Rees, Neil --- "Duroux and Others v Peebles and Another (Anti-discrimination - provision of services- damages - ss. 7, 18, 19 and 113 Anti-Discrimination Act 1977 (N.S.W.))" [1983] AboriginalLawB 31; (1983) 1(9) Aboriginal Law Bulletin 7

• Duroux And Others V Peebles And Another
• Anti-Discrimination-Provision Of Services – Damages-Ss. 7, 18, 19 And 113 Anti-Discrimination Act 1977 (N.s.w.)

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Duroux and Others v Peebles and Another

Anti-discrimination - provision of services – damages - ss. 7, 18, 19 and 113 Anti-Discrimination Act 1977 (N.S.W.)

Duroux and Others v Peebles and Another

Equal Opportunity Tribunal at Lismore, N.S.W

(Ms. K. Loder, Mr. T. Williams, Ms. S. Tracey)

26 July 1983 (No. 4 of 1983)

Casenote by Neil Rees

The complainants, four Aboriginal women, lodged complaints with the Counsellor for Equal Opportunity that on 26 March 1982 they were refused service at the Hotel Gollan, Lismore because of their race. The respondents were the licensees of the hotel.

In the course of its decision the Tribunal discussed the relevant facts –

On 26th March, 1982 shortly before 9.00 p.m. on the evening in question, three white persons entered the hotel slightly ahead of the complainants and ordered seven drinks. One of these persons, Julie Carroll, gave evidence before the Tribunal. The person serving commenced fulfilling the order but when the complainants entered the hotel that person said to Julie Carroll "Are they with you?" and then said: "Sorry we don't serve Aboriginals" and the complainants and their three companions left.

Whilst there were discrepancies in the evidence of the four complainants and Julie Carroll in respect of some matters relating to that night, the Tribunal accepts they were refused service and that those words were spoken to them. The Tribunal accepts that the group of which the complainants formed part had arranged to have a night out to take the form of a "pub crawl". They had visited three hotels since about 7.00 - 7.30 p.m. before visiting the Gollan shortly before 9.00 p.m.

Each had consumed between three to six drinks and they were a laughing, jovial bunch as they approached the Gollan Hotel. The Tribunal does not accept that they were so jovial as to be unruly and offensive, as was put forward by Mr Peebles, and that this was the reason they were refused service. Had this been the case, the bar attendant would have refused service to the white persons forming part of the group in the first instance.

In any event, Mr Peebles in his remarks to the Tribunal, stated the incident complained of did occur, albeit in the absence of himself and Mrs Peebles; the person serving in the bar being his daughter.

It is noted that Section 53 of the Anti-Discrimination Act states:

"53. An act done in contravention of this Act by a person as the agent or employee of another person shall be deemed, for the purposes of this Act, to be done by his principal or employer as well as by him unless his principal or employer did not, either before or after the doing of the act, authorise him, either expressly or by implication, to do the act."

The decision of the Tribunal cannot be taken as enforcing upon publicans or indeed any other persons providing goods or services, or running establishments or vehicles, a necessity to serve or allow access to all persons.

It may well be that in order to run a "family hotel" a publican needs to be able to refuse service to what he considers to be an undesirable element e.g. by virtue of rough or rowdy behaviour. The law is breached if the publican equates Aboriginal persons with "undesirable". Each Aboriginal person presenting him or herself for service must be considered on their own merit. The publican is not entitled to assume that all Aboriginal persons behave in a rough and rowdy manner.

The Anti-Discrimination Act makes unlawful a refusal of service on the ground of a person's race. In this particular case, the Tribunal is satisfied the refusal of service did occur on the ground of race. The Tribunal is not satisfied that the hotel has any policy of racial discrimination, but that it did occur in the particular incident, and that is what the complainants must establish, and have established. The Tribunal therefore finds the complaint substantiated, and turns to the orders it will make pursuant to Section 113.

The complainants have sought an order for the payment of damages, and gave evidence that upon being refused service they felt upset and embarrassed; their night out was spoilt and they were heckled by other hotel patrons.

Their evidence as to the number of other patrons present varied from between four to over ten - not a great number taking into account the complainants group comprised seven. The group had been in good spirits up until the time of the incident, and the Tribunal cannot accept that the night out was entirely ruined, as the group visited two other hotels later that evening concluding about 11.00 p.m. The Tribunal therefore orders the respondents to pay to the complainants damages in the sum of $250.00 each.

The Tribunal further orders that payment to each of the complainants be effective within one month from today, otherwise it may be registered as a judgement debt.

Mr Brassil of the NSW Aboriginal Legal Service appeared for the complainants.