Tupou v Scruffy Murphy's Pty Ltd & Ors [2007] NSWADT 192

Tupou v Scruffy Murphy's Pty Ltd & Ors [2007] NSWADT 192

The Tribunal accepted the applicant's account, corroborated in relation to the first incident and preferred over the implausible evidence adduced by T & B Security in relation to the second incident, that he was twice refused entry while not intoxicated because he was an Islander/Samoan. That refusal was less favourable treatment in the provision of services and race was one reason for it. The Hotel did not prove that it had not authorised the conduct or that it took all reasonable steps to prevent contraventions; the race-based door policy was more likely than not operating at the relevant times or, alternatively, later conduct did not make out the s 53 defence. The security companies...

Jurisdiction
Australia
Judgment Date
23 August 2007
Procedural Posture
Race Discrimination Complaint Concerning Goods and Services Under the Anti Discrimination Act 1977 / Principal Matter; Decision After Hearing
Outcome
The complaint of discrimination on the ground of race was substantiated.
Legal Topics
['race Discrimination' 'goods and Services' 'refusal of Entry to Hotel' 'vicarious Liability and Agency' 'aiding Unlawful Discrimination' 'general Damages' 'aggravated Damages']
['anti Discrimination Law' 'equal Opportunity Law'] ['race Discrimination' 'goods and Services' 'refusal of Entry to Hotel' 'vicarious Liability and Agency' 'aiding Unlawful Discrimination' 'general Damages' 'aggravated Damages']

Case Brief

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Procedural Posture

Race Discrimination Complaint Concerning Goods and Services Under the Anti Discrimination Act 1977 / Principal Matter; Decision After Hearing

Legal Issues

  1. 1 ["Whether refusing entry to Scruffy Murphy's constituted refusal to provide a service under the Anti-Discrimination Act 1977." 'Whether the applicant was refused entry on two occasions and whether he was intoxicated.' 'Whether the applicant received less favourable treatment because of race.' "Whether Scruffy Murphy's Pty Ltd was liable for the conduct of security guards under s 53 of the Anti-Discrimination Act 1977." "Whether the second and third respondents aided the Hotel's unlawful discrimination under s 52 of the Anti-Discrimination Act 1977." 'What damages or other orders should be made under s 108(2) of the Anti-Discrimination Act 1977.']

Ratio Decidendi

The Tribunal accepted the applicant's account, corroborated in relation to the first incident and preferred over the implausible evidence adduced by T & B Security in relation to the second incident, that he was twice refused entry while not intoxicated because he was an Islander/Samoan. That refusal was less favourable treatment in the provision of services and race was one reason for it. The Hotel did not prove that it had not authorised the conduct or that it took all reasonable steps to prevent contraventions; the race-based door policy was more likely than not operating at the relevant times or, alternatively, later conduct did not make out the s 53 defence. The security companies...

Court Disposition

The complaint of discrimination on the ground of race was substantiated.

Orders

  • ['The complaint of discrimination on the ground of race is substantiated.' 'The First, Second and Third Respondents are to pay the Applicant within 21 days, the sum of $6000, for which they are jointly and severally liable.' "The Second Respondent is to pay the Applicant the sum of $2000, within 21 days for the...