Walker v Cormack & Anor [2010] FMCA 9 (27 January 2010)

Last Updated: 29 January 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALKER v CORMACK & ANOR

[2010] FMCA 9

HUMAN RIGHTS – Sex discrimination – male excluded from gymnasium class – female only class – special measure to redress substantive inequality – victimisation – membership of gymnasium cancelled.

Human Rights and Equal Opportunity Commission Act 1986, s.46PH(1) Sex Discrimination Act 1984, ss.5, 7D, 22, 86, 105 and 94 Sex Discrimination Amendment Bill 1995

Jacomb v The Australian Municipal, Administrative, Clerical and Services Union [2004] FCA 1250

Applicant:

PHILIP WALKER

First respondent:

GEORGE CORMACK

Second respondent:

U2 FITNESS CENTRE

File Number:

MLG 1183 of 2008

Judgment of:

O’Dwyer FM

Hearing dates:

24 April 2009 & 28 August 2009

Date of Last Submission:

28 August 2009

Delivered at:

Melbourne

Delivered on:

27 January 2010

REPRESENTATION

The Applicant:

In person

Solicitor as Counsel for the Respondents:

Mr Reid on 24 April 2009 Mr French on 28 August 2009

Solicitors for the Respondent:

Coulter Roache

ORDERS THAT:

(1) The application filed on 26 September 2008 is dismissed.
(2) The applicant pay the respondents’ costs, which costs include witness expenses of $15 for Ms Karen Knight, and $200 for Mr Justin Evans.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1183 of 2008

PHILIP WALKER

Applicant

And

GEORGE CORMACK

First Respondent

U2 FITNESS CENTRE

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant alleges the respondents breached the provisions of the Sex Discrimination Act 1984 (the Act) when they:
   • changed a long-running mixed-sex class at the respondents’ gymnasium to a female-only class and excluded him (ss 5, 22 and 105 of the Act); and
   • terminated his membership of the gymnasium (ss 94 and 105 of the Act).
2. The application comes to this court after his complaint to the Human Rights and Equal Opportunity Commission was terminated, pursuant to section 46PH(1) of the Human Rights and Equal Opportunity Commission Act 1986, on the basis that there was no reasonable prospect of the complaint being settled by conciliation.
3. The applicant’s complaints fall under two heads; namely, unlawful discrimination based on sex, and victimisation.
4. The application names two respondents, the first being Mr George Cormack, and the second being the business name by which the gymnasium is known, U2 Fitness Centre. The sole proprietor of the business name is Mr George Cormack, and nothing is gained from having named the business name as a respondent. Accordingly, reference hereafter is made only to Mr Cormack as being the only properly named respondent.
5. The remedies sought by the applicant on a successful prosecution of his application are:
   • a letter of apology to be sent out to all members of the gymnasium;
   • a letter of apology to be sent to him;
   • reinstatement of his membership to the gymnasium, and a guaranteed membership for three years at generally applying fees for such membership; and
   • $20,238 compensation, being the calculated loss to the applicant arising from travel to a more distant gymnasium that was forced upon him by the alleged unlawful conduct of the respondent.

The Facts

6. Hereafter, a statement of facts is to be taken as a finding of fact unless the context suggests otherwise.
7. The applicant had, for a period of 18 months, enjoyed the routine of attending two classes per week at the gymnasium conducted by the respondent. They were the Monday evening class and the Tuesday morning class.
8. The Tuesday morning class was said to be convenient, relative to other classes of the same nature held on different days at different times, because it suited the applicant in respect of his commitment to drive his children to school. It was never explained, however, to my satisfaction, why Tuesday was so important in this regard, and I am not satisfied that the significance placed on the availability of the Tuesday morning class by the applicant was justified, particularly as he is a
   self-employed man whose hours of work provide him flexibility in respect of his times. Of course, it suits the applicant to emphasise what he inferred was the immutable need to be able to avail himself of the Tuesday morning class, because it was this class that precipitated the complaint against the respondent.
9. The respondent determined that he wanted to provide a female-only class on Tuesday morning, which he called “Women on Weights”.
   It was a class that involved the use of small weights exercise to music. It was the same class as the applicant had enjoyed for 18 months, save now he, and all other males, were to be excluded.
10. I am satisfied that notice was sent to all existing members of the intended change to a female-only class, and that the applicant had prior notice of it before his attendance on the morning of Tuesday, 29 January 2008. Despite a suggestion to the contrary by the applicant, I am confident of his prior knowledge of the change because of his need to ask the instructor in charge on that morning permission to partake, and also the need to ask the female members present whether they had an objection to him joining them.
11. He was told by all present that there was no objection, and he proceeded to participate in the class until it was interrupted by
    Mr Evans, another instructor and someone who generally assisted the respondent on administrative matters.
12. The applicant left the classroom/exercise area and moved with Mr Evans into a foyer area. He was told he could not participate in the class because it was a female-only class. I am satisfied he remonstrated with Mr Evans, argued his case that no one in the class objected to his presence, and stormed back into the class, which had continued whilst he was outside with Mr Evans.
13. Mr Evans conferred with the respondent, who was in the office area, and was told to stop the class until Mr Walker left. This happened.
14. There is dispute between the applicant and the respondent’s witnesses as to the manner and effect of the applicant’s behaviour on this morning, and the effect on those present. The applicant would have me believe he was courteous, considered, reasonable and moderate in his tone and demeanour, whilst Mr Evans was of the view that the applicant was “kicking up quite a fuss in view of the others in the immediate area”, demanding to speak to the respondent, and then went back into the class in circumstances, in my view, that were inappropriate, provocative and very disruptive, resulting in a cessation of the class for five minutes until he reluctantly left. For the applicant to imply, as he did, that this behaviour caused no disruption, certainly of the degree that would warrant the cancellation of his membership, is unsustainable.
15. The applicant was described as loud and assertive in his personality by other witnesses. He certainly presented that way in court. Indeed, he presented as someone who struggles to contain himself, and is prone to excitable reaction when things are not going his way. He also presented, as one witness described him, as “very volatile”. I have no doubt that the applicant’s behaviour, whilst not physically threatening to Mr Evans (that is by Mr Evans’ subjective assessment, as he was confident in his physical capacity to deal with the applicant), was nonetheless, by community standards, intimidatory and aggressively assertive and disruptive.
16. The applicant, on going home, composed a letter dated 29 January 2008, which letter, it is acknowledged by him, was not delivered until 6 February 2008. In that letter, the applicant alludes to the alleged breaches of the Act.
17. The applicant attended a class on 11 February 2008 to be advised that his membership had been cancelled. The respondent then referred to a letter dated 7 February 2008 sent to the applicant, advising the applicant of the termination of his membership. The applicant states he did not have knowledge of this letter at the time that he attended the class on 11 February 2008, but inconsistently admits that he did find it that day after returning home. I do not accept the applicant as a truthful witness. I am of the view this was another example of him being deliberately provocative, having attended this class in the full knowledge of his membership being cancelled. This is another example of documentation said not to have been read or come to the notice of the applicant that he received prior to the happening of events. The first example is his feigned lack of knowledge of the intention to create a female-only class on Tuesday morning.
18. The applicant contends that the cancellation of his membership is victimisation in breach of the Act, as it was in response to the respondent’s knowledge he had unlawfully discriminated against him on a gender basis, and was retaliating.
19. In response to the allegations of victimisation, the respondent and his wife gave evidence that the decision to terminate his membership was made on 29 January 2008 after the incident in the morning, on the ground that his conduct was disruptive and represented a concern for the security of others. In support of both the decision-making process and the timing of the decision, a written report of Mr Evans of the incident, a written assessment by the respondent’s wife about the incident and what action should be taken, and various diary entries were produced. I am satisfied the respondent also on that day made contact with his industry’s representative body and sought advice as to what to do, which advice was to terminate the membership.
20. The evidence of the respondent and his witnesses I found credible. Together with the documentary corroborative evidence produced, I am satisfied that the decision to terminate the membership was made on 29 January 2008, and the reason for termination was the disruptive conduct of the applicant on that day.
21. I reject the applicant’s assertion that the documentary evidence was concocted. The alleged letter of 29 January 2008 referring to a letter that came into existence days later is not what the applicant would have me believe it is. He has misinterpreted, in my view, the content of that letter, and the supposed date of it. Whilst it is open to being misconstrued as the applicant has done, it is equally explained by a readily available and logical different interpretation.
22. The applicant also asserted that he had attended the gymnasium on two occasions after 29 January 2008 without being told his membership had been cancelled. He said he even bought a drink from the respondent’s wife on one of these occasions. Those attendances were said to have been before the date of delivery of his letter referring to the breaches of the Act. The applicant stated this as evidence in support of his contention that the decision to terminate his membership was after 29 January 2008, and in his response to his letter.
    He contends this is confirmatory of his victimisation.
23. The respondent’s wife gave evidence. I accept her as a truthful witness. She confirmed the joint decision of her and the respondent to terminate the membership on 29 January 2008. She confirmed the decision was based, after assessing the written reports of the instructors involved, on the applicant’s disruptive conduct, that it was his conduct that motivated the decision to cancel his membership. She denied ever selling a drink to the applicant after 29 January 2008. The respondent also gave evidence that the applicant did not attend on the days alleged by him after 29 January 2008 and that gymnasium records confirm this. He further confirmed the decision to terminate the membership was based on the applicant’s disruptive conduct on 29 January 2008 as reported to him and his wife. The reports to the respondent were such that he formed the view that the applicant had “bulldozed his way in [to the class] and intimidated the instructor and members of the class”.
    I accept that this was a sincerely held view of the respondent and was the genesis for his decision to cancel the membership.

Reason for introduction of female-only class

24. I accept the evidence of the respondent that he was motivated, in part, to create the female-only class in order to provide an environment conducive for women to partake in the pleasure and benefits of gymnasium-based exercise programs which they would not normally have considered, and would not normally have partaken in, but for the female-only aspect of the program. I am also satisfied that his motivation was not only altruistic. He hoped that by the introduction of the female-only program he would attract more customers.
    Advice received from his industry-based association suggested that this was a market to be exploited because of the reluctance of some women to partake in gymnasium-based exercise programs in the company of men. The concern of some women about the presence of men when exercising in a gymnasium is, in my view, something generally known and accepted in the community.
25. The respondent also gave evidence of his practice to provide exercise programs with restricted participation, such programs being limited to those of a certain age group or sporting activity. I accept that he has a number of programs available to the potential clientele of his business, and to that varied list of programs, he added a female-only program.

The relevant legal framework

Unlawful discrimination based on sex

26. Relevantly, s.5 of the Act provides that:
    • ...a person discriminates against another (an aggrieved person) on the ground of sex if that person imposes a condition, requirement or practice that has the effect of disadvantaging persons of the same sex as the aggrieved person.
27. Significantly, for the purposes of this judgment, this section is subject to the provisions of s.7D of the Act (see s5(3)).
28. Section 22 provides that it is unlawful to discriminate on the ground of a person’s sex when providing a service or by refusing to provide a service.
29. In broad terms, the facts of this case and the conduct of the respondent seem to be caught by the provisions of the Act, as obviously the service previously provided to the applicant was refused him on the basis of his sex.
30. However, very significantly, in the context of this case, is s.5(3) of the Act that enlivens s.7D. Section 7D provides:
    • (1) A person may take special measures for the purpose of achieving substantive equality between:
    • (a) men and women; or
      • ...
    • (2) A person does not discriminate against another person under section 5, 6 or 7 by taking special measures authorised by subsection (1).
    • (3) A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken:

(a) solely for that purpose; or

• (b) for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

31. The respondent contended that s.7D has application in this case and renders the conduct of the respondent lawful.
32. In support of that contention, he quoted from the Explanatory Memorandum in respect of s.7D when it was introduced into the Act as follows:
    35. The new clause (section 7D) recognises that certain special measures may have to be taken to overcome discrimination and achieve equality. Subsection (2) clearly states that such measures are not discrimination for the purposes of the Act.
    36. Subsection 7D(3) states that measures may be for the purpose of subsection (1) if they are being taken solely for the purpose of achieving equality or if they be taken for that purpose as well as for other purposes. In the latter case, it is not necessary for the purpose of achieving equality to be the main purpose for taking the measure.
    37. This provision seeks to achieve the equality of outcomes and is based on Australia’s international obligations to achieve equality, as required by international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women.
33. In Jacomb v the Australian Municipal, Administrative, Clerical and Services Union [2004] FCA 1250, Crennan J considered the purpose and effect of section 7D in the context where a challenge was brought on the basis of a breach of the Act against a Union rule that mandated the minimum number of women to be on the Union’s executive.
    It was said to be discriminatory against men.
34. Her Honour quoted the Attorney-General in his Second Reading speech for the Sex Discrimination Amendment Bill 1995, which introduced section 7D as follows:
    • The amendment proposed in the Bill makes two significant changes. It provides that special measures are not treated as a form of discrimination; instead, they would be considered as part of the threshold question of whether there is discrimination at all. Consequently, the ‘special measures’ provision will be moved from that part of the Act which provides exemptions. Special measures should be presented and understood as an expression of equality rather than an exception to it.
    • Second, the special measures provision currently focuses on the attainment of equal opportunities. This focus ignores the historical and structural barriers which impede women’s utilisation of formal equal opportunities. The Convention for the Elimination of All Forms of Discrimination Against Women refers to measures ‘aimed at accelerating de facto equality’, and our emphasis should be on measures to achieve real or substantive equality.
    • To attain substantial equality, it is necessary to look at the end result of a practice that purports to treat people equally. In this way, structural barriers that prevent a disadvantaged group from attaining real equality can be taken into account. A narrow and formalistic interpretation of equality will not produce equality, in fact, and may entrench existing discrimination or create new discriminatory situation.
35. In that context, with the understanding of why s.7D was introduced into the Act, her Honour considered its application. In doing so, she adopted the submissions made by the parties which were, in summary, as follows:
    • Any application of s. 7D requires an assessment of whether the measure in question was taken for the purpose of achieving substantive equality noting that such purpose was not required to be the only or even primary purpose (subjective test);
      
    • The court needs to objectively test first whether the entity propounding a special measure acted reasonably in assessing the need for the special measure;
      
    • Assess the capacity of the special measure to achieve the purpose of substantive equality;
      
    • The appropriate factors to be considered included:
      
      • the field of activity in which the special measure was taken;
      • the correct comparator in relation to substantive inequality;
      • the causes of inequality;
      • the proportionality of the special measure;
      • whether the special measure was still required.
        
36. When her Honour’s analysis is applied to the facts of this case, applying the relevant tests and factors, I find that:
    • There is an inequality between men and women as to how they can access the gymnasium services where only mixed classes are provided.
      
    • The evidence presented and the understanding gained by the respondent about the reluctance of some women to access the services if men would be present is evidence of, in my view, a substantive inequality which the special measure of providing female-only services addressed. The establishment of the female-only class provided substantive equality in the context of the services provided by the respondent. I am satisfied the respondent had formed a view that there was an inequality in this regard which he hoped to address by the special measure, and by so adopting it, attract more clients.
      
    • The respondent acted reasonably in assessing the need for the special measure of providing a female-only class and in doing so acted proportionately, having regard to the very many other programs available to males, in particular, to the applicant;
      
    • The female-only class is a reasonable “special measure” when tested objectively.
      
    • For the above reasons, the female-only class introduced by the respondent is properly classified as non-discriminatory and not, therefore, in breach of the Act.

Breach of s.86 of the Act - Advertising

37. The applicant alleged that material produced and circulated by the respondent about the new female-only class was “advertising” in breach of s.86 of the Act. This allegation falls, as it must, on my finding that the class was not discriminatory in a sense that breached the Act.

Victimisation

38. Section 94 prohibits anyone from committing an act of victimisation against another or subjecting or threatening to subject that person to any detriment. The section lists a number of instances of how that prohibition may be offended, none of which have application to the facts in this case. I am satisfied that the termination of the applicant’s membership was decided, and put into effect, on 29 January 2008 in response to the applicant’s inappropriate behaviour, and did not relate in any way to the instances set out in s.94. Accordingly, the alleged victimisation is not made out.

CONCLUSION

39. For the above reasons, the applicant has failed to establish the breaches of the Act he alleges the respondent committed. Accordingly, I shall dismiss the application filed on 26 September 2008, and order the applicant to pay the respondents’ costs of and incidental to the application; noting amounts of $15 and $200 are payable to Ms Karen Knight and Mr Justin Evans respectively as witnesses’ expenses.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM

Associate:

Date: