Trevanion v Wyangala Country Club Ltd (No 2) CaseBase | [2013] NSWADT 27 | BC201255332 TREVANION v WYANGALA COUNTRY CLUB LTD (No 2) BC201255332 Unreported Judgments NSW · 104 Paragraphs New South Wales Administrative Decisions Tribunal M Chesterman DP, D Kelleghan Non-Judicial Member and J Mcclelland Non-Judicial Member 21 And 22 January, 5 February 2013 [2013] NSWADT 27 Headnotes Discrimination on grounds of homosexuality — direct discrimination — differential treatment — causation. (CTH) Anti-Discrimination Act 1977 Evidence Act 1995 Brown v Bourke Bowling Club [2012] NSWADT 248 Burns v Laws (EOD) [2008] NSWADTAP 32 Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Edwards v Bourke Bowling Club Ltd [2000] NSWADT 31 Hollows v Macquarie University [2009] NSWADT 23 IW v City of Perth (1997) 191 CLR 1 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis v New South Wales (2003) 217 CLR 92; [2003] HCA 62 Qantas Airways v Gama [2008] FCAFC 69 Trevanion v Wyangala Country Club Ltd [2012] NSWADT 257 Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49 M Chesterman DP, D Kelleghan Non-Judicial Member and J Mcclelland Non-Judicial Member. REASONS FOR DECISION Introduction [1] These proceedings stem from a complaint made under the Anti-Discrimination Act 1977 ('the AD Act') on 8 October 2012 by the Applicant, Carl Gary Trevanion, to the Anti-Discrimination Board ('the ADB'). Initially, it took the form of a complaint that he had sent on 23 August 2012 to the Australian Human Rights Commission alleging discrimination on the ground of sexual preference in his employment by the Respondent, Wyangala Country Club Ltd ('the Club'). It was on the advice of this Commission that Mr Trevanion asked the ADB to deal with the complaint. [2] Initially and in a follow-up letter to the ADB dated 11 October 2012, Mr Trevanion's complaint was based on alleged harassment and bullying by employees of the Club. But in a further letter to the ADB dated 30 October 2012 he added an allegation of discrimination in the provision of accommodation, based on a letter dated 26 October 2012 that he had received from the Club's Board of Directors (hereafter 'the Board'). [3] In this letter, the Board advised him that on the previous day it had resolved, as from 1 December 2012, to terminate two agreements that the Club had entered into. The first of these was a licence agreement dated 8 May 2011 ('the Licence Agreement') with a company, Garosnic Pty Ltd, of which Mr Trevanion was the sole director and shareholder. It permitted this company ('the Licensee') to occupy an area within the Club's premises for the purpose of running a bistro. The second was a rental agreement, made orally, permitting him to occupy residential premises owned by the Club for as long as the Licence Agreement remained in force. Page 2 of 14 Trevanion v Wyangala Country Club Ltd (No 2), [2013] NSWADT 27 [4] On 29 November 2012, Mr Trevanion applied to the Tribunal for an interim order staying the termination of the Licence Agreement. This application was heard and determined on 30 November 2012. [5] In its decision (Trevanion v Wyangala Country Club Ltd [2012] NSWADT 257), the Tribunal stayed the termination of the Licence Agreement pending further order of the Tribunal. It made no mention of the accompanying rental agreement. [6] The Tribunal also amended Mr Trevanion's complaint, of its own motion, to include the period up to 26 October 2012. It ordered that the hearing of the complaint be expedited and indicated, with this in mind, that the parties should request the President of the ADB to refer the complaint formally to the Tribunal. [7] This reference was made on 18 December 2012. The President's Report described the complaint as 'homosexuality discrimination in the provision of goods and services and accommodation'. [8] Because the hearing of the complaint was expedited, the parties did not file Points of Claim or Points of Defence in accordance with the normal practice. The parties also filed witness statements. [9] The hearing of the complaint took place before us at Cowra on 21 and 22 January 2013. Mr Dalzell of counsel appeared for Mr Trevanion and Ms Roberts, of Garden & Montgomerie, solicitors, for the Club. Mr Dalzell tendered statements signed by nine witnesses, together a 'tender bundle' comprising minutes of meetings of the Board and other related documents. Ms Roberts tendered four witness statements. This material was admitted. [10] The orders sought by Mr Trevanion were orders to the effect that the Licence Agreement be reinstated, that his rights under his rental agreement should be reinstated and that he should be compensated for distress sustained on account of the termination of the Licence Agreement. [11] Although in addition to Mr Trevanion fifteen witnesses in all attended for cross-examination (twelve of whom were called or summonsed by Mr Trevanion and three were called by the Club), we were able to complete the hearing within the time allocated. We are grateful to the parties' representatives for the efficient way in which they presented their evidence and argument. [12] We have decided, after considering this evidence and argument, that the complaint must be dismissed. Our reasons follow. Outline of facts [13] The Licence Agreement. During April 2011, in response to a newspaper advertisement seeking expressions of interest, Mr Trevanion sent an application for the position of 'contract caterer' with the Club. Following an interview, he was appointed to this position and on 8 May 2011 he signed the Licence Agreement on behalf of the Licensee, Garosnic Pty Ltd. [14] Under the Licence Agreement, the Club granted to the Licensee a licence to occupy the kitchen and other relevant public areas within the Club premises, but without conferring a right of exclusive possession. It also authorised the Licensee to use these areas for the purpose of running a bistro. It left the choice of dishes to be offered to the discretion of the Licensee, except that the menu was required at all times to include 'hot chips, children's meals (priced accordingly) and any such other menu item as is reasonably requested by' the Club. The Licensee was required to pay a licence fee at a commencing rate of $15.00 per week. [15] Under cl 4, the duration of the licence was stated to be from 30 April 2011 to 29 April 2012. This clause also stated that if the Licensee wished to renew the licence for a further term of 12 months, it was required to notify the Club on or before 29 January 2012. The Club reserved the discretion to agree or refuse to renew the licence. [16] Clause 13.2 of the Licence Agreement stated that either party could terminate the licence on one month's notice 'without the necessity of proving or showing any breach by the other party. [17] It is useful to record here that by a letter dated 20 March 2012 to the Board, Mr Trevanion purported to exercise what he described as his 'option to renew' his contract. The receipt of this letter was acknowledged in the minutes of a Board meeting held on 29 March 2012. It does not appear that the Board ever reached a decision regarding this request by Mr Trevanion. [18] The menu at the restaurant. When applying to the Club, Mr Trevanion made it clear that if successful he wished to offer Thai food at the restaurant. When it opened for business in April or May 2011 under the name 'The Bamboo Restaurant', its printed menu included 77 Thai dishes. These were supplemented, as required in the Licence Agreement, by four items described as 'Well Known Dishes' (these comprised steak, chicken, seafood or fish with chips and vegetables), and by a 'Kids Menu' and a 'Dessert Menu'. [19] A copy of the menu annexed to Mr Trevanion's witness statement shows the handwritten addition of a few further dishes on the page headed 'Well Known Dishes'. These included items such as 'pizza variety' and sausages with chips. [20] Disputes regarding the restaurant. It is clear from the evidence of a number of witnesses that the type and quality of the food provided at the restaurant was greatly appreciated by many Club members and their guests. It was also clear that not everyone was happy with the predominance of Thai cuisine or with the standards of food preparation and service maintained at the restaurant. This dissatisfaction prompted a number of reactions among the members and directors of the Club, and also on Mr Trevanion's part. They include the following. Page 3 of 14 Trevanion v Wyangala Country Club Ltd (No 2), [2013] NSWADT 27 [21] During September 2011, a member of the Club opened a steakhouse near the Club premises. For a period of time, one of the Club's part-time bar staff, Lisa Moncrieff, also worked at the steakhouse. According to Dennis Gosper, who was then and remains a member of the Board and the Club's treasurer, this appeared to cause the Club's restaurant to lose a good deal of business and prompted the Board, at a meeting on 26 October 2011, to pass the following resolution: 'The caterer is to be requested to provide more "Aussie" meals and revise the menu. Greg Denny is to the liaising.' [22] Mr Denny, who also was and remains a member of the Board, testified that when he liaised with Mr Trevanion as requested, Mr Trevanion initially said that the 'Kids Menu' provided enough non-Asian food, but later added some non-Asian dishes to the menu. [23] The minutes of a Board meeting on 25 January 2012 contain the following entry: 'Complaints about kitchen: Gary Trevanion (contract caterer) attended the meeting in response to various complaints received. He explained the causes of/reasons for the various complaints and said he will address the same. The matter will be reviewed.' There was no further evidence explaining this entry. [24] Between November 2011 and January 2012, Robert Davis and Tim Redman, who also were Board members then and are on the Board now, drafted and distributed among Club members a survey seeking their opinions about Club facilities. Mr Davis said in his witness statement that in answering two questions about the restaurant, the 'vast majority' of the respondents made 'negative comments' about it, in particular about 'the time it took for food to arrive, food being cold or burnt, and poor quality food'. According to Mr Redman's testimony, 21 out of the 25 responses contained negative comments about the restaurant, but when Mr Trevanion attended a Board meeting on 29 March 2012 to discuss the survey, he described it as 'not valid' and as 'rubbish'. [25] The minutes of this Board meeting record a resolution, which was seconded by Mr Davis, that 'Mr Trevanion should be given permission to conduct a survey of bistro clientele'. Mr Trevanion did this between 6 and 9 April 2012 (an Easter long weekend), employing a waitress engaged by him to read out 11 questions that he had drafted to customers of the restaurant and write down their answers. He said that one out of every four customers was asked to participate. Copies of the 25 completed forms were admitted into evidence. Almost all the answers displayed a high level of satisfaction with the range of dishes available and with the quality of the food and the service. [26] Mr Davis and Mr Redman claimed in their witness statements that the restaurant staff selected customers who to their knowledge were likely to give favourable answers and that it would have been difficult for the selected customers to convey their true opinions. We take note of these claims only for the purpose of illustrating the degree of contention within the Club about the quality of the restaurant, not as evidence tending to support their truth or reliability. [27] According to the minutes of the Board meeting on 29 March 2012, the Board had received correspondence (apparently from eight unnamed Club members) advising that a petition about 'the kitchen' was being circulated. The papers maintained by the Board and admitted into evidence included a petition signed by 69 members, bearing the handwritten date 'April 2012'. It is not clear whether this petition is the one referred to in the minutes. [28] The text of this petition commenced with a 'plea' for the current arrangements regarding the Club's bistro to be changed. It then alleged that the number of members and guests attending the restaurant had 'severely dropped' since May 2011 and made a number of specific complaints relating to the types of food available and the quality of the food and service being provided. The signatories to the petition identified themselves and some of them added individual criticisms. [29] In his witness statement, the then President of the Club, Joseph Thompson, claimed that this petition was 'a bit "suss"'. He added that he believed that 'the cover letter on the petition was different to the cover letter originally presented to people who were asked to sign the document', that 'in some situations wives have signed for husbands' and that 'people have signed who were not actually at the club at the time'. Once again, we take note of these claims only for the purpose of illustrating the degree of contention within the Club about the quality of the restaurant, not as evidence tending to support their truth or reliability. [30] In oral evidence, Mr Thompson claimed also that some people were 'harassed' into signing the petition. This claim was corroborated in a witness statement provided by a former member of the Club, Glenn Burrows, who was not required for cross-examination. Mr Burrows stated that he signed the petition in order to 'stop being pressured by the bar staff'. [31] The identity of the instigator(s) of this petition was the subject of a number of questions put to witnesses. In our opinion, it is not a matter of relevance in these proceedings. [32] The minutes of a Board meeting on 26 April 2012 record a resolution that a meeting was to be held with Mr Trevanion on 3 May 'to discuss menu'. Mr Gosper testified as follows: (a) he attended that meeting (which was not a Board meeting) along with Mr Redman, Mr Thompson, Mr Trevanion and 'probably' Robert Savell, who was then a director; (b) when asked if he would add steak to the menu, Mr Trevanion replied that it already was on the menu; (c) in fact, steak was not on the written menu, but was on a noticeboard in the restaurant; (d) after the meeting, Mr Trevanion added it to the written menu. Page 4 of 14 Trevanion v Wyangala Country Club Ltd (No 2), [2013] NSWADT 27 [33] The minutes of the Board record that at a special meeting on 23 August 2012 it considered a complaint that Mr Trevanion, with support from Leesa Priest, a Club member, had made about Ms Moncrieff. Ms Moncrieff and another employee, Tim Stevens, ran the bar at the Club's premises. The meeting on 23 August was attended by these four people. [34] The ground of the complaint made by Mr Trevanion was that Ms Moncrieff had made very critical remarks about the food at the restaurant to Ms Priest. Mr Trevanion maintained in his evidence that Ms Moncrieff wished to divert customers from his restaurant to the neighbouring steakhouse, where she had been employed. The Board decided to convey to Ms Moncrieff a written warning that she was expected to carry out her duties in a professional way and that if she failed to do so her employment might be terminated. A letter to this effect was subsequently sent to her. Mr Gosper said in his witness statement that one of the reasons why the Board did not decide on 23 August to terminate her employment was that in one aspect of her criticism of the food 'she may have been right'. [35] On 26 September 2012, a form of petition, signed by 26 Club members, was presented to the Board requesting that at the forthcoming Annual General Meeting of the Club, which was to be held on 7 October, a number of specified matters should be discussed. These included 'the resigning of the Bamboo Restaurant's new contract for a further 12 months'. [36] Notwithstanding the observation by Mr Gosper to which we have just referred, he included a paragraph praising Mr Trevanion's performance as the Club's cook in the financial report that he delivered to the Annual General Meeting. [37] On or about 8 November 2012, a requisition signed by 70 Club members was presented to the Board, calling on it to convene an Extraordinary General Meeting to reconsider the decision to terminate the Licence Agreement. [38] The behaviour of Mr Stevens and Ms Moncrieff. A great deal of the evidence in this case constituted or related to allegations that these two members of the bar staff of the Club displayed homophobia in their conduct towards Mr Trevanion and that on many occasions this conduct constituted harassment of him. [39] For reasons explained below, the precise nature of this conduct and the extent, if any, to which it was motivated by homophobia are not of direct relevance to these proceedings. This is the case even though it evidently appeared to Mr Trevanion at least, if not also to some of the witnesses called by him, that these matters were of prime importance. [40] The existence, since early 2012 at least, of bad blood between Mr Stevens and Ms Moncrieff, on the one hand, and Mr Trevanion, on the other, was not disputed. It is sufficient to refer to the following evidence: (a) A statement in the minutes of the special Board meeting on 23 August 2012 (dealing with Mr Trevanion's complaint against Ms Moncrieff) that 'During the meeting Tim Stevens … admitted he hated "the cook" (Gary Trevanion) and that he wanted him to leave the Club'. (b) A entry on Facebook posted by Mr Stevens on 7 January 2012, stating the following with reference to Mr Trevanion: 'yea rite, no just get lisa to poison him, he's one less cockhead I'd like not to have to look at again.' (c) Mr Stevens's and Ms Moncrieff's explicit acknowledgments in the witness box that they did not like Mr Trevanion. (d) Allegations by Mr Trevanion in his application (dated 23 August 2012) to the Australian Human Rights Commission, to the effect that Mr Stevens and Ms Moncrieff had orchestrated continual harassment of him since July 2011 and that he feared for his personal safety because their behaviour was becoming 'more unstable and unpredictable'. (e) Mr Trevanion's statement in his complaint (dated 9 October 2012) to the ADB that the outcome desired by him was that Mr Stevens and Ms Moncrieff should be dismissed from their duties at the Club and should 'never set foot in the Club again'. (f) The fact that when on 11 October 2012, the Board, having investigated an incident involving Mr Trevanion, Mr Stevens and Ms Moncrieff, voted to 'force' these three people to attend mediation, Mr Trevanion refused to do so. He claimed that 'matters had gone too far'. [41] Ms Moncrieff stated in oral evidence that the reason for her dislike of Mr Trevanion was that during or soon after May 2011, while she was working for him as a waitress, he accused her of stealing money from the till. She said that when she asked him to discuss the matter further with her and with Mr Gosper (whom she had told about this accusation) he denied having ever made such an accusation. In his witness statement, Mr Gosper corroborated this account, except that on his account he alone met with Mr Trevanion, who said to him that it had 'all been rectified' and had been 'a problem with the till'. [42] Ms Moncrieff also stated that the fact that Mr Trevanion was homosexual had no effect on her relationship with him. Page 5 of 14 Trevanion v Wyangala Country Club Ltd (No 2), [2013] NSWADT 27 [43] In oral evidence, Mr Stevens ascribed his dislike of Mr Trevanion to this accusation that Mr Trevanion made against Ms Moncrieff, but then withdrew and to the fact that Ms Moncrieff was, and still is, his partner. He stated also that the fact that Mr Trevanion was homosexual was of no relevance in this regard. [44] Mr Trevanion's testimony contained a number of allegations that Mr Stevens and (less frequently, it would seem) Ms Moncrieff made derogatory remarks about him, in public and in his presence, that included references to his homosexuality. He said, for instance, that they referred to him more than once as a 'poofter' or a 'poofter cook'. An allegation to this effect about Mr Stevens was included in Mr Trevanion's application to the Australian Human Rights Commission. In his subsequent complaint to the ADB, he described three more instances, each involving comments made in public and in his presence by Mr Stevens. [45] There was some evidence tending to substantiate these allegations made by Mr Trevanion against Mr Stevens. A claim by him to have described some of Mr Stevens's remarks to Mr Gosper received corroboration from Mr Gosper. Mr Gosper added that he did not refer the matter to the Board because Mr Trevanion did not put his complaint into writing. In her statement, Ms Preest substantiated Mr Trevanion's allegation that Mr Stevens referred to him as 'the poofter cook'. In his statement and in cross-examination, Mr Savell stated that at the special meeting of the Board on 23 August 2012, Mr Stevens referred to Mr Trevanion as 'that poof' and 'that fucking poof'. When asked why these epithets were not minuted, he replied that Mr Thompson, who was then responsible for the minutes, would not have wanted to use such language in them. [46] Having regard to this evidence, we find that derogatory remarks made by Mr Stevens about Mr Trevanion, in public and in his presence, did on occasions include references to him as a 'poofter'. We do not make the same finding with regard to Ms Moncrieff. [47] Evidence regarding Mr Trevanion's distress. Mr Trevanion's statement included allegations of a number of events that he believed to have occurred because of hostility towards him amongst members and employees of the Club. They included threatening or abusive phone calls made to him and the deposit of the rotting carcass of a kangaroo outside his residence. He did not furnish evidence indicating who was responsible for these occurrences. [48] A report by Brenda Mansfield, an accredited mental health nurse and counsellor, was tendered and admitted. She stated that Mr Trevanion's experiences while working at the Club and living nearby had caused him to relapse into an earlier depressive condition. Ms Mansfield was briefly cross-examined. Applicable law [49] In the submissions by both parties, it was recognised that four sections of the AD Act are directly involved in these proceedings: namely, ss 4A, 49ZG, 49ZQ and 53. The relevant provisions within these sections are as follows: 4A Act done because of unlawful discrimination and for other reasons If: (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. 49ZG What constitutes discrimination on the ground of homosexuality (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of homosexuality if, on the ground of the aggrieved person's homosexuality or the homosexuality 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 he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person, or … 49ZQ Accommodation (2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of homosexuality: Page 6 of 14 Trevanion v Wyangala Country Club Ltd (No 2), [2013] NSWADT 27 (a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or (b) by evicting the person or subjecting the person to any other detriment. 53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (3) Despite subs (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. [50] All the authorities relied on by Mr Dalzell were discussed in the most recent decision that he cited to us, Brown v Bourke Bowling Club [2012] NSWADT 248. This decision contains useful discussions of three topics on which he addressed us: the onus and standard of proof in discrimination cases, the meaning of 'on the ground of', and the approach to be taken when (as is often the case) there is no direct evidence that 'less favourable treatment' of the applicant was attributable to discrimination engaged in by the respondent. [51] In Brown v Bourke Bowling Club, the Tribunal discussed the first of these topics at [64–66]: 64 The applicant bears the burden of proof in respect of this claim. In Qantas Airways v Gama [2008] FCAFC 69 [at 55] Branson J discussed the standard of proof, referring to what is known as the "Briginshaw" standard. She indicated that "Briginshaw" was about the quality of the evidence not the standard of proof. She stated, "The correct approach to the standard of proof in civil proceedings 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 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." 65 In Burns v Laws (EOD) [2008] NSWADTAP 32 the Tribunal dealt with this issue in relation to discrimination claims. It was noted that "Briginshaw is a case about the standard of evidence required to meet the burden of proof." 66 The Tribunal further considered the "Briginshaw standard" in Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27. The Appeal Panel noted section 140 of the Evidence Act 1995: (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. [52] Subject to the comment that Burns v Laws was a case on vilification, not discrimination in its conventional sense, we agree that these principles are applicable to the present case. [53] At [68–73], the Tribunal in Brown v Bourke Bowling Club considered the meaning of ';on the ground of' in the section of the AD Act (section 7) in which discrimination on the ground of race is defined. This meaning is applicable to the interpretation of section 49ZG. The Tribunal said: 68. .. In the [case of] Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 the Appeal Panel of the Tribunal referred to the decision of Waters v Public Transport Corporation [1991] HCA 49 (1991) 173 CLR 349 where Dawson and Toohey JJ stated, Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). Page 7 of 14 Trevanion v Wyangala Country Club Ltd (No 2), [2013] NSWADT 27 69 In the case of Commissioner of Corrective Services v Aldridge (No 2) [2002] NSWADTAP 6 the Appeal Panel of the Tribunal stated: In our decision of 18 April 2000 we stated that, in relation to the complaint of discrimination on the ground of race, two issues needed to be addressed. Those issues are: Whether the Complainant was treated less favourably than a non-Aboriginal person would have been treated in circumstances that are the same or not materially different (the comparison issue); If so, whether that less favourable treatment was on ground of the race of the Complainant (the causation issue). 70 In relation to the issue of differential treatment the Appeal Panel stated, … differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation. For differential treatment to have occurred in this case, the treatment of Mr Aldridge must have been objectively less favourable than the treatment which was actually afforded to a non-Aboriginal person, or which would have been afforded to a non-Aboriginal person, in the same or similar circumstances. 71 In Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92 at 231 (Purvis) the High Court said that the two elements of direct discrimination, differential treatment and causation must be treated separately and sequentially. In Hollows v Macquarie University [2009] NSWADT 23 (6 February 2009) (Hollows) the Tribunal stated: That approach is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated. 72 In Purvis the court was dealing with similar provisions in the Commonwealth Disability Discrimination Act 1992. It was stated: … 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'. 73 In Hollows the Tribunal noted that: The AD Act uses the words "on the ground of", rather than "because of" but no different meaning is intended. [54] The Tribunal in Brown v Bourke Bowling Club then quoted (at [74]) a passage from the Appeal Panel's decision in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20. The discussion of 'on the ground of' contained in this decision has frequently been cited as authoritative. The passage from Nicholls that was quoted in Brown summarises the Appeal Panel's conclusions on the meaning of this phrase in proceedings involving alleged victimisation under section 50 of the AD Act. [55] In the present context, it is preferable to reproduce the passage in Nicholls (at [19–28]) relating to the meaning of 'on the ground of' in cases of direct discrimination: 19 Possible meanings. There are at least two ways in which courts and tribunals both here and in the United Kingdom have interpreted the phrase 'on the ground of' in relation to complaints of discrimination. The first is the 'but for' test and the second is the true basis or real reason test. One of the differences between the two tests is that the 'but for' test is an objective or strict liability test where the motives or intentions of the alleged perpetrator are not relevant: Bernardi G, "Direct Discrimination in the Disability Discrimination Act", The Australian Law Journal, Vol 76, p 512 at 514. When applying the 'true basis' test, the decision maker may have regard to the perpetrator's motives and intentions: Purvis v State of New South Wales (2003) 217 CLR 92 at 163. Page 8 of 14 Trevanion v Wyangala Country Club Ltd (No 2), [2013] NSWADT 27 20 The 'but for' test. When applying this test the decision maker asks whether 'but for' the particular attribute (sex, race, disability etc) the person would have been subjected to the treatment or conduct … 21 In IW v City of Perth (1997) 191 CLR 1, both Toohey and Gummow JJ saw some utility in the 'but for' test where the alleged discriminator is not an individual but a collection of individuals or a corporate body. In that case, the High Court was considering the disability discrimination provisions of the Equal Opportunity Act 1984 (WA) which is in similar terms to the AD Act including a provision equivalent to s 4A. The City of Perth Council rejected an application for planing approval for a drop in centre for people with HIV. Of the 25 members of council who voted, 13 voted against the application and 12 voted in favour, so that a change in one of the negative votes would have changed the outcome. Of the 13 councillors who opposed the drop-in centre, five were found to have voted on the basis of the 'AIDS factor'. The majority (Brennan CJ, Dawson, Gaudron, McHugh and Gummow JJ) rejected IW's submission that the Council had discriminated against him on the ground of his impairment and dismissed the appeal. Toohey and Kirby JJ dissented. Toohey J said at p 31 that as long as the discriminatory factors were one ground for the decision, even if not the principal ground, the decision would contravene the legislation. His Honour added at p 32 that while the 'but for' has been rejected as a definitive test for causation, it may provide some guidance in circumstances where, as in this case, a corporate body is the decision maker: In the present case each Councillor in the majority determined the outcome by the vote he or she cast. If one or more of these Councillors voted on an impermissible ground, whether or not that was "the dominant or substantial reason" (s 5) that vote determined the outcome because the result would have been different 'but for' the vote of that Councillor. 22 Gummow J came to the same conclusion at p 47: Where, as in this case, the Council, as the executive organ of the City, exercised its powers as responsible authority to refuse the application in circumstances where, but for the ground relevantly animating five of the thirteen majority councillors, the decision would not have been made, s 66K applies. [Emphasis added.] … 25 The 'true basis' test. [In 2003], the High Court had another opportunity to consider the test of causation in relation to complaints of discrimination. In Purvis v State of New South Wales (2003) 217 CLR 92 (Purvis), a student with brain damage was excluded from a high school because of aggressive behaviour including hitting and kicking. The majority (Gleeson CJ, Gummow, Hayne, Heydon and Callinan JJ) decided the appeal in favour of the State of New South Wales on the basis of the differential treatment or comparator element of discrimination (less favourable treatment than the treatment the perpetrator gave or would have given to a person without that attribute). Although interpreting the words 'because of' rather than 'on the ground of' the majority of the High Court explained that the accepted test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus is on the 'true basis' (per Gleeson CJ at 102), 'genuine basis' (Gleeson CJ at 102), or the 'real reason' (McHugh & Kirby JJ at 144) for that treatment. 26 In a joint judgement with McHugh J, Kirby J re-visited passages in IW v City of Perth (1997) 191 CLR 1 referring to the 'but for' test at p 143. It is true that statements of Toohey J and Gummow J in IW v City of Perth might appear to support a ";but for" test in discrimination cases. Kirby J, after referring to the "reasons for the conduct of the alleged discriminator", said that the "but for" test applied by the House of Lords in James and by this court in Banovic and Waters was "the correct test". In IW v City of Perth, however, the references to the ";but for" test were expressed in relation to a decision of a corporate body that was made by its Councillors casting votes. The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. 27 The majority in Purvis (Gummow, Hayne and Heydon JJ) did not refer to the 'but for' test. Their Honours adopted the 'true basis' test and emphasised that the motive or intention of the alleged perpetrator may be relevant. For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect Page 9 of 14 Trevanion v Wyangala Country Club Ltd (No 2), [2013] NSWADT 27 will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, 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" (at p 163) 28 Conclusion. The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant. [56] On the topic of proof of discrimination where no direct evidence is available, the Tribunal in Brown v Bourke Bowling Club said this (at [96–99]): 96 In this matter there is no direct evidence of discrimination on the grounds of race. The issue of what happens when there is no "direct evidence" of less favourable treatment has been discussed in decisions including Dutt v Central Coast Area Health Service (2002) NSWADT 133 (Dutt), Edwards v Bourke Bowling Club Ltd [2000] NSWADT 31 (Edwards) and Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. Where there is no direct evidence of less favourable treatment the Applicant must rely upon inference. 97 In Edwards v Bourke Bowling Club Ltd [2000] NSWADT 31 the Tribunal referred to the authorities and the Tribunal noted that it is open to the Tribunal, having taken into account all the circumstances surrounding the respondent's treatment of the applicant, to make a finding of unlawful discrimination. However such a finding cannot be inferred where more probable and innocent explanations are available on the evidence. 98 In Dutt v Central Coast Area Health Service (2002) NSWADT 133 the Tribunal stated : Experience and commentary indicate that inference is the usual way in which an applicant must establish discrimination in an enquiry or hearing: in The Liberal Promise at p 182, Thornton says that "unless a respondent is particularly obtuse most forms of discrimination are unlikely to be explicit … " It has been observed that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves … The outcome of the case will therefore usually depend on what inference it is proper to draw from the primary facts found by the Tribunal … (in Palmer C., Moon G., and Cox S Discrimination at work: the law on sex, race and disability discrimination LAG, London 1997 at p 34) 99 In respect of drawing inferences to prove less favourable treatment in Dutt the Panel stated that the authorities identify the following considerations: a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from the primary facts; an inference must be reasonably drawn on the basis of primary facts; an inference can be drawn from a combination of facts, none of which viewed alone would support that inference; a fact relied upon as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; the inference must be a logical one, and not supposition; Page 10 of 14 Trevanion v Wyangala Country Club Ltd (No 2), [2013] NSWADT 27 an inference cannot be made where more probable and innocent explanations are available on the evidence. [57] In her submissions, Ms Roberts also relied on these statements of principle. She placed particular emphasis on the Appeal Panel's explanation of the phrase 'on the ground of' in Nicholls and on the limits imposed in the Dutt decision on the drawing of inferences. [58] Subject to the observation that in Dutt and in Edwards, the issue being canvassed appeared not to be whether 'less favourable treatment' occurred, but what was the reason for such treatment, we agree that the statements of principle that we have quoted from these decisions are applicable to the present case. Was homosexuality a 'ground' of the termination of Mr Trevanion's licence? [59] The membership of the Board. The Board's decision to terminate Mr Trevanion's licence, taken on 25 October 2012, was a majority decision. The five directors in favour of termination were Mr Davis, Wayne Hudson, David Morgan, Greg Pomering and Mr Redman. The motion was opposed by Mr Denny and Mr Gosper. [60] We should mention here that the constitution of the Board had changed due to elections held at the Annual General Meeting on 7 October. The most significant change was that Mr Davis, who had been elected as a director in October 2011 but had resigned about eight months later, was returned to the Board and became the President. He replaced Mr Thompson, who did not stand for re-election. [61] From now on, we will describe the Board as constituted before and after these changes as 'the old Board' and 'the new Board' respectively. [62] There was evidence suggesting, with varying degrees of strength, that three out of the five directors comprising the majority voting for termination — namely Mr Morgan, Mr Davis and Mr Redman — held or may have held negative opinions of Mr Trevanion on account of his homosexuality. This was the case even though Mr Trevanion himself, Re-examination, stated that no member of the old Board or the new Board had at any time made derogatory comments to him referring to his homosexuality. [63] Mr Morgan. With regard to Mr Morgan, this evidence was as follows. In her statement and during cross- examination, Ms Preest alleged that on 18 December 2012, while she was at the Club, she saw Mr Gosper limping while leaving the Club and heard Mr Morgan 'yell out' to him 'What's wrong with your arse? Have you been spending too much time with the chef?' Mr Trevanion referred to this allegation in his statement, saying that the words used by Mr Morgan were 'Do you have a sore arse, have you been spending too much time with the cook?' In his statement, Mr Gosper's response to this component of Mr Trevanion's statement was 'I agree that David Morgan said those words to me. I was not offended or upset by the comment.' In cross-examination, however, he said that the words 'sore arse' were not used and that Mr Morgan only asked whether he had been spending too much time with the cook'. In re-examination, he agreed with Ms Roberts that he had prepared his witness statement in haste and had not been able to study Mr Trevanion's statement carefully. [64] Mr Morgan was not called as a witness. Ms Roberts advised that because of the limited time that had been available to prepare for the hearing she had not been able to secure his attendance. Mr Dalzell did not dispute these reasons for his not being called and made no submission that on account of his absence we should draw inferences adverse to the Club's case. [65] We find on the basis of this evidence that Mr Morgan did 'yell out' words to Mr Gosper that included a question as to whether Mr Gosper was limping because he had been 'spending too much time with the cook'. We find that these words, spoken loudly in Club premises, referred in a crude and offensive way to Mr Trevanion's homosexuality. [66] This conduct by Mr Morgan, standing alone, is however insufficient in our opinion to justify an inference that Mr Trevanion's homosexuality constituted one of the 'real, genuine or true' reasons for his decision to vote for the termination of the Licence Agreement. The only other evidence casting light on his reasons for so deciding is his appearance as a signatory to the petition of April 2012 complaining about the food provided by Mr Trevanion and his addition of the comment that he did not like Thai food. The 'more probable' innocent explanation for his decision is furnished by this evidence. [67] Mr Davis. We turn now to the evidence suggesting that Mr Davis held or may have held negative opinions of Mr Trevanion on account of his homosexuality. [68] First, Mr Savell alleged in his statement that (a) 'at various times' when he had been at the Club, he had heard Mr Davis referring to Mr Trevanion 'in a discriminatory way' and (b) that 'on occasion', Mr Davis used words to the effect of 'He's queer and I don't like him.' In oral evidence, Mr Savell did not elaborate on the first of these allegations. As to the second, he said that he was 'pretty sure' that Mr Davis used the words set out in his statement. [69] In his statement, Mr Davis denied using these words with reference to Mr Savell. He was not asked about these particular allegations in cross-examination. Page 11 of 14 Trevanion v Wyangala Country Club Ltd (No 2), [2013] NSWADT 27 [70] In assessing this evidence, we attach significance to the unspecific nature of Mr Savell's first allegation, his uncertainty regarding the second allegation when asked about it in cross-examination, and the fact that Mr Davis's denial was not challenged in cross-examination. Our conclusion is that the evidence does not establish that Mr Davis referred to Mr Trevanion using the specific words alleged by Mr Savell, or in a generally 'discriminatory way'. [71] Secondly, Mr Thompson alleged in his statement that 'in about May or June 2012' the Board 'called in' Mr Davis, together with Ms Moncrieff and Mr Stevens, and 'requested them to cease their discriminatory behaviour against' Mr Trevanion and to stop harassing him. In cross-examination, however, Mr Thompson conceded that the minutes of the old Board's meetings during May and June 2012 did not refer to any such item of business and that he may have been thinking of a meeting on 23 August 2012 at which Ms Moncrieff, with Mr Stevens accompanying her, attended at the Board's request to respond to complaints of harassment that Mr Trevanion had made against her. [72] In his statement, Mr Davis denied being 'called into' or otherwise involved in any such Board meeting during May or June 2012 and offered an explanation for Mr Thompson's recollection of these matters along the lines that Mr Thompson himself gave in oral evidence. The issue was not raised with Mr Davis during cross-examination. [73] In view of Mr Thompson's uncertainty on this matter during cross-examination and Mr Davis's unchallenged denial, we find that the evidence does not support the allegation contained in Mr Thompson's statement. [74] Thirdly, the account of Mr Morgan's 'yelling out' of a question to Mr Gosper given in Ms Preest's evidence included an allegation that this question prompted laughter from Mr Davis, who was sitting at the same table as Mr Morgan. It should be added, however, that during other parts of her evidence, Ms Preest displayed considerable hostility towards Mr Davis. [75] When asked about this matter in cross-examination, Mr Davis suggested that the 'cook' to whom Mr Morgan referred might have been his (Mr Morgan's) wife, because he (Mr Davis) sometimes called his own wife 'the cook'. He added that he was probably present when this incident occurred, but that the question asked by Mr Morgan 'went over my head'. [76] We find that, on the balance of probabilities, Mr Davis was present when this incident occurred and displayed amusement, as claimed by Ms Preest. In so finding, we take account of Ms Preest's hostility towards Mr Davis. Our main reason for preferring her testimony on this matter is the unconvincing nature of the claims by Mr Davis that Mr Morgan might have intended the phrase 'the cook' to mean his wife and that Mr Morgan's remark 'went over his head'. [77] Unlike Mr Morgan, Mr Davis gave evidence, including evidence as to why he voted in favour of terminating the Licence Agreement. His witness statement contained the following explanations: I voted in favour of the termination of the Licence Agreement because I believe that it is in the best interests of the Club that we go back to a bistro instead of a restaurant. My vote had absolutely nothing to do with the sexual preference of the applicant and I have no problem with the fact that the applicant is homosexual … I deny that I have a personal vendetta against the applicant. All I want is for the Club to get past all of the current divisions and hostilities and to change the restaurant back to a pub bistro. The restaurant is just not attracting enough business to the Club. I estimate that on a good night the restaurant would serve up to 35 people, however on other nights it would only seat two or three people. [78] In his statement and during cross-examination, Mr Davis added the following assertions: (a) during a period of about five years before Mr Trevanion took over the restaurant, he used to eat there each week on Friday and/or Saturday evening; (b) he had a meal on one occasion in Mr Trevanion's restaurant, during May 2011, but because his wife was given a badly cooked dish, for which she was required to pay the full price even though she sent it back, he had never eaten there again; (c) during the summer of 2011–2012, as mentioned earlier, he and Mr Redman drafted the survey about the Club's facilities that was distributed to members and elicited negative comments from a large proportion of the respondents; (d) in April 2012, he and his wife both signed the petition asking the old Board to 'reconsider' the contract with Mr Trevanion; (e) on a number of occasions during 2012, members or guests complained to him about the restaurant; (f) he believed that the members' dissatisfaction with Mr Trevanion's performance was a factor contributing to the Club's loss of about $45,000 in its last financial year; (g) the explanation for this was that even though the restaurant was financially independent from the Club, the Club's profits from other services that it provided — such as poker machines and a bar — were diminished when members who did not like the food at the restaurant decided for this reason not to visit the Club frequently, or at all; (h) when the new Board was considering whether to terminate the Licence Agreement, he investigated documents relating to the licence and discovered that Mr Trevanion's payments of small amounts due by way of licence and accommodation fees were in arrears; and (i) he felt very affectionate towards two friends of his who were homosexual. Page 12 of 14 Trevanion v Wyangala Country Club Ltd (No 2), [2013] NSWADT 27 [79] In opposing this claim by Mr Davis that one of his reasons for voting as he did was that a number of Club members were dissatisfied with the food and service in the restaurant, Mr Dalzell drew attention to evidence that many members were entirely satisfied by what the restaurant had to offer. This evidence included (a) the positive answers given by the majority of respondents to the survey of customer satisfaction conducted by Mr Trevanion during April 2002, (b) Mr Gosper's statement to the Annual General Meeting on 7 October 2012, praising Mr Trevanion's performance as the Club's cook, and (c) the requisition of 8 November 2012, calling on the new Board to convene an Extraordinary General Meeting to reconsider the decision to terminate the Licence Agreement. [80] While this evidence shows that Mr Trevanion did indeed have a deal of support from Club members and their guests, it does not undermine Mr Davis's assertion that other members and guests, including Mr Davis himself, were not satisfied with Mr Trevanion's performance. [81] By way of challenge to Mr Davis's assertion that profits from the Club's bar had declined during the period when Mr Trevanion had been running the restaurant, Mr Dalzell tendered copies of recent financial statements of the Club. These showed that bar sales had increased since the previous year (from $401,728 to $436,382), as also had the profits from bar trading (from $88,099 to $98,828). [82] This evidence was of limited significance, however, because the statements were for the year ended 31 May 2012. They gave no indication of the financial fortunes of the Club during the period of nearly five months between this date and the date of the new Board's decision to terminate the Licence Agreement (25 October 2012). It is relevant here that Mr Hudson, another of the directors, said in his statement that although Mr Trevanion's restaurant 'had good patronage early on', from about the middle of 2012 it 'appeared to decline in both numbers and quality'. This assertion was not challenged, as Mr Hudson was not required for cross-examination. [83] Mr Davis's testimony also contained denials of the following allegations: (a) that he had a 'personal vendetta' against Mr Trevanion; (b) that he had continually harassed Mr Trevanion (as was alleged in Mr Trevanion's application for an apprehended violence order against Mr Davis); and (c) that he was 'part of a conspiracy to get rid of the applicant from the Club'. But he made no secret, while in the witness box, of the fact that he did not get on with Mr Trevanion. [84] Evidence from other witnesses did not materially contradict the testimony from Mr Davis that we have just outlined. The following aspects of this evidence are illustrative: (a) Mr Davis's acknowledgment of dislike of Mr Trevanion was corroborated in Mr Trevanion's evidence, but although Mr Trevanion referred to a number of alleged recent comments by Mr Davis that were hostile towards him, none of them mentioned his homosexuality. (b) Ms Preest alleged that during October 2012 Mr Davis referred to Mr Trevanion as a 'cockhead', adding that now that he was the Club's President he would 'get rid of that cockhead in the kitchen'. Ms Roberts submitted, without opposition from Mr Dalzell, that this term does not have homosexual connotations. Definitions provided in the Macquarie Dictionary support this submission. (c) Paul Maynard, a Club member, alleged in his witness statement that in or about November 2012 Mr Davis said words to the following effect in relation to Mr Trevanion: 'He'll be gone on the first. I can't wait'. Mr Maynard was not required for cross-examination. (d) In oral evidence, Michelle Barry, also a Club member, alleged that Mr Davis, referring to the interim order made in these proceedings, recently said to her that Mr Trevanion had 'won the battle but not the war'. She took this to indicate that Mr Davis was 'keen to see Mr Trevanion out of the place'. [85] These items of evidence regarding Mr Davis's decision to vote in favour of terminating the Licence Agreement fall well short, in our opinion, of demonstrating that Mr Trevanion's homosexuality was, to quote from Nicholls, 'at least one of the "real", "genuine" or "true" reasons' for this decision. [86] This evidentiary material contains very little direct evidence that Mr Davis had a discriminatory motive in so deciding. Furthermore, we are satisfied that it does not provide a basis for an inference along these lines. [87] In declining to draw this inference, we take full account of two warnings given by the Tribunal in Dutt. The first is that 'it is not enough that [an] inference is a mere possibility: it must be one of "probable connection"'. The second is that 'an inference cannot be made where more probable and innocent explanations are available on the evidence'. We interpret 'innocent' here to mean lacking any discriminatory element. [88] In our judgment, the 'more probable and innocent' explanations of Mr Davis's decision to vote in favour of terminating the Licence Agreement were (a) his dissatisfaction with the food offered in the restaurant, (b) his awareness that this dissatisfaction was shared by a number of other Club members and their guests, (c) his concern that if Mr Trevanion's contract were not terminated, the divisions and hostilities that had arisen between Club members because of their different views about the restaurant would persist, (d) his further concern that the unpopularity of the restaurant among a number of Club members was indirectly causing the Club to suffer financial loss and (e) his personal dislike of Mr Trevanion. Page 13 of 14 Trevanion v Wyangala Country Club Ltd (No 2), [2013] NSWADT 27 [89] Mr Redman. The only evidence suggesting that Mr Redman may have been motivated by discriminatory considerations when voting for the termination of the Licence Agreement was in Mr Trevanion's statement. He claimed to have been told by a female employee of the Club that when in December 2012 she rejected advances made to her by Mr Redman he said 'you're just queer'. Even if this claim — which Mr Redman denied — were true, it could not provide the basis for a finding of discrimination. [90] Other evidence as to the new Board's motives. For the sake of completeness, we should mention here four more allegations by witnesses to the effect that directors of the Club acted, or might have acted, with discriminatory motivations in reaching decisions regarding Mr Trevanion: (a) Mr Denny, who was one of the two directors who voted against the termination of the Licence Agreement, was asked by Mr Dalzell whether Mr Trevanion would have been treated differently if he were not homosexual. Mr Denny replied that as far as he was concerned this made no difference, but that he 'couldn't speak for' the other directors. (b) Mr Gosper, who was the other director voting against termination, stated in cross-examination that he could not say whether Mr Trevanion would have been treated differently by the Board if he had not been homosexual. (c) Mr Thompson expressed the opinion in his witness statement that 'some people formed the decision that Gary had to go' and that 'there was an element of homophobia here'. (d) Ms Preest made it clear in her oral evidence that she believed that the termination of the Licence Agreement was attributable to discrimination against him on the ground of his homosexuality. [91] Once again, this is not evidence that could provide the basis for a finding of discrimination. It was opinion evidence only, given in very general terms and without relevant expertise. [92] We must also deal with a further claim, made by Mr Trevanion in his evidence and supported in Mr Dalzell's submissions. This was a claim that the decision to terminate the Licence Agreement was the consequence of 'lobbying', or of pressure exerted in other ways on the Club's directors, by the two employees — Mr Stevens and Ms Moncrieff — who manifestly disliked Mr Trevanion and wanted his licence terminated on account of his homosexuality. [93] We have already found (see [46] above) that Mr Stevens made derogatory comments to Mr Trevanion, referring to his homosexuality. The disfavour with which Mr Stevens regarded Mr Trevanion may well have been attributable, at least in part, to his homosexuality. But other evidence, which in large measure was adduced by Mr Trevanion, shows that both the old Board and the new Board were greatly dissatisfied with the performance by these two employees of their duties at the Club's bar. [94] This evidence was to the following effect. On 17 September 2012, the old Board resolved that the employment of Mr Stevens and Ms Moncrieff should be terminated, on the ground of their failure to observe rules regarding the responsible service of alcohol. Subsequently, it received advice from the Club's solicitors that this could not be lawfully done because warnings of possible dismissal had not been given. On 3 October, this Board discussed, but was unable to resolve, an incident that had occurred in the restaurant on 29 September, involving (amongst others) Mr Stevens, Ms Moncrieff and Mr Trevanion. When the matter came before the new Board on 11 October, it voted to 'force' these three people to attend mediation. This was unsuccessful because Mr Trevanion refused to do so and the Club's solicitors advised that he could not be 'forced'. The minutes of the meeting of 25 October (being the meeting at which the new Board resolved to terminate the Licence Agreement) record a resolution that a letter should be sent to Mr Stevens and Ms Moncrieff 'requesting their attendance at a meeting in order to discuss their behaviour in the club'. So far as the minutes indicate, this meeting did not take place. But a further entry in the minutes for the meeting of the new Board on 20 December 2012 refers to the sending of a letter to Mr Stevens regarding 'overdue rent for rental property'. [95] The only testimony supporting Mr Trevanion's claim that the desire to get rid of him shared by Mr Stevens and Ms Moncrieff played a role in inducing the new Board to terminate the Licence Agreement related to a party that Mr Stevens held during September 2012. Although Mr Stevens, Ms Moncrieff and indeed Mr Davis denied this, we believe, taking account of evidence from other witnesses (notably Mr Gosper) that at this party the idea that Mr Davis should be elected to the Board and should seek to have the Licence Agreement terminated (as subsequently occurred) was discussed. But this finding falls well short of a finding that Mr Stevens and Ms Moncrieff exerted any significant influence over Mr Davis's decision to act as he later did. [96] Taking account of all this evidence, we reject the submission that one of the reasons for the termination of the Licence Agreement was that either or both of these two employees, being motivated by dislike of Mr Trevanion's homosexuality, 'lobbied' the directors and/or exerted other forms of pressure upon them. [97] Mr Dalzell's submissions included a claim that the Board, when terminating the Licence Agreement, denied him procedural fairness because it gave him no opportunity to respond to its concerns by agreeing to change the Page 14 of 14 Trevanion v Wyangala Country Club Ltd (No 2), [2013] NSWADT 27 restaurant's menu, or otherwise to show cause why termination should not occur. But we agree with two points made by Ms Roberts in reply. These were (a) that Mr Trevanion could not succeed in these proceedings, which require proof of discriminatory conduct by employees and/or agents of the Club, merely by showing that the Licence Agreement was terminated in an unfair manner and (b) that in any event, cl 13.2 of the Agreement permitted either party to terminate it on one month's notice 'without the necessity of proving or showing any breach by the other party'. [98] Our conclusion. The outcome of this analysis of relevant evidence is that it does not show Mr Trevanion's homosexuality to have been 'at least one of the "real", "genuine" or "true" reasons' for the decision taken by any of the five relevant directors — Mr Davis, Mr Hudson, Mr Morgan, Mr Pomering and Mr Redman — to vote in favour of terminating the Licence Agreement. [99] We will add that, even if we had been persuaded that one of these directors — for example, Mr Davis — had voted in circumstances amounting to unlawful discrimination, this would not have been sufficient to make out Mr Trevanion's claim. In this connection, the passages from the judgments of Toohey and Gummow JJ in IW v City of Perth (1997) 191 CLR 1 that are quoted in the above extract from Nicholls (see [55]) provide guidance. The Club's decision to terminate the Licence Agreement was a corporate decision, reached by a majority of five to two. If according to our findings one of the votes of the majority directors had been cast on the 'impermissible ground' of discrimination (to use the terminology of their Honours in IW) and therefore should not have been taken into consideration, the result would still have been the same. It could not be said that the result would have been different 'but for' the vote of that director. [100] We mention this matter in passing only, as it is not essential to our decision and was not the subject of submissions at the hearing. Our orders [101] For the foregoing reasons, Mr Trevanion's complaint of direct discrimination on the ground of homosexuality, brought under ss 49ZG(1)(a) and 49ZQ(2) of the AD Act, must be dismissed. [102] A further order that we make is that the interim order made by the Tribunal on 30 November 2012, staying the termination of the Licence Agreement pending further order, is discharged. ********** Order [1] The complaint is dismissed. [2] The interim order made by the Tribunal on 30 November 2012 is discharged. Counsel for the respondent: J Dalzell Solicitor for the applicant: Baldock Stacy & Niven End of Document