Edwards v Bourke Shire Council [2005] NSWADT 9 (14 January 2005)

Last Updated: 18 January 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Edwards v Bourke Shire Council [2005] NSWADT 9


PARTIES: APPLICANT
Janice Edwards
RESPONDENT
Bourke Shire Council




FILE NUMBERS: 041052

HEARING DATES: 30/09/2004 and 02/11/2004

SUBMISSIONS CLOSED: 02/11/2004



DECISION DATE: 14/01/2005

BEFORE: Hennessy N - Magistrate (Deputy President)Mooney L - Non Judicial MemberO'Sullivan M - Non Judicial Member





LEGISLATION CITED: Anti-Discrimination Act 1977
Evidence Act 1995

CASES CITED: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Walker v State of New South Wales [2003] NSWADT 13

APPLICATION: Race Discrimination - Goods and Services

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
C Mendes, counsel

RESPONDENT REPRESENTATIVE: RESPONDENT
D McKay, solicitor

ORDERS: The complaint is dismissed.


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 In late 2001 Ms Edwards, an Aboriginal woman, inquired at the Bourke Shire Council about booking the Golf Club for her son’s 21st birthday. An employee of the Council pencilled the booking into the diary. Mr Varley, the General Manager, (or his delegate if he was absent) was responsible for making decisions about the hiring of the Golf Club. There was no Council policy on that subject. On 5 December 2001 Mr Varley told Ms Edwards that she couldn’t have the Golf Club for her son’s birthday party. There is disagreement about the reason he gave for refusing to hire the Club to her, but it related to the circumstances surrounding a previous party that Ms Edwards had at the Golf Club for her son’s 18th birthday. A few weeks after Mr Varley told Ms Edwards that she could not hire the Club, Ms Edwards went to a Council meeting to complain about that decision. Council confirmed Mr Varley’s decision at that meeting. Ms Edwards has brought a complaint of race discrimination against the Council. The Council denies that it has discriminated against Ms Edwards.

Issues

2 There is no dispute that by declining Ms Edwards’ application to hire the Golf Club, Council refused to provide her with a service. (Anti-Discrimination Act 1977 s 19.) The issue is whether, in refusing that service, the Council discriminated against Ms Edwards on the ground of race. In order to prove race discrimination, Ms Edwards must establish, on the balance of probabilities, that:

(a) the refusal to hire her the Golf Club was less favourable treatment than the treatment that was actually afforded to a non-Aboriginal person or to a person who did not have Aboriginal relatives or associates, in the same circumstances or in circumstances which were not materially different;

(b) if there is no non-Aboriginal person with whom to make a comparison, that the refusal to hire her the Golf Club was less favourable treatment than the treatment which would hypothetically have been afforded to a non-Aboriginal person or to a person who did not have Aboriginal relatives or associates, in the same circumstances or in circumstances which were not materially different;

(c) if either (a) or (b) is established, then that:

- Ms Edwards’ Aboriginality;

- the Aboriginality of her relatives or associates; or

- a characteristic that is generally imputed to Aboriginal people

was at least one of the grounds for the refusal. (Anti-Discrimination Act s 7 and s 4A.)

3 We refer to the questions posed in (a) and (b) above as "differential treatment". The issue in (a) is based on an actual comparator and in (b) on a hypothetical comparator. We refer to the questions in (c) as "causation". (See Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5.)

Irrelevant evidence or evidence with little weight

4 Certain matters raised during the hearing are either not relevant to the question of differential treatment or causation or have so little weight in relation to those issues as to be of very limited assistance. These include:

- the fairness of the Council’s policy to allow Golf Club members, the majority of whom are non-Aboriginal, to use the premises free of charge and without Council’s approval; and

- whether Ms Edwards said at the Council meeting on 17 December that they had refused the hire because she is Aboriginal; and

- the evidence relating to a request to hire the Golf Club by the Bourke Community Development Employment Project (CDEP) – among other things, Mr Varley had nothing to do with that request.

5 The Council presented evidence of Mr Varley’s record of achievement assisting Aboriginal and non-Aboriginal members of the community in Bourke. That evidence was said to be relevant to the question of whether Mr Varley would have discriminated against Ms Edwards on the ground of her race. None of that evidence establishes that Mr Varley has a tendency to hire or not to hire the Golf Club to Aboriginal people. For that reason we have not taken it into account in our assessment of whether or not a ground for refusing to hire the Golf Club to Ms Edwards was her race or that of her relatives or associates.

Differential treatment

6 Same or similar circumstances. When comparing the treatment which was afforded to Ms Edwards with the treatment that was actually or hypothetically afforded to a non-Aboriginal person or to a person who did not have Aboriginal relatives or associates, the circumstances must be the same or not materially different. The parties were not in total agreement about the circumstances in which Ms Edwards was refused permission to hire the Golf Club. We make findings in relation to those circumstances below.

7 Circumstances in Ms Edwards’ case. When Ms Edwards held her son’s 18th birthday party at the Golf Club, one of the people at the party damaged the front door and broke a mirror. On 13 January 1999 Mr Varley wrote to Ms Edwards and asked her to pay for the damage, which amounted to nearly $600.00, by 31 March 1999. Mr Varley added that he understood that she was taking legal action against the perpetrator to recover the costs and that Council may consider an extension of time to pay if the matter was not resolved before the 31 March deadline. The letter concluded by saying that "Failure to pay Council may result in legal action against you to recover the cost plus a ban on future hiring of Council’s facilities."

8 Ms Edwards contacted police about the damage and organised for the security guard who had been on duty at the party to provide a statement about the incident. She did not pay the Council the $600.00 because she anticipated that the Local Court would order the offender to compensate the Council for the damage. Ultimately the Local Court did make such an order and the Council refunded Ms Edwards her $300.00 deposit for the hire of the Club. In addition to the damage done on the night of the party, an Aboriginal person or people broke into the Golf Club premises the following night. Ms Edwards understood that Mr Varley blamed her for the break in and that that was the reason he refused to hire her the Golf Club for her son’s 21st birthday party.

9 Actual comparator? The Council provided the Tribunal with a list of the bookings for the Golf Club taken in the years 1996, 1998, 2001 and 2003. The diaries for the remaining years had apparently been lost. The Golf Club had been hired to many non-Aboriginal groups including the Meatworks Social Club for their Christmas Party in 1996. According to Ms Pelham, the Director of Finance and Administration, the Council had refused to hire the Club to the Meatworks Social Club after an incident on the premises on 25 July 1998 where there had been some damage to the premises. The notation in the diary next to the entry of 25 July 1998 states: "$300 damage, $150 hire, $60 cleaning." Ms Pelham said that following an inspection by Council engineers of the premises they advised her not to refund the deposit. According to Ms Pelham, Mr Hart, another Council employee, may have known more about a later refusal to accept a booking from the Meatworks Social Club.

10 No actual comparator. While we accept Ms Pelham’s evidence that she did not refund the deposit to the Meatworks Social Club, we are not satisfied that Mr Hart or anyone else, refused to hire the premises to the Meatworks Social Club at a later date. Mr Hart did not give evidence and there was no corroborating documentary evidence produced in relation to the alleged refusal. Mr Varley was not aware of anyone being refused permission to hire the Golf Club premises apart from Ms Edwards even though someone acting as his delegate may have made that decision. In those circumstances, we are not satisfied that Council refused to hire the Golf Club to the Meatworks Social Club. Consequently there is no actual comparator and Ms Edwards must rely on a hypothetical comparator.

11 Hypothetical comparator. The issues of differential treatment and causation tend to conflate when the comparison is hypothetical. As the Tribunal pointed out in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63], the Tribunal will not know how a hypothetical comparator would have been treated until the ground or grounds for the treatment of the applicant is known.

Causation

12 Possible grounds for the refusal. The evidence and submissions canvassed several possible reasons for Mr Varley’s decision. The possibilities are that he refused to hire the premises to Ms Edwards:

- because of the damage done by a guest at the 18th birthday party of Ms Edwards’ son and the time that it took for Council to be compensated for that damage (this was Mr Varley’s evidence);
- because he blamed Ms Edwards for the fact that the Golf Club was broken into on the Sunday after her son’s 18th birthday (this was Ms Edwards’ understanding of what Mr Varley told her);
- because Ms Edwards is Aboriginal (Ms Edwards submitted that this inference could be drawn on the basis of circumstantial evidence);
- because of the Aboriginality of Ms Edwards’ relatives or associates (Ms Edwards submitted that this inference could be drawn on the basis of circumstantial evidence);
- because he imputed that because Ms Edwards and her relatives and associates are Aboriginal that they would be more likely to cause damage to the Golf Club than non-Aboriginal people (Ms Edwards submitted that this inference could be drawn on the basis of circumstantial evidence.)

13 We must consider all the evidence when coming to a view about whether at least one of the grounds for Council refusing to hire Ms Edwards the Golf Club was race. We have already outlined the circumstances giving rise to the decision including the fact that there was damage done at the 18th birthday party for which the Council was ultimately compensated. Below we summarise other relevant direct and circumstantial evidence and make findings of fact.

14 Mr Varley’s version of 5 December conversation. According to Mr Varley, he told Ms Edwards on 5 December 2001 that Council did not want to hire her the Golf Club "after the experience we had last time you hired it." When Ms Edwards said that she was not to blame for the break in, Mr Varley said that the refusal had nothing to do with the break in; it was because of the damage done on the Saturday night. That reason is consistent with one of the reasons given in the Council’s letter to the Anti-Discrimination Board in response to the complaint. In that letter Council said it was disappointed with the "lack of response" from Ms Edwards and her son to their request for reimbursement for the damage sustained at the 18th birthday party. Council also expressed the view that the further request by Ms Edwards to hire the premises should be declined because any responsibility for payment for any further damage could not be assured.

15 Ms Edwards’ version of 5 December conversation. Ms Edwards says that when Mr Varley spoke to her he said "if you hadn’t hired it, it wouldn’t have happened" and "your party members did it". Mr Varley denies having said that and denies that the break in had anything to do with his decision to refuse Ms Edwards the hire of the Club. He said that he did not know that the perpetrators were Aboriginal at the time he is alleged to have made that comment. Ms Pelham knew that the perpetrators were Aboriginal and said that she "can’t prove" whether or not there was any relationship between Ms Edwards’ party on the Saturday night and the break in on the Sunday night. Ms Pelham later denied that there was any connection between the two events. Ms Edwards’ consistently maintained her belief that this was the reason for the refusal.

16 17 December meeting. Ms Edwards says that she attended the Council meeting and handed a letter to Councillors saying that Mr Varley had refused to hire her the Golf Club because of the break in after her son’s 18th birthday. The letter also mentions the fact that Council was compensated for the damage that happened on the night of the party. Ms Edwards says that the Councillors read the letter. Ms Pelham said that Council had no record of the letter ever having been received and she does not recall it being passed around. Although there is no formal record of the letter, we are satisfied that Ms Edwards presented that letter to Council at the meeting on 17th December. The letter indicates that, in Ms Edwards’ view, the break in on the Sunday was the reason for the refusal. Council later addressed Ms Edwards’ complaint and decided to support Mr Varley’s decision. Despite Ms Edwards’ evidence that Mr Varley did not attend the Council meeting, the evidence of Mr Varley and Ms Pelham and the minutes of the meeting suggest otherwise. We find that Mr Varley was at the meeting and that Ms Edwards’ recollection is not accurate. We do not place any significance on the evidence of Mr Varley, which he later retracted, that the deliberations were held "in camera."

17 Report by the security officer. In Council’s response to the Anti-Discrimination Board’s questions about the complaint they said that a further "area of concern" was the report by the security officer at the 18th birthday party of lack of control of entry of guests and the crowd generally. Mr Varley did not give that as a reason for refusing Ms Edwards’ request in his written or oral evidence.

18 Failure to provide reasons. Ms Edwards said that on three occasions she asked Mr Varley to provide her with written reasons for the refusal but Mr Varley did not do so. Mr Varley said that he did not put his reasons in writing because he did not like writing nasty letters to people. He said that in hindsight he should have sent her a letter.

19 Factual findings. Although the break in on the Sunday night was mentioned in the conversation Ms Edwards had with Mr Varley on 5 December, we find that Mr Varley conveyed to Ms Edwards that it was the events at the party rather than on the following night that were the reason for his refusal. That view is supported by Mr Varley’s assertion that he did not know at that time that the perpetrators of the break in were Aboriginal. In addition, the break in on the Sunday was not mentioned in the letter to the Anti-Discrimination Board. For these reasons we prefer Mr Varley’s version of the conversation on 5 December. That finding does not necessarily mean that the reason given by Mr Varley was the real ground for his decision.

20 Ms Edwards submitted that the implausibility of Mr Varley’s explanation and the cumulative effect of circumstantial evidence lead to the inference that Mr Varley’s decision was based on race. Essentially Ms Edwards pointed to evidence that she said suggested that Mr Varley’s stated reasons for his actions were a pretext for what was actually a discriminatory reason. The circumstantial evidence to which Ms Edwards pointed includes:

- the letter Mr Varley wrote on 13 January 2001 stating that a ground for refusal of further hire would be failure to pay the compensation sought for the damage – that compensation was paid;
- that when he wrote the letter Mr Varley was already aware that Ms Edwards was making efforts to have the money repaid by the perpetrator;
- that Council was eventually fully compensated for the damage and Ms Edwards’ deposit was returned;
- that Mr Varley never indicated to Ms Edwards during the 3 years between her son’s 18th and 21st birthdays that a request for further hiring would be refused;
- that Mr Varley refused to provide Ms Edwards with written reasons for his decision;
- that Council failed to respond to Ms Edwards until 8 weeks after the December meeting; and
- the absence of any Council policy in relation to the hiring of the Club.

21 In addition to those points, the fact that Council mentioned the report by the security officer as an "area of concern" may tend to suggest that the reason Mr Varley gave was not the real reason for the decision.

Causation

22 Aboriginality of Ms Edwards or her relatives and associates. Although this evidence establishes that Mr Varley’s decision was ad hoc and lacking in transparency, we are not persuaded that the reason he gave for the decision was a pretext for him to discriminate against Ms Edwards on the ground of her race. We agree with Ms Edwards that Mr Varley should have provided her with written reasons for that decision. Mr Varley also agreed, in hindsight, that he should have done so. We also agree that the decision was not consistent with the letter that Council sent to Ms Edwards after the 18th birthday party and that Ms Edwards understandably expected to be able to hire the Club again. The absence of any policy also leaves Council vulnerable to claims of discrimination. However, we must also take into the fact that Mr Varley had hired the Golf Club out to Ms Edwards previously for her son’s 18th birthday and to several Aboriginal organisations including the Weilmoringle/Bourke Aboriginal Football Club and the Gundabooka Aboriginal Corporation. In that context, the idea that suddenly Mr Varley would refuse to hire the Golf Club to Ms Edwards because of her Aboriginality or that of her relatives or associates, is not credible.

23 Characteristics extension. The only other way in which the decision Mr Varley made on behalf of Council could amount to race discrimination is if it was made on the basis of "a characteristic that is generally imputed" to Aboriginal people. Ms Edwards asked the Tribunal to find that the refusal was on the ground of a characteristic Mr Varley imputed to her and her partygoers, namely that as Aboriginal people they were more likely to cause damage to premises than non-Aboriginal people. This has been referred to as the "characteristic extension" to the definition of discrimination. (See Walker v State of New South Wales [2003] NSWADT 13). It is intended to cover situations where a person is stereotyped on the basis of their race, disability, marital status etc. (See Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 18.)

24 Nature of characteristic in this case. We have found that Mr Varley’s reason for refusal was because of the damage done by a guest at the 18th birthday party and the time that it took for Council to be compensated for that damage. Consequently, in order to prove discrimination on the ground of an imputed characteristic, Ms Edwards would have to satisfy the Tribunal that it was a characteristic generally imputed to Aboriginal people that if they had damaged premises on one occasion and compensation was delayed, then it would be likely that that scenario would be repeated on a second occasion. No evidence was led in support of the assertion that this is a characteristic that is generally imputed to Aboriginal people. While we are not bound by the rules of evidence we are not satisfied that such a characteristic is something that is not reasonably open to question and is a matter of common knowledge or capable of verification by an authoritative document. (See s 144 of the Evidence Act 1995.)

25 Differential treatment. As we have said, the causation and differential treatment tests tend to conflate when the comparator is a hypothetical person. Consequently we are also satisfied that if a hypothetical comparison were made differential treatment would not be made out.

Orders

26 The complaint is dismissed.