Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2025
  4. Leah v A.N. Burnett Investments Pty Ltd & Ors - [2025] QCAT 123

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Leah v A.N. Burnett Investments Pty Ltd & Ors[2025] QCAT 123

Leah v A.N. Burnett Investments Pty Ltd & Ors[2025] QCAT 123

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Leah v A.N. Burnett Investments Pty Ltd & Ors [2025] QCAT 123

PARTIES:

LEAH

(applicant)

v

A.N BURNETT INVESTMENTS PTY LTD

(first respondent)

CW MACLEOD PTY LTD 

(second respondent)

SHANE GROAT

(third Respondent)

APPLICATION NO/S:

ADL014-22

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

21 March 2025

HEARING DATES:

19 November 2024 and 10 February 2025

HEARD AT:

Brisbane

DECISION OF:

Member Roney KC

ORDER/S:

  1. The complaint is dismissed.
  2. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.

CATCHWORDS:

HUMAN RIGHTS – ANTI-DISCRIMINATION – direct discrimination and indirect discrimination in the goods and services area in the service of alcohol in the hotel industry on the basis of sex.

HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – where the applicant made a complaint against respondent to the Queensland Human Rights Commission under the Anti-Discrimination Act 1991 (Qld) – where Commission referred complaint to the Tribunal – whether the complaint was not effectively lodged (or made) with the Commissioner until it set out reasonably sufficient details to indicate an alleged contravention of the Anti-Discrimination Act 1991 (Qld), and whether it  did not and was out of time – whether the Tribunal should exercise the discretion conferred by s 175(2) of the Anti-Discrimination Act 1991 (Qld) Act and not accept the Applicant’s complaint.

BURDEN OF PROOF – Where lies the burden of proof for complaints about conduct prior to commencement of the Respect at Work and Other Matters Amendment Act 2024 (Qld). 

NON-PUBLICATION ORDERS – parties de-identified – Principles   on   which   such   orders   made – whether the Tribunal erred in refusing to grant a non-publication    order    –    whether a non-publication order should be granted in respect of this decision.

Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 11, s 7(c), s 7(o), s 8, s 10(3), s 10(4), s 11, s 132, s 133, s 138, s 175(2), s 204(1), s 285A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s (3)(a), s 28, s 29, s 142, s 146, s 147 

Liquor Act 1992 (Qld)

Respect at Work and Other Matters Amendment Act 2024 (Qld)

Sex Discrimination Act 1984 (Cth) s 5A

Disability Discrimination Act 1992 (Cth) s 5

Age Discrimination Act 2004 (Cth) s 14 

Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165

B v Queensland Building Services Authority [2013] QCATA 187

Bindaree Beef Ply Ltd v Riley (2013) 85 NSWLR 350

Briginshaw v Briginshaw (1938) 60 CLR 336

Buderim Ginger Ltd v Booth [2002] QCA 177

Creek v Cairns Post Pty Ltd (2001) 112 FCR 352

Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd [1993] FCA 796; 46 FCR 301

Leigh v Bruder Expedition Pty Ltd [2020] QCA 246

Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92; [2003] HCA 62

R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155

Stewart v State of Queensland (Queensland Health) [2024] QIRC 103

Toodayan & Anor v Anti Discrimination Commissioner Queensland [2018] QCA 349

University of Ballarat v Bridges [1995] 2 VR 418

Waters & Ors v Public Transport Corporation (1991) 103 ALR 513; [1991] HCA 49

X v McHugh (Auditor-General for the State of Tasmania) (1994) EOC 92-263

APPEARANCES & REPRESENTATION:

Applicant

S Mulipola Solicitor

Respondent

M Butters, Queensland Hotels Association

Introduction3

Non-publication order4

Was the Complaint made out of time?5

The comparator10

The Applicant’s case concerning the events of 15 February 2020 and discrimination in the goods and services area21

Indirect discrimination and reasonableness34

REASONS FOR DECISION

Introduction

  1. [1]
    Waxy’s Irish Pub (‘Waxy’s’) is a licensed hospitality business located in Surfers Paradise. The Respondents A.N. Burnett Investments Pty Ltd and CW Macleod Pty Ltd were and are the licensees of Waxy’s, under the Liquor Act 1992 (Qld) (‘Liquor Act’). Mr Groat, the Third Respondent, was employed at as a Duty Manager of Waxy’s on 15 February 2020 when the events which are the subject matter of the complaint occurred. Given that he was an employee of theirs at the relevant time, the First and Second Respondents accept that they are vicariously liable for any contraventions of the Act by Mr Groat, in terms of sections 132 and 133 of the Anti-Discrimination Act 1991 (Qld) (‘AD Act’).
  2. [2]
    It is common ground that on 15 February 2020, at around 6.35pm, the Applicant and her friend Ms Kelly visited Waxy’s at a time when Waxy’s was conducting a Happy Hour promotion that evening by which it provided discounted prices on some beer and wine purchases for a limited period. There was some waiting time associated with being served.
  3. [3]
    The Applicant alleged in her original complaint to the Queensland Human Rights Commissioner (‘QHRC’) that she was the subject of direct and indirect discrimination on the basis of her sex or gender, as she put it, being female, in the provision of goods and services by Waxy's. She contended in her original complaint that both she and her friend, Tanya were treated differently and less favourably than males were treated in the same circumstances, and treated in a hostile manner, compared to other patrons of the venue in being served food and beverages by the Third Respondent Manager on duty, Mr Groat. She contended that a disagreement occurred about the price being charged for drinks and other things which I will describe in detail shortly, until eventually she and her friend were refused service by Mr Groat, and male security officers ordered them to leave the premises immediately and they did do so.
  4. [4]
    The security officers that were on duty on the night of the incident were not employees of Waxy's or the TB Hotels Group but were supplied by a security firm.
  5. [5]
    When they got outside on that same night, the Applicant made an internal complaint by email to Mr Scott Davidson, whom was thought to be Operations and Marketing Manager of TB Hotels Group, which she understood to manage and operate Waxy's. In fact, he did not hold that specific role, although nothing of significance turns on it in my view.
  6. [6]
    On 17 February 2020, Mr Davidson sent an email providing a summary of her complaint and indicated that he was continuing to investigate the issue, including by a review of video footage. The complainant sent a response by email on 1 March 2020 to Mr Davidson. The complainant raised the issue of discriminatory conduct in her initial complaint on 15 February 2020 as well as in an email on 1 March 2020. The complaint was first lodged with the Queensland Human Rights Commissioner on 13 February 2021, 2 days within the allowed time of one year from the alleged contravention of the Act.
  7. [7]
    As articulated in her final submissions the Applicant contends that the issues which she contends are alive for determination are;
    1. Whether Mr Groat engaged in direct discrimination under the Act by treating the Applicant less favourably on the basis of a protected attribute, her sex, being female (in breach of ss 10 and 46 of the AD Act);
    2. Whether the less favourable treatment of the Applicant occurred in circumstances that are the same or not materially different to a male under s 10(1); (the appropriate comparator issue);
    3. Whether Mr Groat engaged in direct discrimination under the Act by treating the Applicant less favourably on the basis of an ‘attribute’ or ‘characteristics’ often imputed to females; including their voice, stature, orders and drink preferences (in breach of ss 10 and 46 of the AD Act);
    4. Whether the Respondent companies are liable for indirect discrimination in requiring the Applicant to comply with its policies on eviction of patrons, with which she was unable to comply due her sex, being female (in breach of ss 11 and 46);
    5. Whether the Respondent companies’ policies on discrimination are satisfactory or comply with their obligations under the Act; and whether the Respondents have discharged their onus.
  8. [8]
    The relief she seeks is for payment of $30,109.40 in compensation and damages (plus interest) for medical expenses, economic loss and general damages, and seeks changes to Waxy’s discrimination and employment policies, and a public and private apology.

Non-publication order

  1. [9]
    The Applicant seeks a non-publication order pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'). The order is sought on the basis that publication of the Applicant’s full name and identifying information would pose a risk to her safety due to her employment in a Commonwealth agency, expose her to a significant risk of harm from a former intimate partner who has previously perpetrated domestic violence  and place her at risk of harm from criminal elements in the hotel and alcohol industry due to her involvement in the proceedings and their nature.
  2. [10]
    The Applicant requests the use of a pseudonym for her full name and for her employment information to be de-identified.
  3. [11]
    Due to the nature of her work, which is public facing, the Applicant interacts with individuals who have mental health conditions and may have grievances with the Commonwealth agency for whom she works. I accept that there is a legitimate basis for such concerns. The Applicant attests, and I accept that she has legitimate fears for her and her children’s safety if her former partner becomes aware of her residency or location. The Tribunal has previously routinely recognised the importance of protecting victims of domestic violence from further harm through non-publication: Applicant SIL v Scheme Manager, Victim Assist Queensland, Department of Justice and Attorney-General [2021] QCAT 237.
  4. [12]
    I do not accept that she is at risk of harm from so-called unidentified “criminal elements” which she asserts exist in the hotel and alcohol industry due to her involvement in the proceedings and their nature.
  5. [13]
    The Tribunal has a discretion to balance the principles of open justice against the need to protect individuals from harm accepting that the word ‘necessary’ implies such orders are ‘not lightly made’: B v Queensland Building Services Authority [2013] QCATA 187 at [26]
  6. [14]
    In the circumstances, I am prepared to exercise my discretion under section 66(1) of the QCAT Act to make a non-publication order in this matter and that the Applicant be referred to by the pseudonym Leah in these reasons and the orders made.

Was the Complaint made out of time?

  1. [15]
    The Respondents contend that this Tribunal should exercise the discretion conferred by s 175(2) of the AD Act and “not accept the Applicant’s complaint which was made almost 7 months out of time”.
  2. [16]
    Section 138 of the AD Act relevantly required that a valid complaint be made within one year of the alleged contravention of the Act. Section 136 of the AD Act relevantly required inter alia that a complaint set out reasonably sufficient details to indicate an alleged contravention of the Act. It does not state what the consequence of failing to do that is.
  3. [17]
    As I mentioned earlier, the complaint was lodged with the Commissioner two days before the one-year limit for such claims to be made. Standing behind that proposition from the respondent is the contention that the complaint was not effectively lodged (or made) with the Commissioner until it set out reasonably sufficient details to indicate an alleged contravention of the AD Act, and which it contends she did not do.
  4. [18]
    The respondents seize upon a letter from the QHRC to the Applicant on 30 August 2021, reference to which is contained in the QHRC referral to the Tribunal, dated 15 February 2022, in which the Commissioner’s delegate wrote saying;

“The Commission is required to evaluate each complaint to consider whether the details provided are indicative of circumstances that are capable of supporting an inference of discrimination. An inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts.

You believe you were treated less favourably on the basis of a protected attribute of sex (being female) compared to how others without the attribute (men in the pub) were treated in the same or similar circumstances.

You are female and you allege you were removed from the premises after you questioned the price of Happy Hour drinks. However, there are insufficient details in your complaint to indicate that you were subject to the less favourable treatment because you are female, or that this was a substantial reason for the less favourable treatment. 

A mere belief or suspicion that you were treated less favourably on the basis of sex is not enough, without identifying something more from the circumstances of the alleged conduct to indicate an inference of discrimination. That is a link between your attribute of sex (being female) and the alleged discriminatory conduct of removing you from the pub.”

  1. [19]
    In my view it is debateable whether it was necessary to expressly show a direct evidential basis or link between her attribute of sex (being female) and the alleged discriminatory conduct of removing her from the venue. A circumstantial case or one based on inference from the known facts, including that males were not treated in the same way that night would have been enough to show the existence or an arguable link. In her original complaint there were annexures the content of which was incorporated by reference and that included lengthy email exchanges between herself and the respondent which set out in very considerable detail what she said had occurred and why she contended that it demonstrated discrimination on the basis of sex. They included her internal complaint email of 15 February 2020 as well as in an email on 1 March 2020. I will refer to those shortly.
  2. [20]
    The approach to be adopted by the QHRC in relation to sections 136 and 139 was explained by the Queensland Court of Appeal in Toodayan & Anor v Anti-Discrimination Commissioner Queensland [2018] QCA 349, [40]-[43] ('Toodayan'):

[40] As s 136(b) ADA provides, a complaint must set out "reasonably sufficient details to indicate an alleged contravention". There is no requirement at the lodgement stage to support a complaint with evidence, although that no doubt commonly occurs to varying degrees. When the complaint is supplemented with supporting material, that material will of course also form part of the details to be considered by the commissioner. Furthermore, on receipt of a complaint, the commissioner may request further information or documents and such a request may extend to a request of the complainant for supporting evidence in order to assist in the formation of the opinion required under s 139(b), although there will be limited time to do so because the commissioner must decide whether to accept or reject a complaint within 28 days of its receipt. But, however the complaint is constituted and whatever the commissioner does after it is received, it is plain that the obligation on the part of the complainant at this early stage does not extend beyond the provision of reasonably sufficient details to indicate a contravention.

[41] It is also to be observed that, although the statutory test is expressed in the same way, s 139 operates differently to s 168. In the first place, s 168 will only be engaged after the complaint has been accepted, a written response has been invited from the respondent and any attempt at conciliation has taken place. In addition, the commissioner may by that stage have investigated the complaint. Because such a complaint will already have been accepted under s 141 following consideration by the commissioner whether it was, relevantly, misconceived or lacking in substance, s 168 will only be engaged where something has emerged, either from the respondent or from the investigation, to change the commissioner's opinion. But, even more importantly, if under s 168(1) the commissioner forms the reasonable opinion that the complaint is, relevantly, misconceived or lacking in substance, the complainant must show cause to the commissioner's satisfaction why that is not so to avoid the complaint lapsing under s 168(4) whereas, under s 139, there is no onus on the complainant to prove anything.

[42] The nature of the commissioner's task under s 139(b) is informed by these statutory features as well as the protective purpose of the legislation. A complaint cannot be expected to "allege the relevant facts with the particularity of an indictment or of a pleading". Nor should it be assumed that the details supplied are comprehensive or that they aspire to do any more than indicate what is intended to later be proved to establish the complaint. Thus, when forming an opinion under that provision, the question for the commissioner is whether the details provided in and with the complaint, if proved at a hearing of the tribunal, are indicative of a contravention that is neither misconceived nor lacking in substance. A complaint will be "misconceived" if it is based on a false conception or notion such as an allegation of discrimination on the basis of an attribute that is not protected by the ADA and "lacking in substance" where the detail provided in the complaint fails to point to conduct on the part of the named respondent that is capable, if proved, of amounting to a contravention under the ADA. Obviously, because rejection will deprive the complainant of a hearing, it must clearly appear that the complaint is misconceived or lacking in substance before the requisite opinion may reasonably be formed.

[43] Often, a conclusion of discrimination will only arise as a matter of inference. So, in the absence of direct proof, the commissioner will need to consider whether the details provided in and with the complaint are indicative of circumstances that, if ultimately proved, are capable of supporting such an inference. However, where more than one inference is reasonably open on the indicated circumstances, it is not for the commissioner when forming an opinion under s 139 ADA to decide which inference is more probable; that is a matter within the exclusive province of the tribunal.

  1. [21]
    The 2024 amendments to the AD Act may also have significance here going forward in other cases, although not this one. Section 204 was amended by the Respect at Work and Other Matters Amendment Act 2024 (Qld) from 1 December 2024, although its future, as at the time of writing these reasons, has recently become uncertain. However, there is an irregularity in that section 285A which introduces the concept of a shared burden of proof for complaints, which I deal with below, did not commence on 1 December 2024 and will, pursuant to the Respect at Work and Other Matters Amendment Act 2024 (Qld), s 2(2)(a), only commence on 1 July 2025.
  1. [22]
    Section 204 provides;

204 Burden of proof—general

(1) In a complaint proceeding, if there are facts from which it could be decided, in the absence of any other explanation, that the respondent contravened the provision of the Act the subject of the alleged contravention, the respondent is taken to have contravened the provision.

(2) Subsection (1) does not apply if the respondent proves, on the balance of probabilities, that the respondent did not contravene the provision.

(3) Subsection (1) and (2) apply in addition to any other provision of the Act that provides for who has the onus of proving a particular matter.

Note— See, for example, section 11(3) and 205.

205 Burden of proof—exemption

An exemption is a defence to discrimination, and the person seeking to rely on the exemption has the onus of proving, on the balance of probabilities, that the exemption applies.

In this section—exemption means an exemption under chapter 2, part 4 or 5 that applies to discrimination.

  1. [23]
    Hence section 204(1) now provides that in a complaint proceeding, if there are facts from which it could be decided, in the absence of any other explanation, that a respondent contravened the provision of the Act the subject of the alleged contravention, the respondent is taken to have contravened the provision.
  2. [24]
    Despite the Applicant’s submission that the version of section 204 set out above as the result of the 2024 amendments applies to the way I am to decide this case, that clearly is not the case.
  3. [25]
    Section 285A of the AD Act will from 1 July 2025 provide;

285A Burden of proof for complaints about pre-commencement conduct

  1. This section applies in relation to—
  1. a complaint made before the commencement that, immediately before the commencement, had not been finally dealt with; or
  1. a complaint made after the commencement in relation to an alleged contravention of the Act that happened before the commencement.
  1. New sections 204 and 205 do not apply in relation to the complaint.
  1. Former sections 204 to 206 continue to apply in relation to the complaint.
  1. [26]
    Section 138(2) of the AD Act required the Commissioner to accept a complaint lodged after the expiration of the time limit set out in section 138(1), if satisfied that the complainant has shown good cause. In forming an opinion as to whether good cause has been shown, I take into account the comments of Justice Atkinson in the Supreme Court appeal decision of Buderim Ginger Ltd v Booth [2002] QCA 177, in which she stated:

Although it is not essential to show that there is a reason for and justification for the delay in order to show good cause, such consideration is always relevant to such a decision. In forming an opinion that the complainant has shown good cause, the Commissioner is not fettered by rigid rules but must take into account all of the relevant circumstances of the particular case such as the length of the delay; whether the delay is attributable to the acts or omissions of the complainant or his or her legal representatives, the respondent, or both; the circumstances of the complainant; whether there has been a satisfactory explanation for the delay and whether or not the delay will cause prejudice to the respondent.

  1. [27]
    Regard may also be had to what was said in Stewart v State of Queensland (Queensland Health) [2024] QIRC 103 at [221] concerning expectations on legal practitioners, which the respondents assert she is. She was certainly not practicing as such at the time. She was a public servant.
  2. [28]
    The Commissioner determined to accept the complaint and did so on the following basis;

The delay is significant being almost 7 months.

The complainant raised her concerns internally on the day the alleged incident occurred and also provided further information by email dated 1 March 2020.

Following her email dated 1 March 2020, the complainant waited almost a year before making a complaint to the Commission.

The complainant says this is because she was waiting for a response to her internal complaint, which she never received.

The complainant felt that a response may have been delayed because of the lockdowns and other disruptions caused by the COVID19 pandemic. The initial complaint was lodged within the 12-month timeframe.

Under section 141 of the AD Act, the Commission must decide whether to accept or reject a complaint within 28 days of receiving the complaint.

However, due to the backlog of files at the Commission, this timeframe was extended and the complainant was not made aware that further information would be needed until 30 August 2020.

That further information was promptly provided by the complainant on 6 September 2020. Much of the delay, therefore, was due to the delay in matters proceeding through the Commission, and not through any fault of the complainant.

There is presumed prejudice to the respondents as a result of the passage of time and the effect this will have on the memories of witnesses.

While the individual respondent was not notified of the allegations until 28 September 2021, his employer, through TB Hotels Group, had been notified of the allegations as early as 15 February 2020, who had told the complainant that they were investigating the matter.

The email from Mr Davidson dated 17 February 2020 indicates that he was 'awaiting a review of the footage by the Venue Manger' and 'comments from the Security team on the night'.

The respondents' records, including of the investigation, will assist in preserving and recalling memories.

For all the reasons set out above and considering all the factors together, I am of the view that the complainant has shown good cause to accept the complaint.

  1. [29]
    This Tribunal is not bound by the Commission’s characterisation of the complaint or to the decision to accept the complaint made out of time. The Tribunal has a discretion under section 175(2) of the AD Act to deal with an out-of-time complaint only if it considers, on the balance of fairness between the parties, that it would be reasonable to do so.
  2. [30]
    In my view it is demonstrably the case that it would be reasonable to deal with this arguably out-of-time complaint. There is no demonstrated prejudice to the Respondents were I to do so. They have been able to meet the evidentiary case against them and were well resourced and well understood the case against them to the extent that it was articulated at least and capably represented despite whatever delay occurred. Some evidence in the way of video recording of the incident was lost because it was in effect taped over after a certain time, but that had well and truly already occurred a short time after the incident. It was not lost as a result of any delay. Due to the backlog of files at the Commission, the complainant was not made aware that further information would be needed until 30 August 2020 when she then provided it. Had she been made aware of the Commissioner’s concerns earlier it is obvious that she would have responded earlier.

The comparator

  1. [31]
    The current test in section 10 of the AD Act involves determining the appropriate comparator group for proportional comparison. This has been shown to be problematic.
  2. [32]
    The comparator is the predominant means of determining causation in Australian discrimination law. The comparator is an actual or hypothetical person who does not have a particular protected attribute (sex, race, disability etc). Courts construct the comparator and are required to place them in similar factual circumstances to the complainant. Then, it is necessary to ask whether the complainant was treated less favourably than the comparator in those circumstances. If the answer is yes, that generally establishes the relevant discrimination (subject to defences). The comparative formula is found in the formulation of ‘less favourably’ tests in the Sex Discrimination Act 1984 (Cth) s 5A, the Disability Discrimination Act 1992 (Cth) s 5 and the Age Discrimination Act 2004 (Cth) s 14. 
  3. [33]
    The use of comparators has attracted stinging criticism. It was described as akin to conceptual ‘shackles’ in the joint dissent of Kirby and McHugh JJ in Purvis v New South Wales (2003) 217 CLR 92 (‘Purvis’). Indeed, dicta from the House of Lords[1] has suggested that comparators should be relegated to the status of analytical tools for reaching a conclusion of discrimination rather than necessary preconditions. Numerous bodies have suggested that the comparator test should be simplified at the federal and state levels. The NSW Law Reform Commission in its 1999 review of the Anti-Discrimination Act 1977 (NSW) identified ‘widespread dissatisfaction… conceptual difficulties… artificiality and resulting complexity’. More recently, the Australian Human Rights Commission noted, ‘the application of the comparator test … has presented significant difficulties, including complexity in interpretation and uncertainty of outcome’ (p 279). 
  4. [34]
    Section 10(3) provided that the discriminating person's motive for discriminating is irrelevant. The section includes an example in these terms and which the appellants rely on:

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.

  1. [35]
    The Respect at Work and Other Matters Amendment Act 2024 (Qld) has potentially changed this going forward and a comparator is no longer necessary. Section 11A will be due to commence on 1 July 2025 and will, assuming it takes effect, will provide that;

11AWhen does a person discriminate against another person

(1) A person discriminates against another person if the person directly or indirectly discriminates against the other person on the basis of an attribute.

(2) For subsection (1), it does not matter—

(a) whether the discrimination is only direct discrimination, only indirect discrimination or both direct discrimination and indirect discrimination; or

(b) whether the person who discriminates is aware of the discrimination; or

(c) whether the discrimination happens because the person does an act or makes an omission.

(3) Also, a person’s motive for discriminating against another person is irrelevant.

  1. [36]
    Reference should also be made to the well-known principles to be derived from the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’) as to what is the proper method for the application of the civil standard to proof of facts. In that regard the principles were conveniently summarised in this context in Leigh v Bruder Expedition Pty Ltd [2020] QCA 246 at [16], where Sofronoff P as he then was, stated:

Dixon J said that the application of the civil standard to proof of facts was not a mere mechanical comparison of probabilities. Rather, the fact finder must feel an actual persuasion of the occurrence of the relevant fact before its existence can be found. An opinion that a state of facts exists may be held according to indefinite gradations of certainly. However, except in criminal cases, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. Reasonable satisfaction on the balance of probabilities is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. His Honour said:

"This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based upon a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained”.

  1. [37]
    Section 10(3) of the AD Act provided at the time (and presently still does provide) that “the person’s motive for discriminating is irrelevant”. Section 10(1) of the AD Act requires that the complainants establish that the respondent has treated them or proposed to treat them in a discriminatory way “on the basis of” the relevant attribute or attributes.
  2. [38]
    The AD Act s 10(4) provided at the time (and presently still does provide) that if there are two 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. The focus here is on reasons for conduct, not motive or intent.[2]
  3. [39]
    The High Court in Australian Iron and Steel Pty Ltd v Banovic[3] (‘Australian Iron and Steel’) was concerned allegations of direct discrimination on the basis of sex, or gender. It was alleged that workers were retrenched because they had not been employed before a particular date. It was said that this amounted to discrimination on the basis of gender because the waiting period for employment with that employer was for a longer period for women than it was for men. Hence female workers were being retrenched because the male workers had in effect been employed longer, and before the relevant cutoff date. In the joint judgment of Justices Deane and Gaudron it was held that:

...in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or the decision. And that may also be the case where some factor is identified as common to a significant proportion of those adversely affected.

Even if it could be said that a factor common to all or a significant proportion of those who were adversely affected by the decision of AIS to retrench by the “last on, first off” method was that they were women, a further finding that that was the true basis of the decision would be necessary to render [the equivalent to section 10] applicable .... There is no finding to that effect by the Tribunal.

  1. [40]
    Hence the court in Australian Iron and Steel concluded since the reason for retrenchment was the time at which employees were employed, and even though women were more affected by those retrenchments because they were more likely to have been employed later, there was no direct discrimination.
  2. [41]
    The High Court revisited the issue in Waters & Ors v Public Transport Corporation (1991) 103 ALR 513; [1991] HCA 49 (‘Waters’).
  3. [42]
    The complaints of discrimination there arose out of a direction by the Minister for Transport to the Public Transport Corporation to introduce changes to the public transport system. One of these changes was a new ticketing system for public transport involving travellers making a scratch mark on tickets. The other change involved the removal of conductors from some trams. The disabilities of the individual appellants made it difficult or impossible for them to use the scratch tickets. Some of them could not travel on trams which did not have conductors. The Board determined that the changes involved discrimination and ordered the Corporation to discontinue the changes.
  4. [43]
    In examining the extent to which a causal connection between the basis for the relevant act and alleged direct discrimination, members of the court differed. Mason CJ and Gaudron J (Deane J agreeing) held under the heading “Section 17(1): does it require an intention or motive to discriminate?” at pages 520-521 as follows:

There is some force in the suggestion that the expressions “on the ground of the status” and “by reason of the private life” in s 17(1) look to an intention or motive on the part of the alleged discriminator that is related to the status or private life of the other person: see Department of Health v Arumugam [1988] VR 319, per Fullagar J at 327. However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation, the courts have a special responsibility to take account of and give effect to the statutory purpose: Ontario Human Rights Commission v Simpsons-Sears Ltd, at 547; see also Street, at CLR 487, 566. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, “to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status”. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of “on the ground of” and “by reason of”.

  1. [44]
    A similar view was adopted by the House of Lords in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 in relation to section 1(1)(a) of the Sex Discrimination Act 1975 (UK) which proscribed less favourable treatment on the ground of sex. Lord Goff of Chieveley (with whom the other members of the House agreed) said (at 1194): “The intention or motive of the defendant to discriminate… is not a necessary condition of liability”.
  2. [45]
    His Lordship noted (at 1194) that, if intention or motive were relevant: “it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, to save money, or even to avoid controversy. In the present case, whatever may have been the intention or motive of the council, nevertheless it is because of their sex that the girls in question receive less favourable treatment than the boys” (emphasis added). (See also the discussion by Deane and Gaudron JJ in Australian Iron and Steel, at CLR 176–7).
  3. [46]
    McHugh J differed with this approach, distinguishing between the tests to be applied as to motive, intent and causation depending on whether the discrimination was direct or indirect. He said at 103 ALR 513 at 552-553:

The words “on the ground of the status or by reason of the private life of the other person” in s 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. I am unable to accept the statement of Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 at 1193–4, and the statements of Deane and Gaudron JJ (at CLR 176-7) in Banovic concerning intention or motive to discriminate if they are intended to suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator (the discriminator) be actuated by status or private life in a provision such as s 17(1).

With great respect to Deane and Gaudron JJ, I think that the examples given by them in Banovic as to intention or motive not being a necessary condition of liability are cases which are caught by the concept of indirect discrimination which fall within section 17(5). The words “on the ground of” and “by reason of” require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (the victim). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. Of course, in determining whether a person has been treated differently “on the ground of” status or private life, the Board is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then “the ground of” the act of the discriminator was the status or private life of the victim: see Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61, per Mahoney JA at 66. But if the discriminator would have acted in the way in which he or she did, irrespective of the factor of status or private life, then the discriminator has not acted “on the ground of the status or by reason of the private life” of the victim. Likewise, if the discriminator genuinely acts on a non-discriminatory ground, then he or she does not act on the ground of status or private life even though the effect of the act may impact differently on those with a different status or private life. Thus, in Director-General of Education v Breen (1982) 2 IR 93, the Court of Appeal of New South Wales held that the Director-General had not acted “on the ground of sex” in selecting principals for non-secondary schools from a primary school promotions list rather than an infant’s school promotions list even though the use of the former list favoured male teachers. Only 1.5 per cent of teachers on the infants list were male but on the primary schools list 39 per cent of the teachers were male. Absent an intention to use the primary list to disadvantage females, discrimination in a case such as Breen can be established only by relying on a provision similar to section 17(5). At the relevant time, however, the Act had no such equivalent.

The effect of the introductory words of section 17(5), however, is that an act which falls within that sub- section is deemed for the purpose of section 17(1) to constitute treating “the other person less favourably than the first-mentioned person treats or would treat a person of a different status or with a different private life”. If the alleged discriminator has in fact treated the other person “less favourably”, in the circumstances specified in section 17(1), then discrimination is made out and section 17(5) is irrelevant. Section 17(5), therefore, operates only in situations where section 17(1) is inapplicable. The hypothesis upon which section 17(5) is built is that the alleged discriminator has not in fact treated the other person “less favourably”. Yet discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different. Thus, both direct and indirect discrimination involve the notion of one person being treated “less favourably” than another.

How then can a case of indirect discrimination come within section 17(5) and yet not come within section 17(1)? The answer is that in section 17(5) “discrimination” is defined in an artificial sense and is dealing with situations where a requirement or condition is imposed equally but has an adverse or more adverse effect on persons of a particular status or with a different private life. A person may be guilty of discrimination under section 17(5) although he or she was not actuated in any way by status or private life.

  1. [47]
    In Purvis, the High Court considered these authorities in the context of a claim of disability discrimination.
  2. [48]
    In that case, the relevant Act stated that it was unlawful for an educational authority to discriminate against a student "on the ground of" the student's disability. It stated that a person discriminates against another person on the ground of that person's disability if, "because of" the person's disability, the discriminator treats him or her less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
  3. [49]
    Chief Justice Gleeson said that

In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex.

  1. [50]
    After referring to the judgements referred to above from Waters, of Mason CJ and Gaudron J and that also of McHugh J, the Chief Justice said at [159]-[160]:

[159] …However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ.

[160] The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.

  1. [51]
    After referring to later authority he said:

[166] 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. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act.

  1. [52]
    The leading judgment in Purvis was delivered by Gummow, Hayne and Heydon JJ. For present purposes, relevantly, they identified the issue under consideration here as the “second issue” in the appeal, identified as being whether the Commissioner’s conclusion that the student’s behaviour occurred as a result of his disability and that "in this case, Daniel's behaviour is so closely connected to his disability that if … less favourable treatment has occurred on the ground of Daniel's behaviour then this will amount to discrimination on the ground of his disability". They did not reference in their reasons the cases discussed by the Chief Justice on how to identify the "true basis" for the act or decision.
  2. [53]
    The question was posed in these terms by reference to what was required to show direct discrimination:

[224] The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.

[225] In the present case, the circumstances in which Daniel was treated as he was, included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions: (i) How, in those circumstances, would the educational authority have treated a person without Daniel's disability? (ii) If Daniel's treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel's disability? Section 5(1) could be engaged in the application of section 22 only if it were found that Daniel was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Daniel's treatment.

  1. [54]
    Hence those judges held that the 'circumstances referred to in section 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person' by the alleged discriminator.
  2. [55]
    In Purvis, the circumstances in which the student was treated as he was included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils were. Accordingly, the comparator was a student who was not disabled, but who had acted in the same violent manner as had Daniel. Callinan J agreed with Gummow, Hayne and Heydon as to the circumstances that were to be ascribed to the comparator.
  3. [56]
    The judgement of the dissenting judges McHugh and Kirby JJ, on the issue of the appropriate comparator and as to the causation issue are informative. As to the former they said:

[130] Provisions that extend the definition of discrimination to cover the characteristics of a person have the purpose of ensuring that anti-discrimination legislation is not evaded by using such characteristics as "proxies" for discriminating on the basic grounds covered by the legislation. But the purpose of a disability discrimination Act would be defeated if the comparator issue was determined in a way that enabled the characteristics of the disabled person to be attributed to the comparator. If the functional limitations and consequences of being blind or an amputee were to be attributed to the comparator as part of the relevant circumstances, for example, persons suffering from those disabilities would lose the protection of the Act in many situations. They would certainly lose it in any case where a characteristic of the disability, rather than the underlying condition, was the ground of unequal treatment.

  1. [57]
    In relation to the causation question McHugh and Kirby JJ said;

[148] The words "because of" in s 5(1) of the Act indicate that it is the reason why the discriminator acted that is relevant. This interpretation is also consistent with s 10 of the Act, which refers to an act done for two or more "reasons". In dealing with s 10 the Explanatory Memorandum to the Disability Discrimination Bill also stated that "[i]n relation to direct discrimination the reason that someone has done a particular discriminatory act is very important." However, the cases show differences of opinion concerning the relevance of the alleged discriminator's motive or intention.

[149] A "but for" test was applied by Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission where his Lordship said:

There is discrimination under the statute if there is less favourable treatment on the ground of sex, in other words if the relevant girl or girls would have received the same treatment as the boys but for their sex. The intention or motive of the defendant to discriminate … is not a necessary condition of liability; it is perfectly possible to envisage cases where the defendant had no such motive, and yet did in fact discriminate on the ground of sex. [Otherwise] it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but … because of customer preference, or to save money, or even to avoid controversy.

[150] By placing the words "intention" and "motive" together and denying that either is necessary for a finding of direct discrimination, his Lordship opened the way for the submission that direct discrimination does not contain an intention element. However, intention and motive are not the same thing.

[151] In James v Eastleigh Borough Council, Sir Nicolas Browne-Wilkinson VC rejected the "but for" test. His Lordship said:

[O]ne is looking, not to the causative link between the defendant's behaviour and the detriment to the plaintiff, but to the reason why the defendant treated the plaintiff less favourably. The relevant question is 'did the defendant act on the ground of sex?' not 'did the less favourable treatment result from the defendant's actions?'

[152] His Lordship said "the legally determinant matter is the true reason for the defendant's behaviour, not his intention or motive in so behaving."

[153] But on appeal the House of Lords reversed the decision. Lord Goff, together with Lord Bridge of Harwich and Lord Ackner, reaffirmed the objective "but for" test as the relevant test. However, the dissentients, Lord Griffiths and Lord Lowry, criticised the "causative" approach as dispensing with essential statutory criteria. Lord Lowry said:

It can thus be seen that the causative construction not only gets rid of unessential and often irrelevant mental ingredients, such as malice, prejudice, desire and motive, but also dispenses with an essential ingredient, namely, the ground on which the discriminator acts. The appellant's construction relieves the complainant of the need to prove anything except that A has done an act which results in less favourable treatment for B by reason of B's sex, which reduces to insignificance the words 'on the ground of.' Thus the causative test is too wide and is grammatically unsound, because it necessarily disregards the fact that the less favourable treatment is meted out to the victim on the ground of the victim's sex. (original emphasis)

[154] Since James, however, the United Kingdom courts have moved away from the "but for" test. In Nagarajan v London Regional Transport, Lord Nicholls of Birkenhead held that it is necessary to consider the reason of the alleged discriminator but that his or her motive is irrelevant. His Lordship said:

[I]n every case it is necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator …

The crucial question just mentioned is to be distinguished sharply from a second and different question: if the discriminator treated the complainant less favourably on racial grounds, why did he do so? The latter question is strictly beside the point when deciding whether an act of racial discrimination occurred … Racial discrimination is not negatived by the discriminator's motive or intention or reason or purpose (the words are interchangeable in this context) in treating another person less favourably on racial grounds. In particular, if the reason why the alleged discriminator rejected the complainant's job application was racial, it matters not that his intention may have been benign.

[155] In Chief Constable of the West Yorkshire Police v Khan Lord Nicholls again rejected the "but for" test. He said:

For the reasons I sought to explain in Nagarajan v London Regional Transport … a causation exercise of this type is not required … The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.

[156] The House of Lords recently affirmed these principles in Shamoon v Chief Constable of the Royal Ulster Constabulary. Lord Hope of Craighead said that in most cases "the reason why" will call for some consideration of the mental processes of the alleged discriminator.

[157] These more recent English authorities are consistent with the approach taken by the Australian courts. In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex.

[158] In Waters v Public Transport Corporation, Mason CJ and Gaudron J (Deane J agreeing) approved the view of Deane and Gaudron JJ in Banovic that motive or intention to discriminate is not required. Their Honours said that it is enough if the difference in treatment is based on the prohibited ground, notwithstanding an absence of motive or intention.

[159] In Waters, McHugh J rejected the statement of Lord Goff in Birmingham and the statements of Deane and Gaudron JJ in Banovic concerning motive or intention, in so far as they might suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator was actuated by the prohibited ground. His Honour said:

The words 'on the ground of' and 'by reason of' require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act ('the victim'). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did.

However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ.

[160] The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.

[161] Subsequent decisions have applied this approach to the question of causation. In Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd [1993] FCA 796; 46 FCR 301 Lockhart J said:

The plain words of the legislation … necessarily render relevant the defendant's reason for doing an act, that is the reason why the defendant treated the complainant less favourably.

[162] His Honour also said that the presence of intention, motive or purpose relating to health does not necessarily detract from the conclusion that there is discrimination on the prohibited ground – in that case, sex.

[163] In University of Ballarat v Bridges [1995] 2 VR 418, having considered the decisions in Banovic and Waters, as well as dictionary definitions, Ormiston J concluded that both "ground" and "reason" connote a basis that actuates or moves a person to decide a matter or to act in a particular way. His Honour said:

[N]otwithstanding that it has been said on many occasions that the Act should be given a broad interpretation, the object of the legislature was to look at the reasoning process behind the decision, conscious and unconscious, at least so far as direct discrimination is concerned.

[164] His Honour said that motive and purpose should be treated as largely irrelevant so long as it can be shown that the person charged intended to do an act that in fact amounts to unlawful discrimination.

[165] It is true that statements of Toohey J and Gummow J in IW v City of Perth (1997) 191 CLR 1 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.

[166] 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. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act. The Commissioner appears to have wrongly characterised the principle that he applied – which was the correct principle. He correctly held that the benevolent motive of the principal did not excuse the discriminatory treatment of Mr Hoggan.

[167] The Commissioner also correctly found that, because Mr Hoggan was treated less favourably because of his behaviour, he was discriminated against on the ground of his disability. Mr Hoggan's behaviour is a manifestation of his disability. In X v McHugh (Auditor-General for the State of Tasmania) (1994) EOC 92-263, Sir Ronald Wilson said that it is enough if an employer is shown to have discriminated because of a manifestation of a disability. The decision in X v McHugh was followed in Y v Australia Post where the Commission said:

[T]o discriminate against a person suffering a mental disorder because of the behaviour of that person which directly results from that mental disorder, is to discriminate against that person because of the mental disorder.

[168] The validity of this principle can be seen by considering situations where the disability manifests itself in ways that society perhaps finds more acceptable than in cases where the disability manifests itself in dangerous conduct. In Randell v Consolidated Bearing Co (SA) Pty Ltd, for example, an employer was held to have discriminated against an employee on the ground of his disability by dismissing him because of his difficulties with the stock numbering system used in the employer's warehouse. These difficulties were a manifestation of the employee's dyslexia.

[169] The Commissioner also found that the reason for Mr Hoggan's exclusion from the school, unlike the reason for his suspensions, included issues other than his behaviour. The Commissioner found that, although Mr Hoggan's behaviour was a factor in his exclusion, it was not the only factor. He found that the principal had also acted because Mr Hoggan was unable to cope with the stresses of high school life as a result of his disability. Section 10 of the Act states that, if an act is done for two or more reasons and 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), the act is taken to be done for that reason. Because the Commissioner found that the decision to exclude Mr Hoggan was made on this basis, the Commissioner's decision can be supported without having to consider issues relating to behaviour.

[170] In our view, when the Act is applied according to its true construction, the Commissioner was correct in finding that the State through its agents had discriminated against Mr Hoggan.

  1. [58]
    As Justice McHugh said in Waters “on the ground of” and “by reason of” require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of “the victim”.
  2. [59]
    Hence the protected attribute to use the language of the Queensland Act, in this case the Applicant’s sex as a female, must be at least one of the factors which moved the discriminator to act as he or she did. And as his Honour said, of course, in determining whether a person has been treated differently “on the ground of” that matter this Tribunal is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of sex then “the ground of” the act of the discriminator was the sex of the victim.

The Applicant’s case concerning the events of 15 February 2020 and discrimination in the goods and services area

  1. [60]
    On the night of the incident which is complained about, at 7:57 pm the Applicant wrote to the hotel saying she would like to lodge a formal complaint about the “disgraceful service and unacceptable treatment” she and her friend Tanya received that evening and asked that they contact her to discuss it further.
  2. [61]
    Shortly afterwards, the Applicant had a lengthy conversation with one of the Hotel Staff Scott Davidson whom I have already referred to and who questionably described himself as the Group Operations and Marketing Manager for TB Hotels Group. The respondent says he had no such position, but it does not matter.
  3. [62]
    Mr Davidson recounted the conversation with her in an email 2 days later. He was not called by either party to give evidence. He left employment with the venue shortly after this incident.
  4. [63]
    Mr Davidson wrote that she had said that the Duty Manager Shane Groat incorrectly advised that Happy Hour finished at 6pm, apparently unaware of the recent changes being that they were 4 till 7pm. She told him the red wine ordered was not “listed at the advertised $5 per glass price”. She had said that she and Tanya made several reasonable queries including the price, the types of drinks on offer and she felt they rushed and were served in a condescending tone due to the impression from Shane that they were holding up other patrons from being able to take advantage of the soon to be expired Happy hour prices.
  5. [64]
    He wrote that she had said that they then ordered two iced waters and felt again that the response was one of frustration and or a condescending nature, again feeling like they were not valued as a customer who was also planning on eating at the Venue. He wrote that she had said that there was confusion about who was serving her and once Mr Groat took over her order, he placed a beer in front of Tanya that was not hers. Yet, she believed it was and started to drink it, then realising it was the Applicant’s and this was swapped so as not to exacerbate the frustration felt by Mr Groat. Following a moment to search for change for the price of the drinks that were higher than anticipated, Mr Groat began to speak into his security device and summons over 4 security guards, while she was already feeling “pressure and indirect intimidation from a male-dominated environment at the bar”.
  6. [65]
    Mr Davidson wrote that she had said that subsequently and without further warning, they were escorted out of the venue due to the perceived reason of being unruly in the bar, stating she and Tanya felt humiliated and embarrassed and that the entire incident smacked of gender-based discrimination, or at least managerial incompetence. She told Mr Davidson that the Duty Manager Mr Groat proceeded to come outside of the Venue and continued “to argue with her as well as justify his decision to have them removed from the premises”. Mr Davidson wrote that she had said that she said Mr Groat would not supply his name or other personal details other than his first name at this time and no resolution was achieved with this further interaction.
  7. [66]
    I pause to mention that this is the only place in any of the email exchanges or the Complaint or in her evidence where it was asserted that he had an argument with her outside the venue as well as seeking to justify his decision to have them removed from the premises. In her affidavit in this Tribunal, she said that she dealt only with security staff, and she saw the Manager Mr Groat come to the front of the premises to see that they had left, but did not suggest that she had an argument or discussion with him at that time.
  8. [67]
    Mr Davidson wrote that she had said that the security team, to whom she held no ill-will were polite and stated they were unsure why she was being evicted but had to follow the direction of the venues on shift manager. She stated that this was the first time in her life that she had ever been evicted from a licensed premise and the humiliation was pronounced.
  9. [68]
    The Applicant replied to his email a few days later on 1 March. There she said that she had a couple of draft comments or clarifications to the information contained in his email. She then wrote;

1. Tanya and I entered the premises to have an Irish meal for our dinner in the restaurant area. I noticed that the venue had a male dominated atmosphere. The bar was filled with men. I felt like it was an intimidating atmosphere for two unaccompanied women. We knew it was still Happy Hour and it would be cheaper to order drinks during this period. We decided to go straight up to the bar prior to finding a table for dinner. The bar was busy. We waited for some time at the bar prior to being served. Tanya was served first by a female bar attendant. I waited longer to be served. I felt that it was quite a long wait.

At some stage several minutes later, I was able to signal to the male bar attendant and gained his attention. I now understand this person to be Shane, the venues on shift manager. Shane began to serve me. l knew that Tanya was being attended to by a female bar attendant alongside me to my left.

2. I am not sure about which red wine was listed but Tanya might know. I intended to purchase a 'house' red wine for the advertised Happy Hour price of $5.00 and a beer, as did Tanya.

3. Tanya and I made several reasonable enquiries as to what might be available, including the price, and the types of drinks on the Happy Hour special.

I noticed that Shane had a condescending manner and tone when he communicated with me. He was not friendly. At no stage did he smile.

Shane displayed an arrogant attitude at all times. He even glared at us. He acted like it was our fault when he made mistakes. He was constantly looking at the men who were waiting behind us. Shane's demeanour toward us was impatient and rude. I felt like we were being treated less favourably than the male patrons around us.

4. At the end of my order I politely asked Shane for 2 x large iced waters. Shane seemed annoyed by this request. Shane's manner and attitude made me feel uncomfortable. I felt as though he thought that we were holding up other customers who also wanted to order drinks during the allocated Happy Hour period.

5. Initially, Tanya was being served by a female bar attendant. Tanya and the female bar attendant chatted together in a friendly manner. Several minutes went by prior to me ordering a beer from Shane. I ordered the same beer as Tanya had already ordered from the female bar attendant. Shane placed the beer in front of Tanya instead of me. The female bar attendant who was serving Tanya - and had already partially starting pouring a beer for her - apparently thought that Shane had taken over from her and was now completing Tanya's order. At this point it seems that Tanya was not being served by anyone. A few minutes later, Shane poured a red wine, a Shiraz, for me. He again placed the drink in front of Tanya instead of me. Tanya thought this drink was for her. She took a sip of the red wine. I noticed this. It seemed to me that it would be easier if Shane poured the next shiraz and gave it to me, instead of Tanya. It seemed reasonable that Tanya might keep the glass of red wine that was in front of her. After all, Tanya and I both ordered the same two drinks: one beer and one Shiraz.

Shane appeared annoyed by this and seemed to expect me to take the red wine that Tanya had already sipped. I did not make a fuss, but thought that I'd simply wait and have the next Shiraz that would soon be poured for Tanya.

6. Following a moment to search for change for the price of the drinks that were higher than anticipated, I paid $12.00 to Shane. I thought that the two drinks would cost $5.00 each according to the advertised Happy Hour price. I had two five dollar notes in my hand. It was my understanding that this amount would allow me to purchase two drinks for the Happy Hour price. I wondered whether Shane would also charge Tanya $12.00 instead of $10.00 as well. Tanya mentioned to Shane that it was not yet 7 pm. Earlier Shane had incorrectly stated that Happy Hour had already ended at 6 pm.

(He said) the till dictated what he charged us and that it didn't matter what the time was: the till set the price. I noticed that the time was not yet 7.00 pm when I checked my iPhone.

I politely stated to Shane that the time was not yet 7 pm and we had been waiting to make an order since about twenty minutes before 7 pm. I asked if he would honour the advertised Happy Hour price. Shortly afterwards and without further warning Shane began to speak into his security device and summoned for the security guards.

We felt there was no reason for him to take such extreme and rapid action. Tanya and I were feeling shocked, humiliated, intimidated, embarrassed and confused.

7. Subsequently and without further warning, we were surrounded by male security officials. We felt alarmed and scared. We told the security staff that we had done nothing wrong and simply wanted to sit down and have a meal. They said that they had to follow the instructions of their manager. I said I wanted to speak to the manager's manager.

Tanya and I were escorted out of the venue. A spectacle was made of us. I noticed that a large number of people were staring at us. A number of male patrons were looking at us with apparent disgust. We felt humiliated and embarrassed. We felt that we were being treated far less favourably than the other mostly male patrons at the bar. We noticed that the only other women at the bar were in the company of a male partner. We felt that we were being discriminated against on the basis of sex.

Tanya and I did not make a scene. We were not rude to anyone. We did not raise our voices. We did not speak rudely to anyone or swear at any time during the entire incident.

We make no complaint against the security staff as they were simply following instructions. The security staff gave us the name of the manager.

8. The manager Shane proceeded to come out to the front entrance of the venue as were leaving. He refused to give his name. He did not try to resolve the issue. He said nothing to attempt to negotiate with us.

We understood that we were being excluded from the venue on the basis of gender. We were treated with contempt due to our polite and reasonable questions about the Happy Hour offer prior to having an opportunity to order an Irish meal of pork sausages and mash which we had been looking forward to.

9. We stated that the security team, who we hold no ill will, were polite and stated that they had to follow the direction of the venues on shift manager. We stated that this is the first time in our life that we have ever been evicted from a licensed venues premises and the humiliation was pronounced.

A public spectacle was made of us. It was a very embarrassing and upsetting experience especially in the context of the bar being mostly filled with males. We strongly felt that there had been an abuse of power unfairly perpetrated toward us. We felt that this entire situation would never have occurred if we were to men at the bar rather than being two women who were unaccompanied by men at the bar.

  1. [69]
    On 6 September 2021, the applicant outlined her case to the Commission following a letter to her seeking that she do so and said as follows;

…there is clear evidence I was treated less favourably by Waxy's Irish Pub on the basis of a protected attribute (sex, being female), compared to how others at the bar without the protected attribute (sex, being men) were treated in the same circumstances.

The clear inference is that we were treated less favourably [as women] than men were being treated at the bar. The inference can be drawn by logical deduction:

1. The bar was mostly full of men;

2. At the time we the only unaccompanied females ordering from the bar;

3. We were treated less favourably when we were ignored and then left to wait for 10 - 15 minutes longer than males ordering at the bar and we were then evicted from the premises; the males were served by the barman promptly and courteously; we were older women who questioned the happy hour price and we were evicted;

4. Therefore, we were treated less favourably because we were female: it was the substantial reason.

We were not intoxicated.

It was after 6:30 pm when we entered the bar. Neither myself or Tanya were intoxicated prior to entering the bar. We entered Waxy's Irish Pub to have our evening meal in the restaurant area inside the venue. The seating area for dining was across the room from the bar. We decided to order our drinks prior to ordering from the restaurant area where we were planning to sit down to have an Irish meal for dinner.

Waxy's Irish Pub advertised 'Happy Hour' from 4 pm- 7 pm. A male bar attendant, who we now know to be Shane the Duty Manager was one of the staff members serving drinks. There were other bar attendants on duty.

At the time, Waxy's Irish Pub was mainly full of men. I would estimate about 20 to 30 males were standing along the entire bar or were drinking or sitting in the surrounding tables, or waiting to order drinks at the bar.

The majority at the people at bar ordering drinks were males. We were the only unaccompanied females in the bar, although there were potentially a few other females in the vicinity of the bar accompanied by a male partner.

Tanya and I were waiting to order our drinks quite some time before 7:00 pm, I would estimate we started waiting at the bar at about 6:40 pm. After ordering we were charged an incorrect price for all of our drinks.

The drinks at happy hour price were $5.00 each. We made a polite enquiry about happy hour not yet being over when we paid for our drinks as we noticed that we had not been charged the happy hour price. Shane, the duty manager, then called security. He asked them to escort us from the premises. I make no complaint about the security officers who treated us professionally and did not manhandle us.

At the time I heard a man, who was standing behind me at the bar, also question the price of happy hour drinks and when it ended - and he was not treated with disdain and he was not evicted from the premises, nor was he asked to leave.

It was because we were female, because we were slow and generally what is ordered by females at bars is more complex and complicated, such as wines, cocktails, and ice water. We would suggest it was a different order because we were female.

We certainly asked more questions about our order. Women may well ask and enquire more about specials or perhaps raise a question about the product been purchased. We potentially suffered height discrimination as an aspect of gender, in that we were either overlooked or not noticed whilst waiting to order our drinks. The point is that he subsequently showed disrespect and no had patience with us: his body language clearly indicated that he was concerned about the men who were waiting behind us, and not the females. We were a hassle, a nuisance: it felt like we were not allowed to be there. It seemed like it was a 'males only' kind of domain.

We did not do anything that might be interpreted to cause any trouble. We would say we stood out because of our appearance as women, we looked and dressed differently in a bar full of men. He stopped service. He then asked the security officers to remove us from the premises.

We were made a spectacle of. We wanted to order our drinks to consume with our dinner in the restaurant. We were not allowed to order our meals, which he also denied us. Being female was a substantial reason for the less favourable treatment. There was one female bartender, who served my friend, the male bartender was mainly serving men. Shane didn't overtly state that we were not being served because we were females, however we would submit that at least the substantial because we were female, we didn't have a male with us, unaccompanied females and perhaps if we 'had a bloke' we would have been served properly.

There was video footage of the incident, and the atmosphere will be clearly visible on the video footage. It was not just a vibe; you could almost sense the testosterone in the atmosphere at the bar.

I also note that Shane was of relatively young appearance and was probably in his 20s or early 30s. I would also consider that I suffered age discrimination - a patronising, young man potentially discriminated against older women. He was in his 30s - and women are either flirted with or invisible, especially at Surfers Paradise, where women are often objectified and treated terribly.

Moreover, we subjectively felt discriminated against, humiliated, embarrassed and made a spectacle of and we were subject to a lot of staring by the barman, and the men surrounding the bar and all the patrons of the venue as we were humiliatingly escorted out by four male members of the venue's security staff. Immediately we both strongly felt that if we had a man with us, or had been in the company of a man or men, this situation would never have occurred. Even if it is not directly relevant to establish discrimination, it is a fact, and we (Tanya and I) subjectively felt humiliated. It was a genuine and honest belief and strong feeling we had at the time of the incident.

  1. [70]
    Later in her submission, she said it may be that this was a novel case, and my case could be a test case for women in similar circumstances. Two things are to be noted from this, first, the assertion that the conduct amounted to a young man potentially discriminating based on age against older women, a suggestion not advanced now, and what I see as a concession that it was their subjective position that they felt discriminated against, even if they weren’t.
  2. [71]
    The evidence set out at length in the Applicant’s affidavit is mainly consistent with these more contemporaneous versions and I take it all into account as well as her oral testimony. In her affidavit, she said that while waiting to be served, before ordering, she planned in her head how much money she would need to purchase two drinks because she was suffering financial hardship at the time and was very conscious of the costs of the night. She said there that Mr Groat charged her seven dollars for the beer and had already paid the amount of seven dollars for one of the drinks, the beer, but said he knew she should have only paid five dollars because it was happy hour. She specifically had two $5 notes and then had to fish around and try you find the extra $2 in her purse. That may have taken a while. She said words to the effect of Mr Groat: "May I order a glass of wine, please? May I ask what is your house red? Is there a shiraz? Can you recommend any of the wines?" At the end of the order, she said to Mr Groat words to the effect: "May I please order two large ice waters?"
  3. [72]
    She swore in her affidavit that she then said words to the effect to Mr Groat to Mr Groat in a polite manner and not in a raised voice: "Would you please honour the happy hour price? The drinks should be happy hour price because we have waited since well before 7pm." She said she noticed a male patron to her left a bit further along the bar paid $20 for four schooners to Jojo at the bar, which one can infer left her to have sense of having been badly treated. Mr Groat then shouted in a loud, raised voice: "I have refunded the drinks. Those drinks aren't yours to drink!"
  4. [73]
    In her oral evidence under cross-examination, she agreed that when she made what she called “several reasonable inquiries about what was available and the happy hour timing” Mr Groat did give her answers to some of her questions. She heard him say it was close to seven pm. It was suggested that Mr Groat said that it was after seven and the till set the price, not him, which meant it would not be charged at $5 to which she said she asked if he would honour the happy hour price. She accepted in her oral evidence that she was frustrated and that it was disappointing and that she wasn't aware that the time had ticked over to 7pm. This concession was inconsistent with her earlier written statements to the effect that it was not yet seven pm when she challenged him. She agreed that she was disappointed at having to wait only to be charged the full price. She denied being argumentative.
  5. [74]
    Part of the First and Second Respondents’ case was that there was a discretion to charge a lower price notwithstanding that the till was set up to charge the lower price until 7 pm then automatically increase prices at the end of the designated happy hour. Mr Groat did not say that this was his understanding.
  6. [75]
    The Applicant accepted that it was her contention that one of the attributes of being a female was that they may prefer wine and cocktails, which were somehow seen by her to be more sophisticated drinks. But she then conceded that her order was for a beer and that men were more likely to order a beer than women. That is not to suggest that this is objectively true. Rather, this was her claim. The other drinks she and her friend ordered were water and a red wine. In a bar like this one, they would by no means be treated as more sophisticated drinks amongst the range of drinks available.
  7. [76]
    The other things she claimed were attributes of women customers included that women were more likely to ask questions, however, she agreed that men also asked questions.
  8. [77]
    She was asked about not being accompanied by a male at the bar and it was put and she agreed that Mr Groat wouldn't have known if she was unaccompanied or not at the bar although she was with another woman at the bar, it did not mean that a man was not with her nearby. There is no circumstantial evidence that would suggest that her being accompanied by a male at the bar was a consideration in the decision to evict her.
  9. [78]
    One of the other suggested attributes that she suggested for women, was that they were quieter and shorter than men. There is no objective evidence to support the contention that that is an attribute associated with being female. Nor is there any circumstantial evidence that would suggest that her height or her quietness was a consideration in the decision to evict her. She conceded that she didn't claim to have been discriminated against based on her height. It was really about the difficulty of getting served in a busy bar. It was suggested but she rejected the contention that the attributes that she claimed she had and were claimed to be the subject of discriminatory conduct actually had nothing to do with the way she was treated and nor was her sex. Her conclusions in that regard depend on inferences about why Mr Groat acted as he did.
  10. [79]
    She contended that she was not a person who flew off the handle or made a big deal of things, and I readily accept that evidence.
  11. [80]
    Later in cross-examination, she conceded that she was disappointed with the service and that Mr Groat “wasn't concentrating” and was dismissive of them. She drew this conclusion because he put her drinks in front of her friend Tanya and when she ordered an ice water, he “became angry or frustrated” because, she concluded, of his attitude toward the order that she had made. She said there was no queue and most of the people around her were males. She described his demeanour as “disjointed” and that he seemed annoyed, that his face was slightly red and that he looked angry.
  12. [81]
    She was asked about her friend Tanya's reaction when Mr Groat told her happy hour ended at 6. To that Tanya, said no it was 7 and another man waiting to be served also said this to which Mr. Groat was said to have gone and checked and came back and said to the man that he was right.
  13. [82]
    She said that they were not particularly concerned about anything until Mr Groat called security and they were surprised or shocked and asked why this was happening since they didn't do anything and we're feeling very anxious.
  14. [83]
    One of the matters that went to her credit was that she made a claim for economic loss of $18,874 which she contended she suffered when she lost her job at a law firm, and which she attributed to the incident in question. She conceded in cross-examination that she lost the job at the firm because of a want of work and that she would have lost that job irrespective of what happened during this incident. It was also suggested that she didn't try to mitigate her loss by trying to get another job. Her response was that she did not recall. That is hardly likely, in my view. It does suggest to me that to some degree she sought to attribute this incident as the cause of things in her life that were not attributable to this incident as justifying claims that she must have known were not in any way causally related.
  15. [84]
    She was questioned about why she did not call her friend Tanya as a witness even though she was present for all of the events of that evening. Again, her response was rather unsatisfactory. That was that Tanya was not an Australian citizen and therefore didn't have “legal standing”. That would in no way have prevented her from being called a witness.
  16. [85]
    When it was suggested that Tanya was the only independent third-party witness to the events of that night, she responded that she didn't have Tanya's address and didn't know what her version of events was, although she accepted that she spoke to her after the event and they together decided that they had been evicted on the basis of their sex. In re-examination, she clarified that she and Tanya had talked about the events that night “multiple times” that evening and were both upset, embarrassed and humiliated.
  17. [86]
    She said that she emailed and phoned Tanya to try to get her involved but she wasn't interested and didn't want to cause problems. That was said to be possible because one of her friends worked at that venue as a duty manager. She said she did not summon Tanya using the tribunal's processes because she didn't have her address even though she believed her evidence would support the applicant’s case. Exactly what Tanya said had happened is not recorded anywhere, even in secondary material such as the Applicant herself recounting what Tanya had told her. I am unable to draw any adverse inference from the failure to call her.
  18. [87]
    Scott Davidson, the self-described Group Operations and Marketing Manager for TB Hotels Group who is supposed to have spoken to one or both of them about what happened was not called as a witness by either party either. I am unable to draw any adverse inference from the failure to call him either.
  19. [88]
    The best and most contemporaneous evidence of the events of that night would have been the security camera footage, however, neither party was able to avail themselves of it for the purposes of the hearing. Security staff did review it that night but not for purposes that matter here.
  20. [89]
    There is, however, a contemporaneous record in the Incident Register for that night which was written up and signed off by one of the security team. It records that at 7 pm on that evening at the front bar, a female with dark blonde hair of a specified height got into “an argument with” the duty manager. The report records that at seven pm, security was called to the front bar by the duty manager to remove “two ladies” who had got into an argument with him and that one of the security officers politely explained the situation to the ladies and asked them to leave. It records that they left without incident.
  21. [90]
    The security guards apparently reviewed the CCTV footage and wrote in the report that at no stage was there any physical contact between the guards and the 2 customers, but it does not record anything concerning what the footage showed about the incident itself.
  22. [91]
    Mr Burnett swore and was not challenged on his evidence, that he spoke to the bar staff there that night and he was told that the applicant had been argumentative. The person who told him that was not identified but it is consistent with what the Incident Register for that night recorded.
  23. [92]
    Other incidents recorded in January and February of that year show that, apart from this incident, there were 9 other entries involving evictions of customers and in all but one of those cases the person being evicted was male.
  24. [93]
    As I have mentioned already, part of the Applicant’s case was that this venue was dominated by male culture and this in some way or another explained Mr Groat's behaviour on that evening, in the sense that somehow, he was pandering to that male culture and acting to the detriment of female patrons. That proposition was entirely repudiated by Mr Groat and also by Mr Burnett.
  25. [94]
    Mr Burnett swore and I accept that it is a traditional style tavern, with bars, bistro, gaming machines, TAB, Keno and retail liquor sales, with premier function facilities that cater for both intimate gatherings and large functions. They prided themselves on being “a lively pub full of good people, good food and great drinks, trading 10am to 3am, 7 days per week, welcoming locals and tourists alike”.
  26. [95]
    In my view, Mr Burnett’s evidence was credible and reflected precisely what one would expect from a responsible licensed venue.
  27. [96]
    Mr Groat swore had an affidavit in which he swore and genuinely conceded in his evidence as well that he had no specific recollection of the incident.
  28. [97]
    In cross-examination, he recalled that Scott Davidson had discussed the matter with him then although there he could not recall precisely when. That is consistent with what Mr Davidson wrote in his email to her on the 7th of February, where he mentioned that the venue manager was awaiting a review of the footage. He was also supposed to discuss it with the security team. Mr Groat swore that he was aware of the incident but only after when the complaint was made to the Commissioner almost a year later. He attempted then to discuss it with his co-worker who was behind the bar that night but she had nothing to say about it either.
  29. [98]
    It was put to him that the reason he could not recall the incident was because the Applicant had not been aggressive that night and that it was an unremarkable event.
  30. [99]
    His response was to say that he had worked in Events Operations for 30 years and he has had often had to evict people of all races and all sexes. Some might have been removals on busy or week nights. When he has people removed, he takes account of a lot of considerations, but principally removal will occur where there is obnoxious behaviour or patrons are being argumentative with staff. This particular venue was what he described as being in a high-risk zone and they tolerate very little in the way of poor behaviour from customers. 
  31. [100]
    It was suggested to him that if a woman was ordering a beer and a wine and questioned the price, this might irritate him. However, he contended that he was a wine drinker himself and that people questioning such matters would not have been an issue for him.
  32. [101]
    As for the character of the place, he swore that his job was to ensure things operated effectively and he paid attention to everybody. If questions were asked about happy hour he would answer them. He said that he had never had one customer complain in thirty years of working in these kinds of venues.
  33. [102]
    In my view, Mr Groat’s evidence was credible and I accept it.
  34. [103]
    Mr Burnett swore and I accept that in the entire time he had known Mr Groat, he had never known him to be anything other than the responsible, bright and even-tempered manager who consistently received positive feedback from those who worked with him and whom he managed. He swore that Mr Groat has had years of experience in the hospitality industry and maintained a cool head regardless of circumstances. At no point in time had he witnessed or had knowledge of Mr. Groat acting in such a way that could be considered discriminatory against any patron or person, for any reason or on the basis of any protected attribute.
  35. [104]
    Mr Groat didn't usually work in this venue but had been brought in there to work at that night. Burnett said and I accept that Mr. Groat's role at the time relevant to the event was Duty Manager. As Duty Manager, he would have been providing support to the many different areas of the venue, supervising staff and overseeing the daily operations of Waxy's for that shift. Mr. Groat had jumped behind the bar to assist another staff member rostered to work the bar.
  36. [105]
    Mr Groat rejected the proposition that it was male-oriented, and all had more male than female customers. Mr Burnett, the Director swore, and I accept, that the culture of this venue was that it was family-oriented. Its social media was not created by the venue itself, but by its marketing team, so if the marketing reflected something else that was why. The venue promoted the sale of cocktails, basic spirits and beer. It had a lot of tourists who were customers and they catered for a lot of sporting events that had mixed customers. He said that if a man questioned a happy hour price, he would provide an explanation just as he would if a woman asked the same question. I accept his evidence in that regard.
  37. [106]
    When it was suggested that after the Applicant ordered a water, he got annoyed and said that the drinks weren't hers to drink he responded by saying that although he did not recall the incident, he swore and I accept that that is not how he conducts himself. Nor would he conduct himself in that way, if there was a significant line of customers waiting to be served. As far as he was concerned, his experiences that women's orders are the same as men’s orders and they are no more complicated. As for request for water, they would not refuse it What is more the venue encourages water consumption and there was a water station available at the bar at which customers could get water. The drinking of water was encouraged.
  38. [107]
    The Applicant sought to rely upon photographs that she took on the night in question and which she suggested showed the outside of the venue and demonstrated some male dominance or masculine culture. She made that assertion in numerous places in her accounts of the event of that night. It is impossible to arrive at that conclusion by reference to those photographs or for that matter screenshots, she took from social media posts used to promote the venue.
  39. [108]
    There is no record of the gender breakup of customers that night, but the daily sales record for the period from six thirty till seven pm on that evening shows that forty-one customers were served. The record does not apparently indicate the number of drinks sold or required to be to customers in that period. Mr Groat swore that serving 41 customers in 30 minutes is not particularly busy. He said would not have been agitated because of that crowd number.
  40. [109]
    Mr Groat swore and I accept that it was of no concern to him that the happy hour was ending because the till is automated and it reverts back to the full price on the hour. He did not need to focus on that issue. As far as he was aware, if customers lined up for twenty minutes and had not been served and therefore missed out on happy hour prices, that was just too bad.
  41. [110]
    Mr Groat swore as to the existence of policies at the venue that dealt with disorderly conduct and other conduct which fell well short of disorderly conduct.
  42. [111]
    Mr Burnett swore, and I accept, that the Licensee was required to comply with the conditions of our liquor licence, the Commissioner for Liquor and Gaming's liquor guidelines and with the detailed legislative requirements of the liquor and gaming laws applying to the venue, including those outlined in the Act and Liquor Regulation 2002 ('the Regulation'). Such requirements include ensuring staff have completed responsible service of alcohol training and that they maintain a current RSA certificate whilst in our employ and that our approved managers hold a current responsible management of licensed venues certificate. He swore that importantly, as Licensee, he was obligated to maintain a safe environment for patrons and staff, to ensure liquor is served, supplied and promoted in a way that is compatible with minimising harm to anyone and to preserve the amenity of the area in which the venue is located as well as his primary duty of care under the Work Health and Safety Act 2011 (Qld) to ensure, so far as is reasonably practicable, the health and safety of staff. He said he had no qualms about the zero-tolerance policy they adopted for anyone or anything that may compromise the safety and wellbeing of staff and other patrons. These commitments were underscored by Waxy's risk-assessed management plan as approved by the Commissioner for Liquor and Gaming pursuant to section 38A of the Regulation.
  43. [112]
    Waxy's risk-assessed management plan (entitled the Risk assessment plan for the venue expressly provided as follows;

8. Staff are trained to be proactive and monitor patron behaviour at all times. If staff believe that a patron is showing signs of intoxication then the patron will be refused any further alcohol and offered water. The Hotel will enforce the principles of the responsible service of alcohol. When there is an incident at the Hotel involving the consumption of liquor, staff must notify management and provide full details of the incident.

9. Dealing with unduly intoxicated and disorderly patrons on the premises

Staff will be proactive and monitor patron behaviour at all times. If staff believe that a patron is showing signs of intoxication or is being disorderly, then the patron will be refused any further alcohol and offered water. If the patron continues to act in a disorderly manner or fails to comply with requests from staff, then the patron will be asked to leave the Hotel if necessary, and as then appropriate, security (if engaged) or staff will escort the patron from the Tavern. Any incidents involving intoxicated or disorderly patrons being removed from the Hotel are to be reported to management.

  1. [113]
    Mr Burnett swore, and I accept, that staff also receive training in House Policies, including our policies which speak to anti- discrimination, prohibition against sexual harassment in connection with work, health and safety practices. As such, staff were expected to demonstrate their commitment to excellent customer service by welcoming all visitors to the venue and providing them with the highest level of service that Waxy's is known for. Staff were expected to actively monitor all patrons and, in the case of a disorderly patron, to take immediate action and require that person to leave the premises without delay.
  2. [114]
    Mr Burnett swore, and I accept, that he was acutely conscious of the maximum penalty under the Act for the supply of liquor to a disorderly patron, or for allowing liquor to be consumed by a disorderly person and the business did not allow any discretion in this regard. His evidence, and which I accept, was that the only patrons who are treated differently in any of his establishments are those patrons who are unduly intoxicated or disorderly, where statutory obligations arise to immediately remove them from the premises.
  3. [115]
    Mr Groat swore, and I accept, that for him to react to what he called disorderly conduct did not require individuals to be intoxicated. They were trained to have a zero tolerance for customers arguing with managers or staff because it disrupts the ambience of the venue. He gave as an example, customers who constantly asked the same question over and over. Other such conduct that might have led to eviction included violence, swearing or profanity. He accepted that asking questions about the happy hour price would not be regarded as disorderly conduct.
  4. [116]
    As far as Mr Groat’s personality is concerned, he swore, and I accept, that he was an approachable and pleasant person and that he would not have discriminated against anyone on the basis of their sex. He said would not have her evicted because she questioned the price or because she ordered the particular drinks that she did and said they must have had some kind of disagreement.
  5. [117]
    Mr Groat swore, and I accept, that because of the zero tolerance for argumentative conduct, this would be likely to result in eviction. Consistent questioning was seen to be problematic because these kinds of customers were perceived to be likely to cause problems later in the night. If he found himself arguing with a person and it could not be resolved, he would have them removed he said. This he contended was what must have happened that night with the applicant.
  6. [118]
    When it was put to him that females tend to ask more questions during the placing of drink orders, he said he disagreed and said that these days everyone asks questions. He is asked questions, for example, about the wine selection all the time without incident.
  7. [119]
    It seems to me to be likely that the Applicant did in some way engage in what Mr Groat perceived to be an argument with him. It seems to me to be inherently likely that she was frustrated and irritated by having been refused so long and then to have to deal with a staff member who seemed to be ignorant of when the happy hour ended and what prices should be charged for the drinks she was ordering. She was also probably annoyed and irritated that she had had to pay more for her drinks than she expected, particularly when her spending for that night was carefully planned.
  8. [120]
    Although she may not have thought much of it at the time, he was likely to react in a way that she would not have expected to such behaviour. That is not to say that the applicant engaged in conduct that should have led to her eviction, and it seems to be that whatever she did must have been only marginally confronting or disagreeable, but she did not know about the no tolerance policy.
  9. [121]
    In my view, her description of what she observed that evening, including that it was a masculine environment, is factually inaccurate and probably arose out of her desire to understand the events of that night and some degree of reconstruction.
  10. [122]
    In fact, her perception of what was occurring behind the bar and how she was being treated was largely in her own mind rather than anything which was objectively reflective of any discriminatory conduct toward her. I am satisfied that she was treated no differently and certainly no less favourably than any other customer who was seen to be being argumentative with the manager.
  11. [123]
    She may not have understood at the time, but she was being evicted because of the manager’s perception of the argumentative or disruptive way she was behaving, even if her behaviour was subjectively not particularly problematic or argumentative. I am not persuaded that it was on the basis of her sex or attributes of those of her sex.
  12. [124]
    The basis for the decision here was not the relevant attribute in the sense contemplated by section 10 of the Act. The claim therefore based upon direct discrimination must fail.

Indirect discrimination and reasonableness

  1. [125]
    Section 11 of the AD Act provides as follows:

11Meaning of indirect discrimination

  1. Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
  1. with which a person with an attribute does not or is not able to comply; and
  1. with which a higher proportion of people without the attribute comply or are able to comply; and
  1. that is not reasonable. 
  1. Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
  1. the consequences of failure to comply with the term; and
  1. the cost of alternative terms; and
  1. the financial circumstances of the person who imposes, or proposes to impose, the term.
  1. It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
  1. In this section—

term includes condition, requirement or practice, whether or not written.

Example 1—

An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2—

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.

  1. [126]
    As has been often recognised in this context, it is important that the term which it is alleged was imposed be formulated with some precision; Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165 at 185. That has certainly not occurred here. In written submissions, it was put that the indirect discrimination was in requiring the Applicant to comply with its policies on eviction of patrons, with which she was unable to comply due to her sex, being female
  2. [127]
    The focus is first on whether the discrimination is on the basis of an attribute that has happened if a person imposes, or proposes to impose, a term (a) with which a person with an attribute does not or is not able to comply; and (b) with which a higher proportion of people without the attribute comply or are able to comply.
  3. [128]
    The “term” or condition relied upon here by the Complainant was described in oral submissions as being that if a patron is requested to leave, they have to leave based on the venue policies and this is unreasonable because it assumes the person was being disorderly when she was not in fact disorderly. The applicant’s solicitor conceded that if in fact, she had been disorderly the direction to her to leave would not have been unreasonable. Sadly, no attempt was made to relate these propositions to the language of Section 11 of the AD Act to demonstrate how this all fell within the definition of indirect discrimination.
  4. [129]
    In fact, disorderly conduct was not the only conduct caught by the policy or practice. There was zero tolerance for customers arguing with managers or staff because it disrupted the ambience of the venue.
  5. [130]
    What exactly was meant by the proposition to be found in the written submissions for the applicant that she was required to comply with its policies on eviction of patrons, with which she was unable to comply due to her sex, being female, was and remains elusive.
  6. [131]
    The Risk Assessment Plan for the venue expressly provided that if staff believe that a patron is showing signs of intoxication then the patron will be refused any further alcohol and offered water. Pursuant to that plan staff were to be proactive and monitor patron behaviour at all times. If staff believe that a patron is being disorderly, then the patron will be refused any further alcohol and offered water and if the patron continues to act in a disorderly manner or fails to comply with requests from staff, then the patron will be asked to leave the Hotel if necessary, and as then appropriate, security (if engaged) or staff will escort the patron from the Tavern.
  7. [132]
    She was not required to comply with any policy. The hotel staff and the second respondent were required to comply with a policy, so to speak, which was to have no tolerance of disorderly disruptive or argumentative conduct by patrons. That required the staff to maintain a safe environment for patrons and staff, to ensure liquor is served, supplied and promoted in a way that is compatible with minimising harm to anyone and to preserve the amenity of the area in which the venue. The Licensee sought to discharge its primary duty of care under the Work Health and Safety Act 2011 (Qld) to ensure, so far as is reasonably practicable, the health and safety of staff. There was a zero-tolerance policy they adopted for anyone or anything that may compromise the safety and wellbeing of staff and other patrons.
  8. [133]
    How it is said that she could not comply with it is also not identified and nor is it the case that she could not comply with it. Not only was she capable of acting in a way that meant she was not exposed to the risk of eviction, but when she was asked to leave, she was able to do so. She was not unable to comply with the condition that arguably was imposed, namely that she not do anything that may compromise the safety and wellbeing of staff and other patrons due to her sex. There is nothing intrinsic to being a female that means that a person with the attribute of being female could not comply when a higher proportion of people without the attribute comply or are able to comply.
  9. [134]
    Had I decided otherwise, in my view, it was reasonable to require patrons to not engage in disorderly disruptive or argumentative conduct if that may compromise the safety and wellbeing of staff and other patrons.
  10. [135]
    The claim based on indirect discrimination also must fail.

Orders

  1. [136]
    For the reasons that I have given, the complaint is dismissed.
  2. [137]
    I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.

Footnotes

[1]Lord Scott and Lord Nicholls’ speeches in Shamoon v Chief Constable [2003] UKHL 11.

[2]See Purvis v State of New South Wales (2003) 217 CLR 92, [155]-[163]; Bindaree Beef Ply Ltd v Riley (2013) 85 NSWLR 350, [94] (Basten JA); Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, [23] (Kiefel J).

[3](1989-1990) 168 CLR 165, at 176-7.

Close

Editorial Notes

  • Published Case Name:

    Leah v A.N. Burnett Investments Pty Ltd & Ors

  • Shortened Case Name:

    Leah v A.N. Burnett Investments Pty Ltd & Ors

  • MNC:

    [2025] QCAT 123

  • Court:

    QCAT

  • Judge(s):

    Member Roney KC

  • Date:

    21 Mar 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
AB v Queensland Building Services Authority [2013] QCATA 187
2 citations
Jump To
Cite 1 - [2013] QCATA 187
Cite 2 - [2013] QCATA 187
Applicant SIL v Scheme Manager, Victim Assist Queensland, Department of Justice and Attorney-General [2021] QCAT 237
1 citation
Jump To
Cite 1 - [2021] QCAT 237
Australian Iron and Steel Pty Ltd v Banovic (1989-1990) 168 CLR 165
1 citation
Jump To
Cite 1 - (1989-1990) 168 CLR 165
Bindaree Beef Ply Ltd v Riley (2013) 85 NSWLR 350
2 citations
Jump To
Cite 1 - (2013) 85 NSWLR 350
Cite 2 - (2013) 85 NSWLR 350
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Buderim Ginger Ltd v Booth[2003] 1 Qd R 147; [2002] QCA 177
2 citations
Jump To
Cite 1 - [2002] QCA 177
Cite 2 - [2002] QCA 177
Creek v Cairns Post Pty Ltd (2001) 112 FCR 352
2 citations
Jump To
Cite 1 - (2001) 112 FCR 352
Cite 2 - (2001) 112 FCR 352
Department of Health v Arumugam [1988] VR 319
1 citation
Jump To
Cite 1 - [1988] VR 319
Director-General of Education v Breen (1982) 2 IR 93
1 citation
Jump To
Cite 1 - (1982) 2 IR 93
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd [1993] FCA 796
2 citations
Jump To
Cite 1 - [1993] FCA 796
Cite 2 - [1993] FCA 796
IW v City of Perth (1997) 191 CLR 1
1 citation
Jump To
Cite 1 - (1997) 191 CLR 1
Leigh v Bruder Expedition Pty Ltd(2020) 6 QR 475; [2020] QCA 246
2 citations
Jump To
Cite 1 - [2020] QCA 246
Cite 2 - [2020] QCA 246
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
3 citations
Jump To
Cite 1 - (2003) 217 CLR 92
Cite 2 - (2003) 217 CLR 92
Cite 3 - (2003) 217 CLR 92
Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62
1 citation
Jump To
Cite 1 - [2003] HCA 62
R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155
3 citations
Jump To
Cite 1 - [1989] AC 1155
Cite 2 - [1989] AC 1155
Cite 3 - [1989] AC 1155
Shamoon v Chief Constable of the RUC [2003] UKHL 11
1 citation
Jump To
Cite 1 - [2003] UKHL 11
Stewart v State of Queensland (Queensland Health) [2024] QIRC 103
2 citations
Jump To
Cite 1 - [2024] QIRC 103
Cite 2 - [2024] QIRC 103
Toodayan v Anti-Discrimination Commissioner [2018] QCA 349
2 citations
Jump To
Cite 1 - [2018] QCA 349
Cite 2 - [2018] QCA 349
Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61
1 citation
Jump To
Cite 1 - [1984] 2 NSWLR 61
University of Ballarat v Bridges [1995] 2 VR 418
2 citations
Jump To
Cite 1 - [1995] 2 VR 418
Cite 2 - [1995] 2 VR 418
Waters & Ors v Public Transport Corporation (1991) 103 ALR 513
2 citations
Jump To
Cite 1 - (1991) 103 ALR 513
Cite 2 - (1991) 103 ALR 513
Waters v Public Transport Corporation [1991] HCA 49
2 citations
Jump To
Cite 1 - [1991] HCA 49
Cite 2 - [1991] HCA 49
X v McHugh (Auditor-General for the State of Tasmania) (1994) EOC 92
2 citations
Jump To
Cite 1 - (1994) EOC 92
Cite 2 - (1994) EOC 92

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.