Johnson v Free Spirit Management Pty Ltd [2010] NSWADT 31 (2 February 2010)

Last Updated: 17 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Johnson v Free Spirit Management Pty Ltd [2010] NSWADT 31


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
Ryan Johnson

RESPONDENTS
Free Spirit Management Pty Ltd
NRMA Tourist Park No 3 Pty Ltd



FILE NUMBERS:
081097

HEARING DATES:
14 May 2009

SUBMISSIONS CLOSED:
14 May 2009



DATE OF DECISION:
2 February 2010

BEFORE:
Furness G - Judicial MemberHayes E - Non-Judicial MemberSchneeweiss J - Non-Judicial Member





LEGISLATION CITED:
Anti Discrimination Act 1977

CASES CITED:
Margan v University of Technology, Sydney, (EOD) [2003] NSWADTAP 65
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

TEXTS CITED:


APPLICATION:
Age discrimination, teenagers, victimisation

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
Anthony Johnson, agent
RESPONDENT
Mr Williams


ORDERS:
The application for dismissal is refused


Reasons for Decision:

REASONS FOR DECISION

1 The applicant made a complaint of age discrimination in the provision of goods or services to the Anti Discrimination Board ("the Board") on 21 April 2008. The complaint was referred to the Administrative Decisions Tribunal ("the Tribunal") on 8 October 2008. The period of complaint is between 11 and 21 January 2008.

2 The first respondent is the appointed manager of the Ocean Beach Holiday Park ("the Holiday Park") and the second respondent is the owner of the Holiday Park. The second respondent did not provide any response to the complaint. Reference to the respondent in this decision is a reference to the first respondent.

The complaint

3 The applicant complains that he was discriminated on the ground of age in the provision of services to him. He complains that during the period of complaint he was resident in the Holiday Park with his parents when he was denied free movement through the park after 9pm each night because he looked like a teenager. He was 18 years of age.

4 The applicant states that on 11 January 2008 he was stopped by Phillip Fordyce, the manager of the Holiday Park, employed by the respondent, and told that he was a teenager and teenagers were not allowed to walk around by themselves after 9pm unless they had an adult present with them.

5 In a later conversation with his parents, the applicant states that Mr Fordyce said that new rules were implemented regarding teenagers.

6 In addition, the applicant claims he was victimised by the respondent by it having cancelled his parents’ 2009 booking, a few days after his parents had sent the respondent a letter complaining about their attitude to the applicant and other teenagers.

7 The applicant seeks compensation of $33,000 for "age discrimination" because he was treated less favourably because he looked like a teenager, $33,000 for the "blanket policy of the age discrimination for the provisions of goods and services directed at all teenagers staying within the park" and $39,000 for victimisation as described above and for "trying to implicate me in incidents of anti-social behaviour".

The Proceedings

8 The matter was heard by a Tribunal constituted by Judicial Member J Conley and Members J Schneeweiss and E Hayes on 14 May 2009. This decision has been written by a differently constituted Tribunal, comprising the above Members and Judicial Member G Furness. Judicial Member J Conley was unable to participate in the preparation of the decision because of personal reasons. The newly constituted Tribunal had the benefit of a transcript of the proceedings.

9 The applicant was represented by his father, as his agent and the respondent was represented by Mr Williams.
10 Before the Tribunal was the President’s Report, to which was attached the following relevant documents:

a)the complaint by the applicant;

b)a letter from Mrs Johnson, the applicant’s mother to the Holiday Park, dated 27 January 2008 complaining of the events the subject of these proceedings, advising "if your policy is to discriminate based on age we will be forced to complain to the anti-discrimination board" and seeking an apology;

c)a letter in response dated 1 February 2008 from the Holiday Park cancelling the Johnson’s reservation for Christmas 2008 "due to the number of complaints received during and after your last stay with us regarding behaviours, abusive language and fighting by teenagers associated with your site";

d)A response by the respondent to the complaint attaching a statement by the manager of the Holiday Park, Mr Fordyce, and an unsigned statement by Vanessa Fordyce; and

e)A letter dated 16 June 2008 from the applicant in response to the statement of Mr Fordyce, statutory declarations from the applicant’s mother, residents of the Holiday Park at the relevant time, Betty Canarsh, Carol Palmer, and the applicant’s father.

11 In addition, two letters from the respondent to Mrs Johnson confirming the reservation for December 2007 – January 2008 and noting, among other matters, that the tariff was based on 2 adults and 2 children and that children between 0-3 years were free, children aged between 4-15 years were at the ‘child rate’ and 16 years and over were at the adult rate, were tendered.

12 A statement of Phillip Fordyce dated 12 May 2009, that is two days prior to the hearing, was handed to the Tribunal on the day of the hearing. The transcript reveals that the applicant did not object to it, however, it was not formally tendered and no exhibit number was attached to it.

13 The applicant had filed a number of witness statements and a reference, none of which was tendered and the respondent was not called upon to make any submissions as to any objections it had concerning the tender of those statements and the reference.

14 None of the documents referred to in the previous two paragraphs were taken into account for the purposes in deciding the s.102 application made by the respondent and referred to below.

Section 102 application

15 The respondent applied for the complaint to be dismissed on the grounds that it is misconceived, lacking in substance and that the applicant has no standing to bring the complaints.

16 An outline of written submissions was provided to the Tribunal. In relation to the complaint of discrimination, the respondent submitted that, first, it had not been demonstrated that the respondent was the provider of goods or services (s.49ZYN of the Act). Secondly, there was no contractual or other relationship between the applicant and the respondent. Thirdly, there was no refusal to provide goods or services and the terms on which those goods or services were to be provided was not specified and finally, the applicant has no standing as his parents are the proper applicants because they had the contractual or other relationship with the respondent.

17 In relation to the victimisation complaint, the respondent submitted that the applicant was not a party to the booking made by his parents and therefore could not be victimised.

18 Mr Williams made oral submissions in support of his application.

19 Mr Johnson relied upon the letter referred to above as indicating that the Holiday Park was providing a service to the applicant, because the letter referred to the presence of two children, one of whom was the applicant.

20 Section 102 of the Act provides that the Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b), that is, that the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations or for any other reason no further action should be taken in respect of the complaint, or part of the complaint.

21 In Margan v University of Technology, Sydney, (EOD) [2003] NSWADTAP 65 the Appeal Panel said, in relation to the previous provision relating to dismissal, s.111, at paras [9]-[11] and [13]-[15]:

A complaint can be dismissed under s 111(1) if the Tribunal is satisfied that it is "frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained". The words "frivolous, vexatious, misconceived or lacking in substance" were interpreted, in a slightly different but analogous context, by Hunt J in Langley v Niland [1981] 2 NSWLR 104. At 107 Hunt J held that those words relate to the "insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all." However, Hunt J added that the words "for any other reason" include the reason that the complaint does not disclose a contravention of the Act. A complaint which relied on a ground not covered by the AD Act or, to use Hunt J's example, a complaint which fell within one of the exceptions in the Act, would not disclose a contravention.

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.

Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of `taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken `at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred.

...

Wilson J in Assal v Dept. of Health, Housing & Community Services (1992) EOC 92-409 at p.78,900 rejected the onerous test of "no real prospect of success." His Honour said at "A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance." That test has been adopted by the Federal Court in Nagasinghe v T A Worthington QC & Anor (unreported, von Doussa J, 6 October 1994 at 5; appeal to the Full Court dismissed, unreported, 2 June 1996; application for special leave to appeal to the High Court refused [1996] 13 Leg. Rep. SL11) and Ebber v Human Rights and Equal Opportunity Commission & Ors (unreported, Drummond J, 17 March 1995 at 54).

However, Carr J in McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477 (18 October 2000) distinguished Wilson J's approach in Assal because in those cases the "complainants had had their day before the Commission." In McGlade, the proceedings were at a preliminary stage when they were dismissed. In those circumstances, Carr J endorsed the position taken by the Court of Appeal in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102. In that case Ormiston JA said that "there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end." We agree with and adopt Ormiston JA's approach.

The Tribunal has warned that extreme caution must be exercised when determining a s 111(1) application prior to the substantive hearing. In Orr v Commissioner of Police, New South Wales Police Service [2000] NSWADT 150 the Tribunal rejected a party's request to deal with the s 111 application prior to the hearing, on the basis that there was no evidence or agreed facts on which the Tribunal could base its decision. Similarly, the Tribunal in Karekar v Tafe Commission of New South Wales [2000] NSWADT 187 expressed the view that particular caution is necessary in cases where a s 111(1) application is made prior to the adducing of the applicant's evidence at the substantive hearing. We agree, but the warning warrants refinement. It is the case that when the s 111 application is, in effect, a challenge to the sufficiency of the evidence available to support the complainant's version of events, the application would most usually be made only after the complainant's case has been heard and, even then, subject to the reasonable apprehension of what might be revealed in the respondent's case, as we discussed above. But when the s 111 application is, instead, one that goes to the Tribunal's jurisdiction - one that claims, for example, that the allegations even if proved do not identify conduct proscribed by the Act, or that the respondent is exempt from the provisions of the Act - then it will often be appropriate for that application to be made at the earliest opportunity so as to save time and cost.

22 The first submission made by the respondent was that it had not been demonstrated that the respondent provided goods or services. "Goods" are not defined in the Act, however, ‘services" are in s.4 and include services relating to recreation. The term ‘services’ is to be interpreted liberally, although there is a need to identify the services in question with reasonable precision (see Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349).

23 The service which the applicant identifies is free movement through the Holiday Park after 9pm. While there is no factual dispute that the applicant’s movements were restricted, there is a factual dispute as to when that occurred and the reason for it having occurred.
24 In its response to the complaint, the respondent made a number of statements which are not readily reconcilable. First, it referred to a Park Rule that noise from television, music and social gatherings be restricted between the hours of 10pm and 8am. It then stated that this Rule was not addressed specifically to teenagers, it was simply that in practice it was most often teenagers who tend to disregard the rules. Secondly, it stated that "on a practical level we have had no choice but to restrict the movement around the park of groups of teenagers". Thirdly, it stated that the applicant was not treated any differently to anyone else his age or of any other age, exhibiting the same behaviour. Finally, it stated that the applicant was requested to refrain from making excessive noise and moving around the park after 10pm with groups of other teenagers.

25 Taking the applicant’s case at its highest, that he was restricted in his movements around the Holiday park after 9pm because he looked like a teenager, there is evidence capable of supporting a finding that the respondent provides services relating to recreation to those persons who stay at the Holiday Park on payment of a tariff. In this case, there is evidence that the applicant was one of the two children referred to in the letters confirming the family’s reservation. A term on which those services may be provided may include the movement throughout the Holiday Park.

26 As s.49ZYN(1)(a) and (b) are in the alternative, it is not necessary that the applicant claim that there was discrimination by way of a refusal to provide services as well as in the terms on which those services were provided.

27 In relation to the respondent’s second submission, it is not essential to the applicant’s claim, that he, independent of his parents, be in a contractual relationship with the respondent in order for the latter to provide services relating to recreation to him. As indicated above, there is evidence that the applicant was residing in the Holiday Park with his parents. Thus, the Tribunal is not satisfied that the claim is lacking in substance or misconceived because of the absence of a contractual relationship.

28 Turning to the third submission, the terms on which the respondent offered the services have been identified by the applicant, namely not being permitted to be present in the Holiday Park after 9pm without an adult.

29 Finally, the applicant has standing to bring the complaint pursuant to s.87A(a)(i) which provides as follows:

(1) A complaint alleging that a named person has, or named persons have, contravened a provision of this Act or the regulations (other than a provision for which a specific penalty is imposed) may be made by any of the following:

(a) one or more persons:

(i) on his, her or their own behalf, or

(ii) on his, her or their own behalf as well as on behalf of another person or persons,

(b) a parent or guardian of a person who lacks the legal capacity to lodge a complaint (for example, because of age or disability),

(c) a representative body on behalf of a named person or persons, subject to section 87C,

(d) an agent of any of the persons referred to in paragraph (a), (b) or (c).

(2) Nothing in this Division prevents a person from making a complaint (not being a representative complaint) even though the conduct in respect of which the complaint is made is also conduct in respect of which a representative complaint has been made.

(3) In this section, "guardian" has the same meaning as it has in the Guardianship Act 1987 .

30 It is not necessary for him to have personally had a contractual relationship with the respondent in order to make a complaint.

31 In relation to the victimisation complaint, there is evidence of the applicant having attended with his family on prior occasions at the Holiday Park. Thus it is not misconceived or lacking in substance to claim that the applicant has been subject to detriment by the respondent cancelling the reservation of his parents.

32 Accordingly, the Tribunal is not persuaded by the submissions of the respondent that the complaints by the applicant are misconceived or lacking in substance or that he lacks the requisite standing to bring them.

33 The application for dismissal of the complaints is refused.