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Administrative Decisions Tribunal of New South Wales |
Last Updated: 20 June 2011
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Burns v Laws (EOD) [2008] NSWADTAP 32
Qantas Airways v Gama [2008] FCAFC 69 Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 Hall v Sheiban (1985) ALR 503 Hall v Sheiban [1989] FCA 72; (1989) 20 FCR 217 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 Dutt v Central Area Health Service [2002] NSWADT 133 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Watersv Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 |
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The Complaint
"I believe I was discriminated against because I look like a teenager. During
the last Christmas holidays I stayed at Ocean Beach
Caravan Park. During my stay
there I was walking to the beach from my caravan (with my girlfriend) on the
night of 11/1/2008 at approx.
9:00PM. (The caravan park has the beach at the
front of the caravan park). I was approached and stopped by the caravan park
manager
Phillip Fordyce and he told me no teenagers are allowed to go to the
beach at night anymore; he then told me to go back to my caravan.
I told the
manager I was 18 years old and had paid to stay at the park based on a (sic)
adult tarriff (sic) rate due to being 18
years old. He told me bad luck it was a
new rule, I told him he was discriminating against (sic) based on age, he told
me no teenager
was allowed to walk around his caravan park at night unless they
were with there (sic) parents.
I went back and got my parents from the caravan, we then approached the
manager to ask for an explanation. The manager told us in
front of my parents he
does not allow teenagers to go to the beach at night regardless of the beach not
being owned by the caravan
park, my parents told him he was discriminating based
on how old someone looks, my parents asked him, has my child done anything
wrong
to warrant this behaviour. He said no, but other teenagers had caused some
problems and that they were clamping down on all
teenagers. He said (the
manager) that the park management had changed and that certain privileges for
all teenagers had been reduced,
and that the owner of the park could do what
they (sic) liked and make any rule they (sic) wanted. At the end of the holiday
my mother
wrote a letter to the caravan park management to seek an apology for
the incident and they replyed (sic) 3 days later cancelling
our pre-booked
holiday for the following year."
Background
The Ocean Beach Holiday Park ("the Park") accommodates up to 4000 guests
during peak season and attracts a large number of families
with small children
due to the facilities we have in place. We therefore feel it is very important
that all rules are complied with,
and respect and consideration are shown to all
other guests so that everyone is able to enjoy their stay.
The Johnson family has stayed with us on previous occasions and we have
received specific complaints on the last two occasions from
both long-term and
short-term guests in relation to the behaviour of Ryan and Jessie Johnson and
some of their friends. In September
2007 the family stayed at the Park and we
were forced to contact Mrs Darleen Johnson by telephone following complaints
about the
excessive noise and foul language coming from their cabin. It was
found that there were several teenagers congregating in the cabin,
and no adult
was present. Mrs Johnson advised us she was four-wheel driving at Stockton and
would not return to the Park until later
that evening. We received a further
complaint at 10:40pm on that same day (29 September 2007) complaining of
excessive noise and
foul language coming from the Johnson's cabin.
More recently the family stayed at the Park in January 2008. Again we
received multiple complaints about the behaviour of a group
of teenagers, which
included Ryan and Jessie Johnson. We received verbal complaints about the
teenagers' behaviour on 3, 4, 5, 10
and 12 January 2008, and written complaints
on 8 January and 10 January 2008.
This problem is not restricted to the Johnson family and their friends, but
has been an endemic problem across the Park. We have therefore
had to increase
security presence and more regularly patrol the grounds. There has (sic) also
been some recurring issues with local
teenagers being overly aggressive and
threatening to Park guests, both on Park grounds, on the beach in front of the
Park and at
the local skate park. We have tried to address this by encouraging
guests to return to their sites after dark, but especially by
10pm.
The following is extracted from just one of the complaints we received about
inappropriate behaviour by groups of teenagers staying
at the Park:
Over the past 12 months there has (sic) been a few ongoing problems with
underage teenagers congregating around the caravans drinking
... On the night of
4 th January there was a lot of comings and goings with teenagers carrying
eskys. Later during the night we heard
teenagers yelling loudly and swearing. At
around 1:30am a girl was vomiting outside our bedroom window ... Around 2:30-3am
about
6 boys arrived at their van, threw one boy inside who was totally drunk -
yelled 'did you see me punch that sign down there?' and
then said they were
going off to the skate park. During this time the swearing was bad.
...
As we take our children and grandchildren up for a holiday we find it totally
distressing when episodes like this happen. The language
that comes from these
teenagers when they congregate is totally filthy.
This is an extract from another complaint during the same period:
We stayed for one week from 2 nd - 9 th Jan 2008 ...During our stay I found
the park to be overrun with noisy teenagers late at night,
during our week stay
at least 4 nights we were woken with noise, bad language, fights, drinking and
running through the toilets screaming.
One night my sister and I witnessed 4
boys full on fighting in front of us, luckily some fathers broke it up. I was
very concerned
for my toddler who battled to sleep through the noise and as a
result was upset regularly. My teenage son wanted to go home early
due to the
intimidation he felt from groups of boys his age ...I feel your security needs
to be tightened and after hours noise monitored
more closely. Parents are not
taking responsibility for their children and from where we could see this seems
to be regular visitors
causing the trouble and continuing the loud noise.
Park Policy
In response to Mr Johnson's comment that rules and information be given prior
to booking a holiday, we advise that our guest information
is provided upon
registration, and can be found on the back of the Park map (see copy attached).
The sub-heading 'Quiet Time' reads:
Please be respectful of the enjoyment of others within the park by
restricting noise from television, music and social gatherings
between the hours
of 10pm and 8am.
As the Johnson's had stayed with us on several prior occasions they should
all be well aware of the Park Rules and policies. Additionally,
it is by no
means an unusual policy for a Park to have a curfew and noise restrictions in
place.
Furthermore, our rule is not addressed specifically to teenagers, it is
simply that in practise (sic) it is most often teenagers who
we find tend to
ignore or disregard the rules.
While this is for the benefit of all of our guests to ensure everyone can
relax and enjoy their time at the Park, this is also in
compliance with local
council noise restrictions and with the Protection of the Environment
Operations Act 1997 , and the Protection of the Environment Operations
(Noise Control) Regulation 2000 . These are also the times widely used in
the industry as a noise rule curfew for fair and equal enjoyment of the place of
accommodation
by all guests.
We have found that on a practical level we have had no choice but to restrict
the movement around the Park of groups of teenagers,
for the safety and
wellbeing of all of our guests and their personal possessions. As such we submit
that Ryan Johnson was not subjected
to any form of discriminatory behaviour as
he was not treated any differently to anyone else his age, or of any other age,
exhibiting
the same behaviour. It was not Ryan's age that was the issue. It was
the rude and thoughtless behaviour, and the behaviour of other
groups of
teenagers.
Response to the Complaint
Mr Johnson was at no point 'forced' to stay inside his caravan at night, he
was simply requested to refrain from making excessive
noise, and moving around
the park after 10pm with groups of other teenagers. Again this is in line with
our Park's policy, local
council noise restriction regulations legislative
requirements and to ensure the peace and well-being of our other guests.
In relation to the letter Mrs Johnson advises she sent, no such letter was
received until the discrimination complaint paperwork was
received. We have
chosen to refund the Johnsons' deposit and cancel their next visit due to the
number of complaints we have received
specifically mentioning behaviour by their
children, and their children's friends. We have lost several long-term guests as
a result
of this behaviour. As such we most certainly do not feel that any sort
of compensation should be payable to Mr Johnson.
We regret that Mr Johnson feels he has been discriminated against, but we do
not feel this to be the case, and as such no apology
will be forthcoming.
We submit that we have a valid and justifiable reason requiring all groups,
including teenagers not to wander around the Park after
dark, but especially
after 10pm, because we feel not to do so would cause undue safety risks and
threaten the peace, safety and well-being
of our guests as a whole.
Unfortunately it was the teenagers causing the difficulties. If it was (sic)
groups of older people, the
same rules would still apply.
We submit that a balance of competing interests needs to occur, that of the
rights of young people to congregate with their friends
and make noise, and that
of the safety and well-being of all of the remaining guests, and neighbouring
residences, along with our
duty of care to all of our guests.
This statement is regarding a conversation between Phillip Fordyce, Manager
of Ocean Beach Holiday Park and Ryan Johnson, - guest
of Ocean Beach Holiday
Park that took pace on the 11 th January 2008. As a result of their continued
defiance to park rules and undue
noisy or unruly behaviour during their last
stay, the family has been advised not to make further bookings in our park.
There had
been a number of complaints against them during this stay. Their 2009
booking was forthwith cancelled and a full refund was forwarded.
The letter of
complaint that Mrs Johnson supposedly forwarded to the Park had to date not been
sighted or received until the discrimination
paperwork arrived.
Ryan Johnson stated that the conversation took place at about 9pm, however I
did not go out into the park, until after 10pm that night,
as our noise curfew
is not in place until 10pm.
Upon seeing Ryan Johnson with several other teenagers I approached the group
and advised them to stay within the park and return to
their sites. Ryan
questioned this request and I explained to him that it was in response to
several complaints received regarding
groups of teenagers making excessive noise
while moving around the park at night after 10pm. Agreements that were in place
for several
long-term casual van sites in the park have since been terminated
due to the behaviour of the teenagers who were part of the group
with Ryan. I do
not believe he was "targeted". He was the only one who questioned my
instructions when addressing the group.
Ryan left the area and returned shortly afterwards with his parents. They
also questioned our policy and procedures regarding teenagers
and the 10pm
curfew. I stated that teenagers were not to congregate in the parks public areas
after 10pm, but at this time they needed
to return to the respective sites and
keep their noise to an acceptable level. This is not a new rule and forms part
of the Park
Rules as displayed on the back of the park map. I also relayed to
them the number of complaints being received daily about the teenagers'
movements and noise at night. While I was talking with Mr & Mrs Johnson,
Ryan kept interrupting stating that he knew some of
the locals, Ryan was using
profanity which Philip took offence to and asked that he stop swearing. Mr &
Mrs Johnson said they
were paying a lot of money to stay here and relax, I
replied back to them advising there were lots of people staying here trying
to
enjoy the park but with the teenagers being so disruptive and noisy it was not
possible for anyone to relax.
The guests occupying the site across from the Johnsons had also made several
complaints specifically about the family.
Vanessa Fordyce - Manager of Ocean Beach Holiday Park and Luke Smith - Senior
Security Officer both visited the Johnson site on the
12 th January 2008 at
approximately 6pm to speak with Ryan's parents regarding the ongoing complaints
relating to their site.
In January 2008 there was an apparent elevated amount of aggressive behaviour
being shown towards our park guests by the locals both
on the beach and at the
local skate park. This was happening at night and during the day. This was the
reason that we were advising
all teenagers to remain within the park after dark.
As there had been alleged assaults on other guests staying at the park, I was
only being mindful of my duty of care and responsibility (as manager) to all
guests.
In conclusion, I do not believe that any person especially Ryan was targeted in any way. I was concerned for the safety of all young persons who were guests of the park at the time. If my concern was misinterpreted as discriminatory, I regret this but as stated previously - my actions were only taken in "my duty of care" of all guests.
I was not present when Philip was talking to the Johnsons on the 11 th
January 2008, however, I could see them from our apartment
window, which is
above the reception and security area.
Listed below are the Security, Reception and Night duty log book entries:
Philip advised me that he had been approached by another park guest, who
informed him of an alleged assault involving a teenage boy
staying on the
Johnson site and his daughter. The father of the girl involved asked that we not
take the allegations any further
for fear of retribution.
Summary of Ocean Beach Log Book Entries
29.09.07 during day-time patrols by Philip, multiple teenagers were seen at
the cabin (PLC5) foul language was heard and we do not
believe an adult was on
site. Vanessa rang Darleen Johnson who was not on site at the time she claimed
that they were 4X4 driving
at Stockton and would not return to the park until
later that evening.
29.09.07 - 10.40pm; the occupants of this cabin (PLC5) without compliance,
patience wearing very thin, approx 6 teenagers in cabin
again no adult present.
4.01.08 - verbal complaints about teenagers on site 364 (the agreement for
this site with the park has since been ended) including
Ryan and Jessie Johnson.
12.01.08 - Luke (Senior Security Guard) and Vanessa (Park Manager) went to
Site ES16 at approximately 6pm to talk to Mr & Mrs
Johnson regarding the
following issues; behaviour of the teenagers as we had received several verbal
complaints about the noise from
their site, we discussed the group of teenagers
(Ryan and Jessie were part of this group) constantly wandering the park at night
well after 10pm as these areas are directly across the road from cabins and
caravan sites where people were trying to enjoy some
peace and quiet. We advised
them that the beach is an area where teenagers can congregate after 10pm if they
wanted to but please
be aware of the 'local' element as it had escalated
recently. If the teenagers chose to meet on the beach then they need to move
through the park both to and from the beach quietly.
Given that we also received several verbal complaints via reception relating
to the above log-book entries we had to take the matter
seriously and ask the
teenagers to return to their sites or move to the beach at 10pm. One evening
Philip and I did witness some
fathers rounding up their children at 11pm, this
is too late as our curfew is 10pm.
Our park is aimed at families, many of whom have young children who go to bed
well before 10pm. These guests put up with noise before
this time but are
entitled to respect of the rules once the time is up.
We chose to take no further action after the September incidents, giving the
Johnson family the benefit of the doubt. When I went
back through the log-books
and put the September incidents together with the Christmas incidents it became
clear to me that the Johnson
family show no respect for our park rules or other
park guests right to quiet enjoyment of their holiday. They show no respect
towards
the Security team or management of the park.
We are a very large park holding up to 4000 guests during our peak times and
we expect respect towards Security and other park guests
to be observed at all
times.
On the night of the incident when I was discriminated against based on my age
I was not with a group of teenagers as stated by the
managers, when in fact I
was only going to meet a girlfriend and we were going on a quiet walk to the
beach at approximately 9:00pm.
There were no other teenagers around me or groups
of teenagers as stated by the managers of the park.
I have included a statutory declaration by an independent witness who saw the
manager stop me. This witness noticed the aggressiveness
and forceful nature Mr
Fordyce used to stop me from proceeding to the beach. I have also included a
(sic) statutory declarations
from other parties who stayed at the caravan park
during the Christmas holidays 2007-2008.
The park managers have in their response to my complaint made accusations
regarding certain teenagers or groups of teenagers and there
(sic) behaviour.
The park managers have listed certain incidents has (sic) happening at the park
during my holiday but none of the
alleged complaints are in writing and as such
I believe they have been made up from a log of incidents related to other
teenagers
not related to me or my brother. I cannot be held responsible for the
actions of other teenagers I do not know the alleged teenagers
and cannot be
held responsible for there (sic) attitude to park management. I feel the
management has added there (sic) grievances
with other teenagers not related to
me in there (sic) submission to the anti discrimination board to justify there
(sic) discrimination
of any and all teenagers staying at there (sic) park. I
understand that running a caravan park of over 4000 people would be difficult
but blaming me for the actions of other teenagers I feel is not justified or
warranted.
I have stayed at the park on many occasions since I was a young child with my
parents and I have enjoyed myself and obeyed the park
rules, but after the
incident I had with the park manager I notice a different attitude by the
security guards towards teenagers
at the park. When I asked one of the security
guards why the management was treating teenagers different (sic) this year I was
told
that the caravan park had been sold to NRMA and the NRMA had decided to
implement some changes to make the park more appealing to
retired people and
parents with small children and as such no teenagers was (sic) allowed to walk
around after 9:00 without a parent
or adult present I understand that there has
(sic) to be rules in all caravan parks as my parents have taken me to
approximately
30 caravan parks but I must say I have never experienced the
attitude that was shown towards teenagers at the Ocean Beach Caravan
park for
Christmas holidays 2007-2008.
The managers of the park have said in there (sic) submission that they
stopped people going to the beach that night due to problems
with the locals on
the beach, but on the might in question when I was stopped from going to the
beach because I looked like a teenager
many families and other adults were
walking past the manager and myself on there (sic) way to the beach without the
manager warning
them of any problems at the beach. I believe the managers (sic)
actions were discriminating because I looked like a teenager and
the caravan
parks new management had implemented new rules to stop teenagers walking around
by themselves after 9:00pm.
The management has made accusations regarding my parents (sic) caravan site
at the park but the only thing that happened during our
holidays at our site was
a noise complaint from a retired couple in the van opposite us due to my father
watching the cricket in
our annex at approximately 10:00pm one night and this
was sorted out by moving the TV into our caravan which allowed the retired
couple to go to bed at approximately 8:00pm without hearing our TV.
After much investigation and contacting other families who stayed at the park
during the Christmas holidays I was able to find out
who was responsible for one
of the incidents the park tried to blame on me or my brother the allegation in
question follows:
The managers made an allegation regarding an assault this is from a statement
made by Vanessa Fordyce: "Philip advised me that he
had been approached by
another park guest involving a teenage boy staying on the Johnson site had
assaulted his daughter".
This allegation is totally false and untrue as the child who committed the
alleged assault Daniel Kubbere was staying as a guest on
site 364 with a family
by the name of Palmer and I have included a statutory declaration from Mrs
Palmer regarding the alleged incident
as been (sic) nothing more than a dispute
between two long term friends. This incident has nothing to do with me and I
take offence
that the caravan park have tried to implicate me in something I had
nothing to do with what so ever (sic).
In finalizing (sic) my response I believe the attitude of the caravan park
towards teenagers has changed since the new owners took
over and as such there
(sic) actions towards myself and other teenagers staying at the park is a new
strategy by the new owners trying
to deter guests who have teenage children from
staying in there (sic) park.
a)Darleen Johnson;
b)Betty (Elizabeth) Camarsh;
c)Carol Palmer; and
d)Anthony Johnson.
Section 102 Tribunal Proceedings
The applicant complains that he was discriminated against on the ground of
age in the provision of services to him. He complains that
during the period of
complaint, which is between 11 and 21 January 2008, 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
at the
relevant time.
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 that teenagers were not allowed to walk around by
themselves after 9pm unless they had an adult
present with them.
In a later conversation with his parents, the applicant states that Mr
Fordyce said that new rules were implemented regarding teenagers.
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.
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...
a)Ryan Johnson;
b)Jesse Johnson;
c)Samuel John Couttit;
d)Conrad Moores; and
e)Jessica Hugo
Substantive Tribunal Proceedings
a)Ryan Johnson
b)Darleen Johnson
c)Betty Camarsh
d)Phillip Fordyce
a)Guest Information Sheet;
b)Ocean Beach Holiday Park Map;
c)Complaint dated 8 January 2008;
d)Complaint dated 10 January 2008;
e)Diary extract for 4, 5 and 6 January 2008;
f)Diary extract for 29 January 2008;
g)Security Log for 11 and 12 January 2008;
h)Letter from Ocean Beach Holiday Park to Mrs Darleen Johnson dated 1
February 2008.
a)He and his wife, Vanessa, are the managers of the Ocean Beach Holiday Park and have been so employed since February 2004;
b)The Ocean Beach Holiday Park accommodates up to 4000 guests during the peak season and caters for persons of all ages, including families with young children as well as older persons;
c)Since 2004 there has been a curfew between 10pm and 8am and guests are notified of this curfew as it is stated in the guest information sheet as "Quiet time: Please be respectful of the enjoyment of others within the park by restricting noise form television, music and social gatherings between the hours of 10:00pm and 8:00am";
d)The curfew applies to all guests, regardless of age. It is the only practical means of controlling noise restrictions;
e)In the past few years there have been a number of complaints about excessive noise and teenagers' behaviour which has prompted management to enforce the 10pm curfew;
f)Management has also increased security and has more recently, patrolled the grounds of the holiday park;
g)Incidental issues have also arisen with local teenagers being overly aggressive and threatening park guests on the holiday park grounds as well as on the beachfront of the holiday park and at the local skate park. In order to prevent this occurring, management has encouraged guests to return to their campsites after dark, but especially by 10pm;
h)A number of complaints have been made about inappropriate behaviour by groups of teenagers, including a verbal complaint on 11 January 2008 about site ES16;
i)On 11 January 2008 he had a conversation with Ryan Johnson but the conversation did not take place until after 10pm because he was not patrolling the grounds until the curfew commenced;
j)Ryan Johnson was in the company of several other teenagers and he approached the group and asked its members to stay within the holiday park grounds and return to their campsites;
k)He explained to Ryan Johnson that he had received complaints about teenagers making excessive noise while moving through the holiday park grounds;
l)Mr Johnson then left the area and returned shortly thereafter with his parents who then questioned him about the park's policies and procedures regarding the curfew;
m)Ryan Johnson was not forced to stay inside his caravan at night but he was requested to refrain from making excessive noise and from moving around the holiday park grounds after 10pm with groups of other teenagers;
n)The request is consistent with the holiday park's policy, local council noise restrictions and attempts to ensure peace and well-being of other guests;
o)He denied being aggressive to Ryan or that he harassed him;
p)On 1 February 2008 Vanessa Fordyce wrote to Mrs Darleen Johnson cancelling
the reservation for the following December/January in
the following terms:
We regret that we are unable to keep your holiday plans with us for next
December/January. Due to the number of complaints received
during and after your
last stay with us regarding behaviour, abusive language and fighting by
teenagers associated with your site.
Our park is aimed at families with young children and we have received
complaints from parents who find such behaviour offensive and
frightening to
their small children.
"Kids continually moved on for noise most went to beach. Although noise is
still travelling. Hope it will get cold for them so they
go to bed. P5 told
multiple times to lower noise, without compliance. Patience with them is wearing
thin.
Submissions
Findings and Reasons
Age Discrimination
(1) A person ("the perpetrator") discriminates against another person ("the
aggrieved person") on the ground of age if, on the ground
of the aggrieved
person's age or the age of a relative or associate of the aggrieved person, the
perpetrator:
a)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 is not of that age or age group or who does not have such a relative or associate who is that age or age group, or
b)...
(2) For the purposes of subsection (1)(a), something is done on the ground of
a person's age of it is done on the ground of the person's
age or age group, a
characteristic that appertains generally to persons who are that age or age
group or a characteristic that is
generally imputed to person who are of that
age or age group.
(3) ...
1)It is unlawful for a person who provides, for payment or nor, goods or
services to discriminate against another person on the ground
of age:
a)by refusing to provide the other person with those goods or services, or
b)in the terms on which the other person is provided with those goods or
services.
2)...
When the comparator is hypothetical, the first question cannot be answered as
a simple, stand-alone question: the way a hypothetical
comparator would be
treated cannot be assessed separately from asking what the ground or grounds for
treatment of the applicant were.
If an applicant was Chinese and was refused
service (or denied promotion, or given menial duties etc), we cannot say how the
hypothetical
comparator, who is not Chinese, would have been treated in the same
circumstances. The only fact that it is possible to determine
is the ground or
grounds on which the applicant was actually refused service. Only when this is
known can we say whether a hypothetical
comparator would have been refused
service in the same circumstances. The applicant could, for example, have been
refused service
on perverse or irrational grounds, or solely on a ground
unrelated to race: it is not until the ground for the actual treatment is
known
that it is possible to say whether a hypothetical person not of the applicant's
race would have been treated differently.
In Aldridge the Appeal Panel said that "if there is no relevant differential
treatment it is unnecessary to consider the issue of
causation". In the case of
a hypothetical comparison, an extension of this might be: `but there is no basis
on which to assess whether
there would have been differential treatment until
the cause for the actual treatment is known'.
This is not to disagree with the analysis in Aldridge, but to explain why in
this matter, and we suggest in many others where the
comparator is hypothetical,
the two questions as to "less favourable treatment" and "on the ground of race"
might be answered as
part of the same reasoning exercise.
... the central question will always be - why was the aggrieved person
treated as he or she was? If the aggrieved person was treated
less favourably
was it 'because of', 'by reason of', that person's disability? Motive, purpose,
effect may all bear on that question.
But it would be a mistake to treat those
words as substitutes for the statutory expression 'because of'.
136 Briginshaw is a case about the standard of evidence required to meet the
burden of proof. It is doubtful whether Briginshaw needs
to be incanted as
ritually as it is in anti-discrimination law. See generally de Plevitz, 'The
Briginshaw 'Standard of Proof' in
Anti-Discrimination Law: 'Pointing with a
Wavering Finger', (2003) 27 Melb Uni LR 308. See also the recent decisions,
Qantas Airways
Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and
Granada Tavern v Smith [2008] FCA 646 at [88]- [90].
The correct approach to the standard of proof in a civil proceeding in a
federal court is that for which s 140 of the Evidence Act provides. It is an
approach which recognises . . . that the strength of the evidence necessary to
establish a fact in issue on the
balance of probabilities will vary according to
the nature of what is sought to be proved - and, I would add, the circumstances
in
which it is sought to be proved. [Branson J at [139] ]
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.
Victimisation
(1) It is unlawful for a person ("the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a
detriment by reason of an allegation made by the person if the
allegation was
false and not made in good faith. The questions of law turn, to Matter was
remitted on victimisation and remedy (set
out orders)
Relief
....damages for such matters as injury to feelings, distress, humiliation and
the effect on the complainant's relationships with other
people are not
susceptible to mathematical calculation...To ignore such items of damage simply
because of the impossibility of demonstrating
the correctness of any particular
figure would be to visit an injustice upon the complainant by failing to grant
relief in respect
of a proved item of damage.
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