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- Unreported Judgment
Vuga v Persal & Co. Trading Pty Ltd QCAT 368
Vuga v Persal & Co. Trading Pty Ltd  QCAT 368
Persal & Co. Trading Pty Ltd
23 to 25 October 2017
31 October 2017
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION DUE TO RELIGIOUS OR POLITICAL BELIEFS – where applicant wished to hold a “meet for drinks” gathering of her party supporters in a hotel – where this was refused by the hotel – whether it was refused on the basis of the attribute of political belief or activity
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – whether the Queensland legislation requires a finding of the reason for the treatment as a first step, instead of the approach required by Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – OTHER MATTERS – where respondents claimed to have done an act that was reasonably necessary to protect the health and safety of people at a place of work – whether this defence succeeds
Anti-Discrimination Act 1991 (Qld), s 7, s 10,
Alexander v Home Office  2 All ER 118 referred to
Cairns v Reginal Council v Carey  QCATA 150 followed
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92 distinguished
Yu Ping Xi v WorkCover Queensland  QCATA 134 followed
Max Spry, counsel, instructed by Cooper Grace Ward
REASONS FOR DECISION
- This is a complaint made by Kim Vuga that Beach House Hotel directly discriminated against her in April 2016. In brief, she alleges that a duty manager had said it would be no problem if she and supporters of her party gathered for drinks at the hotel with a view to going on to a meeting elsewhere, and that a duty manager had seen and approved a flyer which her party intended to use to advertise the gathering. Then, in a telephone call the day before the gathering, the hotel manager told her it would not be permitted after all.
- Ms Vuga alleges that in the telephone call, and in subsequent correspondence and media publications, the hotel manager disclosed that the reason for his decision was disagreement with her political views and those of her party.
- The respondents say that there is no direct discrimination on a strict application of the necessary tests, and that the decision was made on the grounds of health and safety of staff, which is a complete defence.
- Resolution of the complaint involves a careful application of the test for direct discrimination in section 10 of the Anti-Discrimination Act 1991 (Qld) (‘The Act’). Discrimination is justiciable in the tribunal if referred by the Anti-Discrimination Commission Queensland (ADCQ) following a complaint. Ms Vuga complained on 24 April 2016 to the ADCQ about what had happened. The ADCQ attempted to resolve the matter in conciliation. This was unsuccessful, and so Ms Vuga sought referral of the complaint to the tribunal which she was entitled to do under section 164A of the Act. The referral was received by the tribunal on 9 September 2016.
- In the referral to the tribunal ADCQ had identified the complaint as one of direct discrimination under section 10 of the Act but it was also characterised by ADCQ as one of indirect discrimination under section 11. In her paperwork, however, Ms Vuga has always referred only to section 10 (direct discrimination) and not to section 11. The allegations are clearly not of indirect discrimination and the complaint has rightly been regarded as one of direct discrimination only.
- Ms Vuga formed the Love Australia Or Leave (LAOL) party in about November 2015. Although the party was not registered with the Australian Electoral Commission at the time of the events with which I am concerned, it has been registered since. Throughout, she has been President of the party. The party has a committee which she chairs. She regards herself as having the final say in the party. There is a list of members of the party. She says, and I accept, that as founder member and President of the party she was personally affected by the treatment of which she complains.
- Ms Vuga wished to hold a meeting in the Hervey Bay area. The party’s local representative Ms Lyn Morrison set about arranging this. It was decided to hold the meeting on 9 April 2016. The idea was that Ms Vuga would speak at the meeting and make a slide presentation. Ms Vuga and Ms Morrison did not want interference with the meeting from opponents of the party. So instead of openly advertising the venue for the meeting, the plan was to keep the venue secret, and announce it at a “meet for drinks” beforehand.
- There is some disagreement about the sequence of events which followed, and what the management of the hotel knew about Ms Vuga’s plans. In resolving this disagreement I have largely accepted the evidence of all the witnesses. This has been possible by allowing for natural mistakes in recollection, and errors as to dates and assumptions.
- Just over two weeks before 9 April 2016, Ms Morrison telephoned the hotel and spoke to a duty manager there. She asked whether the party could hold a meeting in the hotel. The duty manager said he was unable to make a decision about this but that it would be unusual for the hotel to hold political type meetings. So Ms Morrison asked him whether it would be alright if instead of holding a meeting at the hotel, the party members were to attend for drinks and then go elsewhere for the meeting. The duty manager agreed that this would be alright.
- After that telephone discussion, the party secretary prepared a template of a flyer to advertise the meet for drinks and the subsequent meeting and sent this to Ms Morrison by email.
- The flyer was in these terms:
Kim Vuga is coming to Hervey Bay
Love Australia Or Leave Party forum about US & security concerns from UN Camps to Australia
Members and Non Members Welcome
Beach House Hotel – Scarness 344 The Esplanade
Saturday 9 April 2016
At 1pm for a “Meet for Drinks”
Note: Venue of meeting given on arrival
Email: contact details
- The flyer included a picture of Ms Vuga, with a picture of a scene in Hervey Bay and the Love Australia Or Leave Party logo below.
- Ms Morrison printed out a handful of copies of the flyer and about a week before 9 April 2016 she took them to the hotel. She saw a duty manager there. This was a different duty manager from the one Ms Morrison had spoken to on the telephone before.
- Ms Morrison explained to the duty manager that the plan was that Ms Vuga would meet for drinks in the main bar of the hotel on 9 April 2016 and then go elsewhere for a meeting. She showed the duty manager the proposed flyer. She did not ask the duty manager to read through the flyer and approve its content. It was more that Ms Morrison was using the flyer to assure the duty manager that all that was planned was a meeting for drinks prior to the members going on for a meeting elsewhere rather than having a meeting in the hotel. The duty manager said “yeah that’s OK”.
- On the balance of probabilities the duty manager only gave the flyer a cursory glance at the time and did not study it carefully. This is because, had he done so, he would have realised that he ought to question it with Ms Morrison or raise the issue immediately with Mr Robins. And this did not happen.
- I think Ms Morrison acting reasonably would have realised from the nature of the discussion that day and the duty manager’s cursory glance at the flyer that his words “yeah that’s OK” did not amount to approval of the flyer as she thought. It was merely approval for the concept that Ms Vuga would attend for drinks with some others and then hold a meeting elsewhere.
- However, perhaps with a degree of wishful thinking, Ms Morrison believed that the duty manager had approved the arrangements as shown on the flyer. So on 8 April 2016 the day before the meet for drinks she attended the hotel and handed a bar attendant some flyers and said that they had been approved by management the week before and that she wanted them to be placed in the main bar area of the hotel. Ms Morrison proceeded to place flyers around the benches of the main bar and in the TAB area of the hotel. She then went into the bistro area and asked the manager there to put them around the bistro. She also put some flyers on the counter of the drive through bottle shop.
- Soon after Ms Morrison’s visit, Mr Robins, who was the general manager of the hotel, became aware of the flyers. When he read them and realised their significance he was very concerned. He read the flyer as effectively inviting people to a meeting in the hotel. He checked the function room calendar but found no formal booking. Mr Robins heard from the bar attendant that Ms Morrison had claimed that the flyer had been “approved” by the hotel. He made enquires with staff to see if anyone knew about the meeting. He was told by the duty manager that there had been some contact with Ms Morrison and it had been agreed that Ms Vuga and her members could attend for drinks prior to a meeting to be held elsewhere.
- Mr Robins made enquires with Liquor Licensing and with the police. He was told by the police that they had information that there could be up to 200 people including supporters and protestors.
- Within 45 minutes of first seeing the flyers, Mr Robins decided that he could not allow the meet for drinks to happen and he telephoned Ms Vuga to tell her of his decision.
Other relevant facts
- The meet for drinks at the hotel was widely advertised. Members and known supporters of the party were informed directly. The flyers were distributed locally. There was a letter drop. There was advertising on the party’s website and on the party’s Facebook page and also Ms Vuga’s own Facebook page. Ms Vuga informed news media about the meet for drinks and told them when and where it was to be held. Although these details were not known to Mr Robins at the time he made his decision, he could see from the flyer itself and from Ms Morrison’s efforts to distribute them around the hotel that the meet for drinks was probably being widely advertised.
- The flyer showed that the meet for drinks was to be at 1pm with a meeting afterwards at an undisclosed venue, “to be given on arrival” at an unspecified time. In fact, Ms Morrison had booked a room in the local Returned and Services League at 2.30pm for this meeting. Although neither Ms Vuga nor Ms Morrison knew how many people would be attending the meet for drinks and the meeting, the booking at the RSL was in a room suitable for 50 people.
- As it turned out, the RSL cancelled this booking by email to Ms Vuga’s office and by telephone to Ms Vuga in the morning of 9 April. In the email, the RSL gave the reason for the cancellation as being “due to staff safety concerns”. The RSL manager said he had concerns about safety to Ms Vuga on the telephone.
- The Beach House Hotel is operated by the first respondent, Persal & Co. Trading Pty Ltd. The hotel has four function rooms, capable of accommodating 60, 100, 200 and 450 people respectively. For the purposes of the fire regulations the total maximum capacity of the hotel is 1,500 people. When coming into the main entrance of the hotel there is a bistro on the right and the main bar on the left.
- A person who had received the flyer and who was interested in attending the “meet for drinks” would naturally end up in the main bar. This is because there are other bars in the hotel but they are linked to other things like the bistro or the gaming area. The main bar has a total of almost 100 seats, that is 65 stools at high tables, 20 chairs on the balcony and about 10 tub chairs. As can be seen from the photographs there is some room in the main bar for standing as well.
- Mr Robins was aware that on a Saturday in April at 1pm the main bar would be busy with about 80 to 100 people there. This would include families with young children, some of whom would have had meals delivered from the bistro to their tables in the main bar.
- Despite not permitting the party to attend the hotel for its meet for drinks, as a precaution Mr Robins booked two crowd controllers from a security provider. Mr Robins’ general rule is to have one crowd controller per 100 persons if any security is required. After 11pm the hotel’s licence requires one crowd controller per 100 persons attending.
- The instructions given by Mr Robins to the crowd controllers was not to allow the Love Australia Or Leave party to hold a meeting in the hotel. Effectively this meant that the crowd controllers, who were to be at the hotel entrance, were instructed to deny entry to anyone from the party. This would include Ms Vuga as its founder and President.
- At about 12.45pm on 9 April 2016, Ms Vuga and a small number of people gathered outside the hotel. One of them (who gave evidence before me) was with his wife. They were both wearing tee-shirts with Love Australia Or Leave printed on them. They went to the hotel entrance but were told by the crowd controllers that they were not permitted to enter the hotel. The crowd controllers told them that they did not want “your type” on the premises.
- Ms Vuga herself did not attempt to enter the hotel. Her reason for not trying to do so, which I accept, is that she believed she was not permitted to do so.
- The hotel does allow political meetings to be held in the function rooms and had done so several times the year before.
The reason for Mr Robins’ decision
- In his witness statement Mr Robins gives the following reasons for this decision:
- serious concerns for the health and safety of the Beach House Hotel staff and patrons;
- Ms Vuga intended to hold the LAOL meeting in the main bar area of the Beach House Hotel;
- the LAOL member or representative had been dishonest about management authorising the LAOL flyers and the LAOL meeting when management had not authorised it;
- the Beach House Hotel is a private business and Mr Robins has the right to refuse to allow a function to be held at the Beach House Hotel that was not authorised or approved in accordance with the function booking process and the Function Terms and Conditions;
- Mr Robins would refuse any person or group from attempting to hold a public meeting or other function at the Beach House Hotel that was not authorised or approved in accordance with the function booking process and the Function Terms and Conditions; and
- Mr Robins was concerned about the possibility of negative publicity for the Beach House Hotel if LAOL supporters and protestors became explosive and/or violent at the LAOL meeting.
- These stated reasons need to be examined in the light of those expressed by Mr Robins at the time. What he said comes from a transcript of his telephone conversation with Ms Vuga, from a Facebook post and email the following day, and from reports of his comments to news media.
- As for the transcript, this was a recording of the telephone conversation made by Ms Vuga without Mr Robins’ knowledge. Despite this seemingly being a criminal offence by sections 6 and 7 of the Telecommunications (Interception and Access) Act 1979 (Cth), in the usual case this does not render it inadmissible and it was accepted in evidence.
- Each side produced a transcript of the call and the transcripts were slightly different. Unexpectedly the recording was not available to me to check which transcript was more accurate. However, comparing the two transcripts they are the same in all material respects.
- The telephone call was as follows:
Kim Vuga: Hello Kim speaking.
Paul Robins: Hello Kim. My name is Paul I’m the manager of the Beach House Hotel. How you going?
Kim Vuga: Good, good. How are you?
Paul Robins: Um, I’m a bit annoyed actually.
Kim Vuga: You’re a bit annoyed?
Paul Robins: Yeah. I just found a flyer that says you guys are coming here to meet and everything after the manager specifically said that you wouldn’t be able to have a meeting or anything of the kind here.
Kim Vuga: We are not having a meeting there, we’re meeting for drinks, that’s what people do when they come to a hotel.
Paul Robins: Yeah well you won’t be able to come here and do that I’m afraid, um.
Kim Vuga: Where are you at the Beach House Hotel?
Paul Robins: Beach House Hotel, yeah.
Kim Vuga: Hervey Bay?
Paul Robins: Yep.
Kim Vuga: Okay that’s alright. All right that’s fine I’ll um .. meet there and we won’t stay for a drink.
Paul Robins: Well you won’t be able to meet here either.
Kim Vuga: Well you can’t …
Paul Robins: That’s what I’m saying you’re not having a meeting here.
Kim Vuga: You won’t be able to stop us from meeting out the front of the premises.
Paul Robins: Yeah so long as you guys, look you don’t come into the venue that’s fine or to the car park or anything like that.
Kim Vuga: You know that this is discrimination?
Paul Robins: Sorry?
Kim Vuga: You know it’s discrimination?
Paul Robins: Righto well yeah.
Kim Vuga: You do?
Paul Robins: That’s why .. I don’t, I don’t want you ..
Kim Vuga: Can you tell us the reasons why?
Paul Robins: Sorry, I don’t want anything to do with your association. You asked if you could have a meeting here and, you were told that you couldn’t
Kim Vuga: But ..
Paul Robins: .. but you’ve gone ahead and done that anyway and put flyers out. So I’m just letting you know that you’re not having a meeting here and you won’t be welcome to do that.
Kim Vuga: Um, we are meeting for drinks, but we ..
Paul Robins: I don’t want you in the venue.
Kim Vuga: You don’t want me in the venue?
Paul Robins: No, no ..
Kim Vuga: And you realise that’s discriminating.
Paul Robins: Sorry?
Kim Vuga: You realise that its discriminating?
Paul Robins: You’ve already put out flyers saying that’s what you’re doing after you were told you’re not to do that. So I don’t want you at the venue ..
Kim Vuga: Um that would have been my members I am actually in Brisbane, I’m from Townsville
Paul Robins: Yep that’s fine. Sorry I’m just letting you know what’s going on. Thanks Kim.
Kim Vuga: I want to know the reasons why though.
Paul Robins: Thanks Kim, bye.
Kim Vuga: Why? Though?
Paul Robins: Bye
- After the telephone conversation of 8 April 2016 Ms Vuga sent an email to Mr Robins asking why he made the decision he did. He responded by email on the morning of the next day, that is 9 April 2016, as follows:
Neither you or the members of you (sic) party were banned. We were asked if it was ok to have your meeting in the bar. Your people were told no, as we do not want to get involved or have the name of our business associated with the party. This was ignored and the venue was advertised.
We are not interested in people’s political views only their favourite beer and how they like their steak cooked.
This is a family venue that people come to for a quiet drink and a meal, not the place for a political rally. Given the controversial nature of the group and the amount of protesters it attracts this would disrupt and negatively affect our business.
This is a private business and we have every right to say no to an event.
- Just before this email, Mr Robins posted a comment on the hotel’s Facebook page in response to negative comments and fake reviews. The comment was in these terms:
Kim and the members of her party were not banned. We were asked if it was ok to have their meeting in the bar. They were told no, as we do not want to get involved or have the name of our business associated with theirs. This was ignored and the venue was advertised as their meeting place. We are not interested in people’s political views only their favourite beer and how they like their steak cooked.
This is a family venue that people come to for a quiet drink and a meal, not the place for a political rally. Given the controversial nature of this group and the amount of protestors they attract this would disrupt and negatively affect our business.
This is a private business and we have every right to say no to an event.
- Less than an hour after having spoken to Ms Vuga on the telephone on
8 April 2016, Mr Robins was called by a reporter and asked to comment on an allegation by Ms Vuga that she had been discriminated against. Mr Robins made certain comments to this reporter. He also spoke to another reporter at another time. In his evidence he accepted that the reports of his comments in news media presented to the tribunal (set out below) accurately represent what he had said to the reporters.
- The first report dated 8 April 2016 in the Brisbane Times must have been put together from his comments to the reporter on the telephone less than an hour after speaking to Ms Vuga. The later news media reports include the hotel’s Facebook post.
- The relevant media reports are:
- 8 April 2016 – Brisbane Times:
The independently owned hotel’s venue manager, Paul Robins, told Fairfax Media a party representative had contacted the venue earlier this week and asked to host the forum. We said no, that we didn’t support their views or didn’t want anything like that associated with our venues.
(We said) we don’t have an issue if you’re having a drink with your friends but you’re not to organise a political meeting in our venue. Next thing we find flyers where she’s advertised that she’s having this meeting in our venue after we’d already said no.
Ms Vuga insisted members were only meeting for drinks but Mr Robins said that was just ‘semantics’. We’re a hotel, we’re not a political organisation, he said. We’re an inclusive venue and we simply just don’t to be associated with her or her political views.
- 9 April 2016 – Courier Mail and Weekend Australian:
A Queensland pub has defended its decision to turn down a controversial anti-Islam party’s request to use the venue as a meeting place. Indeed, the Beach House Hotel in Hervey Bay says it cares more about patron’s ‘favourite beer and how they like their steak cooked’ than their political views. The business took to its Facebook page on Saturday to deny it had banned Love Australia Or Leave Party founder Kim Vuga and her members. Rather it said the group had asked to have their meeting in the bar and simply been told no. ‘This is a family venue that people come to for a quiet drink and a meal, not the place for a political rally’ the statement said. ‘This is a private business and we have every right to say no to an event’. But even after being knocked back, the hotel says the site was still advertised as the group’s scheduled meeting spot.
- 11 April 2016 – Fraser Coast Chronicle:
General manager Paul Robins said it was a business decision, not a political one, to refuse the Love Australia Or Leave Party holding a meeting in the bar. Earlier: The Beach House Hotel has hit back at the Love Australia Or Leave Party which criticised the venue for not allowing then to hold a political meeting. The venue’s management told officials from the right wing party, they would not support a gathering at the Beach House because they did not agree with the party’s views. ‘The duty manager made it clear that it was not okay and that we did not support their views’ the Beach House Hotel general manager Paul Robins said. It’s just that you can’t have these types of political meetings at the venue. Mr Robins said the hotel did not want their business associated with Love Australia Or Leave. Mr Robins said the group was free to meet outside as long as it was not on the Beach House premises including the car park. He said he did not think the majority of the Fraser Coast community would welcome the party.
- When he gave evidence Mr Robins described his “anger” when he saw the flyers and when he heard from the bar attendant that a party representative had claimed they had the approval of hotel management. Mr Robins read into this comment that the party was claiming to have approval for the meeting at the hotel, which he knew was not the case. It took 45 minutes for Mr Robins to complete his enquiries and to make his decision and then he called Ms Vuga immediately. His anger that day is reflected in his early comment to Ms Vuga that he was “a bit annoyed actually”.
- His main concern was that it appeared that a lot of people were going to gather in the main bar, that protestors could attend or at least there could be heated discussions. This would affect patrons attending for a quiet drink or meal, some of whom would be attending with children. There were four things that made Mr Robins think the numbers could be large: the flyer showed that the meet for drinks was open to anybody not just party members (and he believed the flyer had been widely circulated); anyone wishing to attend the meeting had to attend the meet for drinks in order to find out where the meeting was to be; it could appear from the flyer that the meeting was to be in the hotel itself; and the police said that as many as 200 people could be attending. Mr Robins was also concerned that there was no time given for the meeting, and it was unclear how long the meet for drinks would last, so this meant that people would be arriving all at the same time.
- Mr Robins recognised that, having regard to the normal use of the main bar on a Saturday at that time, the gathering was completely inappropriate. Mr Robins had strong reasons therefore to refuse to allow the gathering to go ahead. He really had no alternative but to make the decision he did.
- However, it does appear from the written material set out above that there were other factors at play here. Mr Robins’ comments as reported in the Brisbane Times report of 8 April 2016 and in the Fraser Coast Chronicle report of 11 April 2016 are particularly telling. It is clear that Mr Robins was saying that the hotel as an establishment did not support Ms Vuga’s views and he was anxious that the hotel should not appear to be associated with them. In terms of the Act, this demonstrates that a decision was made partly for those reasons and it was a decision partly based on Ms Vuga’s attribute of political belief.
- When analysing the reasons for Mr Robins’ decision, I think that it is significant that he was unable to tell me whether there was in fact a function room available that day. I do think that if the political belief factor had been removed, Mr Robins would have considered alternatives such as offering a function room with drinks on hand, or some other acceptable arrangement instead of the meet for drinks as planned. One has to take into account here that he would otherwise have been turning away custom for the hotel.
- It is suggested that Mr Robins made his decision because it was reasonably necessary to protect the health and safety of staff. Whilst I accept that if the meet for drinks went ahead Mr Robins was concerned about the possibility of disruption in the hotel and also subsequent repercussions for the hotel, I do not think protecting the staff was a substantial reason for his decision. I say that because although there was a discussion about health and safety issues with the owner’s agent the day after the decision, it is not stated as a reason for the decision on any of the contemporaneous documentation. Even after the ADCQ complaint, safety of staff is not mentioned in Mr Robins’ response to the complaint.
- Overall I take the view that there were two main reasons why Mr Robins made the decision he did. The first was the impracticality of the arrangements and the way in which Ms Vuga’s party had organised them. The second was the dislike of Ms Vuga’s political views and disagreement with those of the party. On my findings, they were both “substantial reasons” for the decision.
- Section 10 defines direct discrimination:
10 Meaning of direct discrimination
- (1)Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
R refuses to rent a flat to C because—
• C is English and R doesn’t like English people
• C’s friend, B, is English and R doesn’t like English people
• R believes that English people are unreliable tenants.
In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct.
- (2)It is not necessary that the person who discriminates considers the treatment is less favourable.
- (3)The person’s motive for discriminating is irrelevant.
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.
(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
- (5)In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
- Section 10 refers to an “attribute”. The attributes are listed in section 7. The attribute relied on by Ms Vuga is “political belief or activity”. There is no dispute that she held that attribute.
- For the purposes of section 10, it does not matter if the perpetrator does not realise that the treatment is less favourable treatment [section 10(2)]. And it does not matter that discrimination was not intended [section 10(3)]. These provisions recognise that discriminatory treatment may be conscious or unconscious.
- Discriminating against somebody is not itself a contravention of the Act. For there to be a contravention, it is necessary for the discrimination to be in an “area”. Ms Vuga relies on the goods and services area. Discrimination in the goods and services area is a contravention of the Act as provided in section 46:
46 Discrimination in goods and services area
- (1)A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person—
- (a)by failing to supply the goods or services; or
- (b)in the terms on which goods or services are supplied; or
- (c)in the way in which goods or services are supplied; or
- (d)by treating the other person unfavourably in any way in connection with the supply of goods and services.
- (2)In this section, a reference to a person who supplies goods and services does not include an association that—
- (a)is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes; and
- (b)does not carry out its purposes for the purpose of making a profit.
- It is not in dispute that the goods and services area covers the allegations in this complaint. That is because the services concerned, that is making the hotel and its facilities available to Ms Vuga would be a supply of services.
- Mr Robins is a second respondent to the claim. It is not in dispute that he was employed by the first respondent. Apart from any direct responsibility for what happened, the first respondent would be liable for acts of Mr Robins by section 133. This provides that a person is jointly and severally liable for a contravention of the Act by the person’s workers or agents in the course of work or while acting as agent.
- The hotel and Mr Robins wish to rely as a defence to the claim on a general exemption which applies to all acts which would otherwise be contraventions of the Act. That is the workplace health and safety exemption in section 108:
108 Workplace health and safety
A person may do an act that is reasonably necessary to protect the health and safety of people at a place of work.
- By section 204 of the Act, Ms Vuga has the burden to prove the contravention of the Act on the balance of probabilities.
- In the defence to the claim relied on by the hotel and by Mr Robins, the burden goes the other way. By section 206 the hotel and Mr Robins have the burden to prove on the balance of probabilities that the exemption applies.
The less favourable treatment which is alleged
- In order properly to resolve the complaint, it is necessary for me to understand precisely what is alleged to be the less favourable treatment of Ms Vuga, which she says was not or would not have been the treatment of someone in the same or not materially different circumstances.
- The precise allegations as identified from her original complaint, her contentions in the tribunal and in her initial submissions were identified and agreed at the commencement of the hearing as follows:
- Having previously agreed to permit Ms Vuga and supporters of her party to attend the hotel for a “meet for drinks”, changing their mind about this.
- Mr Robins stating during the telephone conversation that he did not want anything to do with Ms Vuga’s political party and the party was not welcome at the hotel.
- Not permitting Ms Vuga’s political party to gather on the hotel premises.
- Refusing Ms Vuga and others, such as political party members and interested others, entry into the hotel.
- Not permitting Ms Vuga and supporters of her party members to gather in the hotel car park.
- It is not suggested that there was an actual comparator who received better treatment that is to say someone in the same or not materially different circumstances as Ms Vuga but without her attribute.
- Instead, it will be necessary for the tribunal to construct a hypothetical comparator to test for less favourable treatment. That is to say it is necessary to compare the hotel’s treatment of Ms Vuga with the way in which the hotel would have treated another person in the same or not materially different circumstances who did not have Ms Vuga’s protected attribute of political belief.
- It is submitted by Mr Spry on behalf of the respondents that the tribunal should follow Purvis v New South Wales (2003) 217 CLR 92, which stated when dealing with a similar statutory definition of direct discrimination that there is a two stage process when determining whether or not there has been direct discrimination. It was submitted that Purvis requires that the tribunal should consider first whether the applicant was treated less favourably by comparing the treatment given to the aggrieved person with the treatment that would have been given to a person in circumstances that are the same or not materially different but who did not have the protected attribute (the hypothetical comparator). If there is less favourable treatment on that test, then it is necessary to go on to find the reason for the treatment. This entails deciding whether the less favourable treatment was on the basis of the aggrieved person’s attribute that is, because of the person’s attribute. But if there is no less favourable treatment on that test, then there was no direct discrimination and there is no need to consider the “reason why”.
- Mr Spry submits that the appropriate hypothetical comparator in this case in order to test whether there was less favourable treatment, is a person who had behaved the same way as Ms Vuga and was in her circumstances, but who did not have the attribute of political belief. So it is said the correct comparator is someone who was prominent in news media, controversial and possibly divisive (but without her particular views) who wished to attend a meet for drinks in the hotel in the following circumstances:
- where the flyer invited members and also non-members to the event meaning that the numbers attending were unknown;
- where the venue for the subsequent meeting was undisclosed but to be given on arrival (meaning that all who wished to attend the subsequent meeting would have to attend the meet for drinks);
- where the flyer for the event was distributed in the way known the hotel when the decision was made (it appearing to be widely distributed around the local area);
- where the party had not sought permission from the hotel to hand out the flyers at the hotel but had pretended (through Ms Morrison) that such permission had been given;
- where the party had not booked a function room for the event so that the hotel could not undertake a risk assessment for it;
- where it was possible that up to 200 supporters and protestors might attend the event;
- where the length of the meet for drinks was not known but could be up to 1½ hours;
- where the meet for drinks would be at the busiest time of day (known to be likely to be 80-100 people) and where families would be present including young children;
- where the meet for drinks would naturally be in the main bar area of the hotel and in the circumstances was completely unsuitable because of its layout and size;
- where alcohol would be served, increasing the risk of trouble.
- In Mr Spry’s submission, in the circumstances set out above, the meet for drinks plan was completely impracticable and on that basis Mr Robins had no alternative but to stop it. Since the hypothetical comparator would have been treated the same way as Ms Vuga was treated then there was no less favourable treatment. Therefore the reason for the treatment test is never reached. There was no direct discrimination.
- My concern about this, discussed with Mr Spry during his helpful submissions on the appropriate tests to apply, was that it did appear that Mr Robins openly stated at least in comments after the event, and perhaps in the telephone conversation with Ms Vuga, that one of the reasons for his decision (or possibly a justification for it) was dislike of and disagreement with Ms Vuga’s political views and those of her party. If this is right, then there could be two reasons for his decision, one which is non-discriminatory and one which is discriminatory.
- The Act deals with the case of two or more reasons for treatment in section 10(4). To set it out again:
- (4)If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
- Section 10(4) is clearly intended to resolve what happens if there is a non-discriminatory reason for the treatment and a potentially discriminatory reason for the treatment as in this case.
- Section 10(4) requires the tribunal:
- to consider whether there were two or more reasons for the less favourable treatment; and
- if so, to find whether the attribute was a substantial reason for the treatment.
- If the answer to both (a) and (b) is “yes” then the person is deemed to have treated the other person less favourably on the basis of the attribute. It would follow from that deemed result that direct discrimination under section 10 is proved.
- In order to ensure that section 10(4) is applied in an appropriate case, it seems to me that the tribunal as a first step must decide the reason for the treatment. If there is a single reason for the treatment, then section 10(4) is not engaged at all. The tribunal can compare the actual treatment with the way the actual comparator was treated or the hypothetical comparator would have been treated. If there are two or more reasons for the treatment however, then section 10(4) is engaged and the tribunal needs to consider whether the attribute was a substantial reason for the treatment.
- This is therefore quite different from the two step approach required by Purvis. The comparable provision in the Disability Discrimination Act 1992 (Cth) (‘The DDA’) considered in Purvis was section 10:
Act done because of disability and for other reason
- (a)an act is done for 2 or more reasons; and
- (b)one of the reasons is the disability of 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.
- This is quite different from section 10(4) in the Queensland legislation. The DDA provision considered in Purvis does not refer to treating a person less favourably on the basis of an attribute nor to reasons why a person “treats another”. It also applies to reasons for acting without requiring a reason to be substantial. Purvis was concerned with constructing the correct hypothetical comparator and was not a case where there was obviously more than one reason for the treatment. For these reasons, this tribunal is entitled to distinguish Purvis.
- Mr Spry has pointed out that the tribunal and the Appeal Tribunal and indeed the Court of Appeal has followed Purvis on a number of occasions. In none of the cases cited however, has the effect of section 10(4) been considered in the context of more than one reason for the treatment.
- In Cairns v Reginal Council v Carey  QCATA 150, the QCAT Appeal Tribunal did not refer to Purvis but seemingly applied section 10(4). That case concerned the dismissal of a Shire manager and the question was whether the dismissal was on the basis of political activity. The Appeal Tribunal, comprised of judicial member Hon James Thomas AM QC and Senior Member Endicott, found that there were several reasons why the manager was dismissed. Neither counsel had submitted that the test to apply was whether Mr Carey was treated less favourably than another person without the attribute would have been treated. Instead they both submitted that the true issue was whether the councillors’ decision to dismiss was based on political belief or activity, and the Appeal Tribunal agreed with this. The Appeal Tribunal when reconsidering the facts and inferences to be drawn from them found that the “substantial reason” for the dismissal was Mr Carey’s presumed political activity and his political association. In doing so, it would appear that the Appeal Tribunal applied section 10(4) because of the multiple reasons for the decision.
- In the context of a complaint that the complainant had not been treated differently than other people because of an attribute, the Appeal Tribunal in Yu Ping Xi v WorkCover Queensland  QCATA 134 pointed out that the construction of section 10 showed that there could not be direct discrimination without less favourable treatment upon comparing the actual treatment of the aggrieved person with that of the comparator.
- How does this work in the light of the discussion above about section 10(4)? This poses no difficulty. To take an example, suppose there was a case similar to Purvis heard under the Queensland legislation. A student with a disability had been excluded from school. Suppose the student had been well behaved, and in excluding him the school principal explained that the school did not take students with a disability. It is obvious here that the reason why the student was excluded was the attribute of disability. A hypothetical comparator (a well behaved student without disability) would be treated more favourably. A finding of direct discrimination would result.
- Suppose the student because of a characteristic of his disability had attacked staff and other students. Suppose the tribunal found that the school principal’s reason for excluding the student was this bad behaviour and not his disability. Then the hypothetical comparator would be a student who had attacked staff and other students but who did not have the attribute of disability. Since on the tribunal’s findings this student would also have been expelled there was no less favourable treatment. There was no direct discrimination.
- Suppose however, the tribunal found that the school principal had two reasons for excluding the student. One was because the student had attacked staff and other students, but another was that the school preferred not to have students with a disability at the school. Then section 10(4) would be engaged and the tribunal would have to decide whether the attribute of disability was a substantial reason for the treatment.
- There is no assistance from case law in other relevant jurisdictions about the correct approach to applying section 10(4). Although there are statutory provisions in their anti-discrimination and equal opportunity legislation which are similar, there are none exactly the same or close enough to assist.
Conclusions on questions of liability
- I have already found that concerns about safety of staff was not a substantial reason for the decision made by Mr Robins. In addition to this on the question of section 108 (it is not discrimination to do an act that is reasonably necessary to protect the health and safety of people at a place of work), the burden is on the respondents to prove this exception. I have not been persuaded that it was reasonably necessary to protect the safety of staff to make the decision that Mr Robins made. He had employed two crowd controllers and in those circumstances any risks to staff were diminished to such an extent that no further action would be required.
- I turn back therefore to the less favourable treatment which is alleged.
- The allegation in paragraph (a) is that having previously agreed to permit Ms Vuga and supporters of her party to attend the hotel for a “meet for drinks” the hotel management changed their mind about this. On my finding, the hotel (through the duty manager who spoke to Ms Morrison) only agreed to a meet for drinks for Ms Vuga herself and party members. This would have been acceptable because the identity and number of party members would be known and would be likely to be limited in number. Once enlarged to supporters of the party as well as members as demonstrated by the flyers, there was a problem. On this basis the allegation in paragraph (a) did not happen. It is true however, that the decision not to allow either members or supporters into the hotel did affect members as alleged in paragraph (a) but this allegation is adequately dealt with under the other paragraphs dealt with below.
- The allegation in paragraph (b) needs a different approach from the other allegations. This is the allegation that Mr Robins said he did not want anything to do with Ms Vuga’s political party and the party was not welcome in the hotel.
- I accept that the effect of the telephone conversation was as stated in this allegation. One person saying to another person that they do not want anything to do with the other person’s political party is not a contravention of the Act, however. This is because there is no “area” of the Act covering private conversations between individuals. But it is clear that Mr Robins was also making this comment in his role as manager of the hotel. Linked to the statement that the party was not welcome at the hotel this is actionable because it comes within section 46(1)(a) of the Act (failing to supply services).
- In this instance the treatment is itself openly on the grounds of political belief. This would not have been said if Ms Vuga did not have the attribute of political belief. On my finding there is only one reason for this particular treatment – Ms Vuga’s political belief. In other words Mr Robins did not say this because of the meet for drinks, although obviously that was the occasion for the comment. So the meet for drinks and matters surrounding the meet for drinks was not a “material circumstance” of the hypothetical comparator. He would have made the comment even without the meet for drinks and matters surrounding the meet for drinks. So, someone without the attribute of political belief would have been more favourably treated. What was said in paragraph (b) was discriminatory and a contravention of the Act.
- Turning to allegations in paragraphs (c), (d) and (e), these can be combined and rewritten to be “not permitting Ms Vuga and supporters of her political party on 9 April 2016 to enter the hotel or gather on the hotel premises including the car park”.
- I think Ms Vuga was reasonable to take the view from the telephone conversation with Mr Robins that she was not permitted to enter the hotel at about the time of the meet for drinks on 9 April 2016. I say this because the transcript shows that she believed that she was being excluded (“You don’t want me in the venue?”) and Mr Robins did not clearly correct this even if he intended to do so. In any case, Mr Robins’ instructions to the crowd controllers did exclude Ms Vuga that day. It is also the case that the hotel did not permit Ms Vuga or the party supporters to gather on the hotel premises including the car park.
- On my findings a substantial reason for these things happening was Ms Vuga’s political belief. Applying section 10(4) this was less favourable treatment on the basis of her attribute of political belief. And it was a contravention of section 46(1)(a) – failing to supply services.
- The contraventions which I have found above were perpetrated by the hotel itself through Mr Robins its general manager. Mr Robins is himself a respondent so it is right that the order is made against them both. In addition to its direct liability in this way, the hotel is responsible by reason of section 133 of the Act (vicarious liability).
- By section 209 of the Act, if the tribunal decides that there is a contravention of the Act it may make one of more of a list of orders. One type of order is monetary compensation and this must be an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention. Damage in relation to a person, includes he offence, embarrassment, humiliation, and intimidation suffered by the person.
- Ms Vuga claims various loss and expenses of $2,065.35, mostly made up of expenditure wasted because the meeting did not go ahead. She also claims general compensation of $25,000. She also asks for an order that staff members of the hotel should be trained in the area of anti-discrimination and written apologies to be published in various media outlets.
- In this case the overriding factor when considering the correct remedy is that the position in which both parties found themselves is, apart from the discrimination itself, almost completely the result of poor management and lack of insight of the party. The party’s plan to hold the meet for drinks in the hotel and to advertise it so widely and energetically without disclosing the ultimate venue for the meeting was never going to work. It was inevitable that the hotel was going to disallow it. The hotel made no error a couple of weeks before the event when a duty manager agreed to Ms Vuga and members of her party attending for drinks in the bar before going on to another venue. Had the second hotel duty manager studied the flyer when he was given a copy of it a week later (being a week before the event) the eventual problem would have emerged much earlier, but as I have found he was not asked to read it with a view to approving it. This omission was understandable but it meant that the hotel cancelled the event only a day before instead of a week before. So it was only a minor cause of the difficulties, since the party made the fundamental error in underestimating the way the hotel management would view the practical difficulties when the full implications of the flyer were realised.
- Because of the above, it cannot be said that Ms Vuga ought to be compensated for the inconvenience or expense of having to reorganise the meet for drinks or any wasted expenses of it not happening. I agree with Mr Spry’s submissions that the inconvenience or expense, or wasted expenditure arising from the cancellation of the meeting planned for later that afternoon, was caused by the cancellation by the RSL rather than the hotel’s decision. This is because that meeting could have gone ahead anyway despite the hotel’s decision.
- Mr Spry submitted that Ms Vuga has sought to take advantage of what happened by obtaining publicity for her party and therefore any financial award should take that into account. It can be seen from the evidence filed that Ms Vuga has had much publicity from what happened. I do not accept as she claimed that any of it is “negative”, because the comments made in the media must be read in the context of the party’s aims. But I know of no legal principle which would permit me to offset the amount of proper compensation to allow for a counter-benefit of that sort. I think the correct way to deal with this is to consider the extent of the offence, embarrassment, humiliation and intimidation suffered by Ms Vuga with this in mind.
- I am satisfied that Ms Vuga was offended upon being told of the hotel’s decision. It is inevitable that a person in Ms Vuga’s position would be offended by being told that the hotel wanted nothing to do with her party and that the party was not welcome at the hotel. I think that Ms Vuga was unlikely to have suffered much offence or humiliation by the actual exclusion on the day because she was able to convert what happened to her advantage through the media. I do need to take into account however that in the immediate aftermath of the events the disagreements between Ms Vuga and the hotel continued, and this tended to aggravate what had happened.
- Alexander v Home Office has often been cited in the Australian courts with approval when assessing compensation for discrimination. It was said in that case that awards should not be minimal because this would tend to trivialise or diminish respect for the public policy to which the law gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To award sums which are generally felt to be excessive does almost as much harm to the policy and the result which it seeks to achieve as do nominal awards.
- Taking everything into account, I think the appropriate award of compensation to be paid by the respondents to Ms Vuga is $2,500.
- I regard the other types of orders sought by Ms Vuga (training and published written apologies) to be quite inappropriate in the circumstances.
I have taken into account here all the submissions made about various discrepancies in the evidence. In particular, errors which emerged during cross examination and from documents disclosed during the hearing, and differences in Ms Morrison’s statements of 31 April 2017 and 21 August 2017 when compared with her earlier statements. In resolving the issues here, I am assisted by the contents of the original ADCQ complaint.
The duty manager who took the telephone call gave evidence that he had never seen Ms Morrison before. I accept that evidence.
Ms Vuga’s case is that this evidence is fabricated. She points to her own discussion with the police in which no such concerns were expressed. However, Mr Robins case is consistent with earlier material and also with his decision to engage two crowd controllers for the purposes of security. It is also corroborated by the owner’s agent who gave evidence about a discussion about this with Mr Robins on the following day.
The USB stick on the file submitted by Ms Vuga only contained a recording of somebody arranging computer repairs.
Received by ADCQ on 15 July 2016.
Purvis v New South Wales (2003) 217 CLR 92, .
Cairns v Reginal Council v Carey  QCATA 150, .
Cairns v Reginal Council v Carey  QCATA 150,  to .
This appears from paragraphs ,  and  and the catchwords in the report.
Yu Ping Xi v WorkCover Queensland  QCATA 134,  and .
That is to say other States and Territories, Federal law or UK law.
For example, section 10 of the DDA considered in Purvis.
The Act, s 209(5).
 2 All ER 118, 122.
- Published Case Name:
Vuga v Persal & Co. Trading Pty Ltd
- Shortened Case Name:
Vuga v Persal & Co. Trading Pty Ltd
 QCAT 368
31 Oct 2017