that there are separate competitions for men and women. Her complaint is that the competitions are not comparable. In particular the men's competition offers certain prizes and awards that are not offered in the women's competition. 4Ms Walker brings her complaints of sex discrimination under both the registered clubs provision (s 34A) and the 'goods and services' provision (s 33). Her goods and services complaint is that the Club breached s 33(1)(a) and (b) of the AD Act by refusing to provide her with the service of "scheduling, hosting and running gendered golf competitions on the weekend" or by providing that service on certain unfavourable terms. Section 33 states that: 33 Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex: (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) Where a skill is commonly exercised in a different way in relation to men and women, a person does not contravene subsection (1) by exercising the skill in relation to men only, or women only, in accordance with the person's normal practice. 5The second complaint under the registered clubs provision is that the Club breached s 34A(2)(a), (b) and (c) of the AD Act. 34A Registered clubs (2) It is unlawful for a registered club to discriminate against a person who is a member of a registered club on the ground of sex: (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. 6The exception in s 38 applies to the whole of Part 3 of the AD Act relating to sex discrimination, including sections 33 and s 34A. 38 Sport Nothing in this Part renders unlawful the exclusion of persons of the one sex from participation in any sporting activity not being the coaching of persons engaged in any sporting activity, the administration of any sporting activity or any prescribed sporting activity.
Principles of summary dismissal
7The discretion to summarily dismiss a complaint is to be exercised with extreme caution: Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 (29 June 2004) at [41] and [42]. The Tribunal must take the applicant's case at its highest and determine whether, on the basis of that evidence, he or she could possibly substantiate the complaint.
8In Margan v University of Technology, Sydney [2003] NSWADTAP 65 the Appeal Panel set out the scope of the summary dismissal power in relation to s 111, the former summary dismissal provision of the AD Act. A [10] the Appeal Panel discussed set out the law where it is submitted that the complaint does not disclose a contravention of the AD Act because, for example, of the operation of an exemption:
10 The failure of the complaint to disclose a contravention of the Act is analogous to the inherent and/or statutory power of courts to dismiss proceedings when the pleadings fail to show a reasonable cause of action. For example, Part 13, rule 5 of the Supreme Court Rules 1970 allows the Court to stay or dismiss proceedings where no reasonable cause of action is disclosed. The rule gives the Court a discretionary power to dismiss the plaintiff's case when it is so weak that to permit the proceedings to go to trial would be futile: Peter Kent Developments Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported). Ritchie's Supreme Court Procedure NSW (Peter Taylor SC ed, Butterworths 1984) notes at 2325 that "The test to be applied has variously been described as whether the matter is so obviously untenable that it cannot possibly succeed', manifestly groundless', so manifestly faulty that it does not admit of argument', one which the court is satisfied cannot succeed', one where under no possibility can there be a good cause of action'", or one which `would involve useless expense' (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Pannizutti v Trask (1987) 10 NSWLR 531 at 536; Rajski v Powell (1987) 11 NSWLR 522 at 524; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942.
Complaint under s 34A - registered clubs 9The Club's first submission is that s 34A(2) does not cover the playing of the game of golf. The sole focus of that provision is on categories of membership. According to the respondent, the way the Club organises its competitions is a matter for the Club. As long as the capacity to vote and run for the board is gender neutral, then the AD Act has no application. 10On 1 June 1981, the AD Act was amended to make certain conduct by registered clubs unlawful. When introducing the amendments the then Premier, Mr Wran QC, discussed the effect of the amendments on rules about membership of clubs and access to facilities. He went on to say that the amendments do not affect games like golf and bowls being played according to different rules for men and women. The then Premier then tabled a Guide to the amendments. While the Guide has no legislative status it is a type of 'extrinsic material' under s 34(2)(e) of the Interpretation Act 1987 (Interpretation Act) and can be taken into account in certain circumstances. 11The Guide states, in part, that the amendments, "will not affect sporting activities or competitions organized for persons of the one sex." The Guide goes on to state, in relation to golf clubs, that ". . . if full members of both sexes desired to take part in weekend play then the club would have to allocate a fair and reasonable period of time for full members of both sexes to use the course." 12Ms Ronalds SC submitted that the use of extrinsic material, such as Second Reading Speeches and the Guide is warranted in this case. Ms Raper, representing Ms Walker, disagreed. 13Section 34 of the Interpretation Act governs the use of extrinsic material. Where the provision under consideration is clear, extrinsic material may only be used to confirm the ordinary meaning: Pearce DC & Geddes RS, Statutory Interpretation in Australia (7th ed) at [3.17] and Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 at 420. 14The ordinary meaning is clear in this case. Section 34A applies to members and those who wish to be members of registered clubs. It is a broad provision which makes certain conduct unlawful including by denying the person access, or limiting the person's access, to any benefit provided by the registered club and subjecting a member to "any other detriment". There is no basis for concluding that a benefit or detriment cannot relate to the type and level of prizes or awards available when participating in sporting activities. Indeed, s 34A(4) addresses the situation separate benefits are provided to men and women: (4) Nothing in subsection (1) (paragraph (a) excepted) or subsection (2) renders unlawful discrimination by a registered club against a person on the ground of sex if the discrimination occurs in relation to the use or enjoyment of any benefit provided by the registered club where: (a) it is not practicable for the benefit to be used or enjoyed: (i) simultaneously, or (ii) to the same extent, by both men and women, and (b) either: (i) the same, or an equivalent, benefit is provided for the use of men and women separately from each other, or (ii) men and women are each entitled to a fair and reasonable proportion of the use and enjoyment of the benefit. (5) In determining any matter relating to the application of subsection (4), regard shall be had to: (a) the purposes for which the registered club is established, (b) the membership of the registered club, including any class or type of membership, (c) the nature of the benefits provided by the registered club, (d) the opportunities for the use and enjoyment of those benefits by men and women, and (e) any other relevant circumstance. 15In any case, the extrinsic material does not suggest otherwise. The Guide says that the amendments, "will not affect sporting activities or competitions organized for persons of the one sex." A club is obliged to "allocate a fair and reasonable period of time for full members of both sexes to use the course." It follows from that comment that s 34A does not exclude the Club being equitable in terms of prizes and awards for competitions for both men and women. 16Contrary to the Club's submission, s 34A does not relate exclusively to categories of membership. It also includes denying or limiting a person's access to any benefit provided by the Club and subjecting a member to "any other detriment". One of the benefits provided by the Club is access to golfing competitions and to the prizes awarded in those competitions. For that reason I do not accept the Club's submission that the way the Club organises its golf competitions is solely a matter for the Club. The Club's application to summarily dismiss Ms Walker's complaint on the basis that it does not come within the terms of s 34A is refused.
Exemption in s 38 17The second basis on which the respondent applied for the complaints of sex discrimination to be dismissed was that s 38 provides an exemption in relation to Ms Walker's complaints under both s 33 and s 34A. 18The three critical terms in s 38 are "sporting activity", "participation in" and "exclusion". There is no dispute that golf is a sporting activity and that many golfing competitions include the awarding of medals and prizes. 19Participation is defined in the Macquarie Dictionary, 6th edition at p 1217 relevantly as: The act of fact of participating, a taking part, as in some action or attempt. 20The phrase "participation in any sporting activity" in this case means the participation in a gendered golf competition. The Club accepts that when playing competition golf on a Saturday, Ms Walker is 'participating in' a sporting activity. 21The third term is "exclusion" which is defined in the Macquarie Dictionary relevantly as: To shut or keep out; prevent the entrance of; to shut out from consideration, privilege, etc; to expel and keep out; thrust out; eject. 22Both parties agree that s 38 authorises separate sporting competitions for men and women. As Samuels JA stated in Tullamore Bowling & Citizens Club v Lander [1984] 2 NSWLR 32 at 39, ". . . the existence of distinct competitions at any level of organization does not represent a discriminatory practice." 23For the exemption in s 38 to apply, the discrimination must involve the exclusion of men or women from participation in any sporting activity. The exemption can only apply to the exclusion from a sporting activity which the other sex only is participating in. It is not a blanket exemption that allows the Club to discriminate against members of one sex in relation to the benefits or services it provides such as the scheduling, hosting or running of golf games. It merely allows the Club to exclude members of one sex from participating in the single sex sporting competition of the other sex. 24The ordinary meaning of s 38 is consistent with the principle of statutory construction that the interpretation of a provision must promote the purpose or object underlying the Act: Interpretation Act, s 33. Section 38 was in the AD Act as originally enacted. Since then, other sporting exemptions have been added in relation to other grounds of discrimination such as race, transgender and disability. Each exemption is tailored to the particular attribute concerned. That fact suggests that the Club's broad interpretation of s 38 is not correct. 25Ms Raper, representing Ms Walker, submitted that s 38 merely allows the Club to have separate golfing competitions for men and women. If the exemption was intended to be wider than that, the legislature would have framed the exemption more broadly. For example, s 22, which is the sporting exception for race discrimination, states that: Nothing in this Part applies to or in respect of anything done on the grounds of a person's nationality or place of birth or length of time for which the person has been resident in a particular place or area: (a) in selecting one or more persons to represent a place or an area in any sport or game, or (b) in pursuance of the rules of any competition in so far as they relate to eligibility to compete in any sport or game. 26Ms Walker has not been excluded from participating in any sporting activity. Her complaint is that she has not been given equal or comparable access to the competition or to the benefits associated with the competition. The Club's application to summarily dismiss Ms Walker's complaint on the basis that the Club's conduct comes within s 38 of the AD Act is refused.
Costs 27Ms Raper applied for costs because the applicability of s 38 should have been determined at the hearing, not by way of an interlocutory strike out application. If that had been done, significant costs would have been saved. 28The general rule is that each party pays their own costs: Administrative Decisions Tribunal Act 1997, s 88(1). The Tribunal may make an award of costs only if it is satisfied that it is fair to do so having regard to certain matters listed in s 88(1A) including any matter that it considers relevant. 29I am not satisfied that it is fair to award costs in this case. It is appropriate for a respondent to apply for summary dismissal after the applicant's Points of Claim and evidence have been filed in cases where the respondent is submitting that a complaint does not disclose a contravention of the AD Act: Margan supra at [15].
Orders
Walker
Wakehurst Golf Club Ltd
(1986) 68 ALR 416
(1964) 112 CLR 125
(1987) 10 NSWLR 531
(1987) 11 NSWLR 522
The respondent's application for summary dismissal of the sex discrimination complaints is refused; the applicant's application for costs is refused.