FEDERAL COURT OF AUSTRALIA

Reurich v Club Jervis Bay Ltd [2018] FCA 1220

ORDERS

THE COURT DECLARES THAT:

1.    The respondent’s conduct on 26, 27 and 28 December 2014, 19 April 2015, 12 June 2015 and 10 July 2015 in refusing to allow the applicant to enter its premises or denying him access with his assistance animal, by imposing terms on which it would provide him with services because of his assistance animal and/or in depriving the applicant of his membership of the respondent was unlawful discrimination under ss 23, 24 and/or 27 of the Disability Discrimination Act 1992 (Cth) (Act).

2.    The respondent’s conduct on 26, 27 and 28 December 2014 and 12 June 2015, in not making reasonable adjustments in relation to the applicant’s assistance animal while at the respondent’s premises, was unlawful discrimination under s 23 and s 27 of the Act.

THE COURT ORDERS THAT:

3.    The respondent pay damages by way of compensation to the applicant for the pain and suffering he has experienced as a consequence of the respondent’s unlawful conduct in the sum of $16,000 plus interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) from 15 September 2015.

4.    On or before 7 September 2018 the parties are to file and serve submissions, not exceeding 5 pages in length, in relation to the costs of the proceeding and to indicate in the submissions whether that issue can be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Table of Contents

MARKOVIC J:

1.    introduction

1    The old saying goes that a dog is a man’s best friend but, as this case demonstrates, sometimes a dog can be more than that.

2    Peter George Reurich, the applicant, has a bearded Border Collie called Boofhead. For Mr Reurich, Boofhead is more than a pet. He is a constant companion who, as the evidence demonstrates, Mr Reurich depends on to assist him in coping with everyday life.

3    Mr Reurich lives in Jervis Bay on the south coast of New South Wales. This proceeding arose out of Mr Reurich’s membership at a local club, Club Jervis Bay Ltd (Club) and his interaction with the Club and some of its employees. Mr Reurich claims that the Club directly and/or indirectly discriminated against him on approximately 20 different occasions because of his disability without lawful justification in respect of access to the Club’s premises and/or the goods, services or facilities provided or made available by the Club in breach of the Disability Discrimination Act 1992 (Cth) (DD Act). The alleged unlawful discrimination took place between 19 December 2014 and 10 July 2015.

4    For the reasons that follow I have found that the Club unlawfully discriminated against Mr Reurich on eight occasions.

2.    mr reurich, boofhead and the club

2.1     Mr Reurich

5    Mr Reurich moved to Vincentia in Jervis Bay in 2013. He believes that he suffers from an adjustment and personality disorder which manifests itself in various ways, including interpersonal issues, anxiety, panic attacks and depression. He has received psychological treatment to help cope with these issues since January 2012.

6    Tamara Lee has been Mr Reurich’s psychologist since January 2012. She has a bachelor of psychology and over nine years’ experience practising as a psychologist. Ms Lee prepared two reports in relation to Mr Reurich’s psychological conditions and his use of an assistance dog for the purpose of this proceeding.

7    In her report dated 20 January 2017 (First Lee Report) Ms Lee noted that, since he had first starting seeing her, Mr Reurich had sporadically attended 45 appointments depending on stressors at the time. According to Ms Lee, Mr Reurich has a number of psychological conditions that have impaired his occupational and social functioning. He habitually seeks counselling for assistance with coping with situations that arise as a result of these impairments. In Ms Lee’s opinion, Mr Reurich demonstrates symptoms of social communication disorder, attention deficit/hyperactivity disorder and paranoid personality disorder which are conditions that often lead to interpersonal issues and subsequent symptoms of depression and anxiety.

8    In the First Lee Report Ms Lee makes the following observations about Boofhead’s effect on Mr Reurich’s social interactions:

… Peter had advised that he felt more comfortable socially when he had his dog with him and from my interactions with Peter, the presence of his dog certainly seemed to soften his demeanour and reduce his outward anxiety symptoms. Because he was more aware of his dog's mental wellbeing than other people's state of minds, the presence of his dog also seemed to help Peter regulate his emotions better. 2 years on, I've found Peter's Service Dog to have both positive and negative effects. On the one hand, when people are respectful of the legitimacy of a Service Dog, Peter has found he is able to last longer in employment and to have positive social interactions out in the community. However, Peter seems to have great difficulty dealing with situations in which people are either not aware, or do not accept, the legitimacy of his Service Dog. These incidents seem to trigger Peter's paranoid thinking and his lack of appropriate social skills makes it challenging for him to address and resolve the situation. These communication and empathy skills are something that Peter and I continue to work on.

9    In cross-examination, Ms Lee elaborated on her statement that the “presence of his dog certainly seemed to soften [Mr Reurich’s] demeanour and reduce his outward anxiety symptoms”. Ms Lee thinks that when Boofhead is with Mr Reurich, he has slightly more self-awareness in that he cares about his dog, and if he is getting too loud, Boofhead starts to fret and Mr Reurich notices that. Thus when Mr Reurich has Boofhead with him he seems to be more self-aware and able to regulate his behaviour for example, in relation to the volume of his voice and his demeanour. Boofhead also serves as a way for Mr Reurich to connect with other people. Ms Lee has observed Mr Reurich out in public and has noticed that people come up to him, wanting to pat Boofhead and talk to him about Boofhead. This has led to positive social interactions which Mr Reurich otherwise lacks.

10    Ms Lee provided a second report dated 12 May 2017 (Second Lee Report) in which she was asked to comment on whether Mr Reurich “talking loudly, standing close, using swear words, being easily provoked [and] coming across as rude or aggressive” reflect symptoms of his mental health disorder. In that report Ms Lee said:

I would like to confirm that these are part of his Mental Health Condition and not, in my opinion, aimed at creating negative emotions in others. Peter's diagnosis of Social Communication Disorder is such because I do not have adequate developmental history to confirm a diagnosis of Autism Spectrum Disorder, which I strongly believe Peter has. This means that Peter has very limited insight into the impact that he has upon other people with regards to body language, tone of voice and maintenance of personal space. Peter becomes fixated on getting his point across and has limited capacity to accurately assess other people's responses to his demeanour. I have discussed with Peter on many occasions how the combination of his loud, projected voice and insistent speech patterns could create a feeling of intimidation in others and the need for greater personal space during the conversation. Peter has difficulty understanding this concept believing that if his intentions aren't hostile, then people shouldn't perceive them to be. This is a common deficit amongst clients with Social Communication Disorder and Autism Spectrum Disorder. In my opinion, Peter does not harbour violent or hostile intentions towards people, rather a fixation of having his point heard and having, what he feels to be, a judicious response. This is something I have tried to work with Peter on his therapy, with limited success.

11    Ms Lee elaborated on her observation that Mr Reurich has “a fixation of having his point heard and having, what he feels to be, a judicious response”. She explained that when Mr Reurich has an issue with someone, he will tend to continue addressing that issue for as long as he thinks he needs to do so. Ms Lee agreed that this characteristic could intimidate others. Ms Lee considered this to be a problem that Mr Reurich is likely to face fairly often in his day to day life and one that she has been trying to work on with him. Ms Lee also noted that, although Mr Reurich does not necessarily agree with her, he has a loud voice and, because of the way he presents, people need more personal space around him.

12    In a subsequent affidavit affirmed by Ms Lee, she provided a further explanation of statements that were made in the First Lee Report and the three mental health disorders of which Mr Reurich was said to display symptoms. She noted that Mr Reurich’s symptoms include difficulties with normal social communication; limited insight into the impact he has on other people with regards to the use of a loud, projected voice and insistent speech patterns; and suspicion, to the point of paranoia, about the intention of others. These symptoms lead him to experience intense feelings of anxiety and depression.

13    Ms Lee provided extracts from The Diagnostic and Statistical Manual of Mental Health Disorders (5th ed, American Psychiatric Association, 2013) (Mental Health Manual) which she said is used by psychologists in Australia to make mental health diagnoses. The extracts referred to the diagnostic criteria and symptoms for the three mental health disorders referred to in the First Lee Report, namely, social communication disorder, attention deficit/hyperactivity disorder and paranoid personality disorder, and the fourth mental health disorder referred to in the Second Lee Report, being autism spectrum disorder.

14    Ms Lee’s evidence was that Mr Reurich characteristically displays two of the diagnostic criteria for paranoid personality disorder according to the Mental Health Manual at p 649, which are:

    suspecting without sufficient basis that others are exploiting, harming or deceiving him; and

    reading hidden, demeaning or threatening meanings into benign remarks or events.

15    Ms Lee explained that, generally, when Mr Reurich has Boofhead with him he is more approachable. Without Boofhead Ms Lee thought that Mr Reurich, being a “big, loud person and … a larger male”, speaks rather loudly, stands quite close to people when he talks, without realising, and unintentionally is “quite confronting at times”. But with Boofhead present there is a different focal point for people. Boofhead allows people to have initial contact with Mr Reurich through him giving them time to understand that Mr Reurich does not intend to be hostile, he is just loud.

16    Ms Lee has only observed one negative aspect of Boofhead accompanying Mr Reurich which she did not foresee. That is, Ms Lee did not anticipate that Mr Reurich’s paranoid personality and general suspicion of people and their intentions has meant that, when people dispute the legitimacy of Boofhead, Mr Reurich will get quite angry and feel like he is being targeted. Negative reaction to Boofhead can thus be a trigger for Mr Reurich, an issue on which Ms Lee has been trying to work with him.

17    Ms Lee does not believe that Mr Reurich harbours violent or hostile intentions towards other people. But she agreed that many people do not know the difference between someone who does harbour violent or hostile intentions and someone like Mr Reurich.

18    Ms Lee agreed that Mr Reurich may possibly perceive negative interactions with people in a one sided way; will tend to see the other person as being at fault without recognising his own contribution to what might have happened; and, in the heat of the moment, might be unwilling or unable to agree when another person suggests that he may have broken a rule. However, Ms Lee said that in her sessions with Mr Reurich she assisted him in developing some insight into those situations. For example, when Mr Reurich brought in a video of his interactions where he was quite adamant that a person was being hostile towards him or was “out to get him”, Ms Lee was able to assist him to see things in a different way. Ms Lee observed that, on a few occasions, she saw Mr Reurich independently do that but, for the most part, he was quite stubborn in his belief that he was being targeted.

19    Ms Lee disagreed that Mr Reurich tends to exhibit an element of denial in his recollection of events and his role in them. In Ms Lee’s experience, while Mr Reurich lacks insight, he is incredibly honest about everything that has happened. As a result of his lack of insight, Mr Reurich often does not see a problem with what has happened and will not only not deny that things have happened, but actually produce video evidence, thinking there was no issue with what occurred. When Ms Lee would then explain her view of the recorded interaction, and that for example, he came across as intimidating or loud, Mr Reurich usually got upset, which Ms Lee concluded was indicative of Mr Reurich’s lack of awareness of the effect his behaviour had on others, not that he was denying what had occurred.

2.2    Boofhead

20    Boofhead, sometimes referred to as Boofy or Boof, has been with Mr Reurich since his birth in 2007.

21    Mr Reurich trained Boofhead over a number of years to “sit”, “stay”, obey other instructions and not eat food off the floor when it was dropped.

22    Boofhead bathes in the sea every two to four days in summer and every couple of weeks Mr Reurich gives him a bath with detergent. Boofhead attends the vet at least once a year and, as at January 2017, his vaccinations were up to date. Mr Reurich brushes Boofhead regularly and checks him for ticks and other things like grass seeds every day.

23    Mr Reurich feels that Boofhead offers him a freedom that he did not previously have, helps him with his disability and makes it easy for him to get out of the house. When he does not have Boofhead with him, Mr Reurich feels like he is missing something and becomes upset, starts to shake and often has to return home. According to Mr Reurich, if awful things are said to him about Boofhead, he becomes agitated and upset.

24    At the time of the incidents the subject of this proceeding Boofhead had what Mr Reurich agreed was “pretty long” hair. The photo of Boofhead from about that time which was in evidence depicted Boofhead as follows:

25    Psychiatric Service Dog Association (NSW) Incorporated trading as mindDog (mindDog) is a not for profit organisation that assists people to procure, train and accredit psychiatric assistance dogs. Catherine Phillips is the founder and chair of its board. A brochure issued by mindDog explains that a mindDog is “a psychiatric service dog providing essential support for someone with a mental health disorder”.

26    According to Ms Phillips, assistance dogs can be used by people with a range of different disabilities and can be trained to perform specific tasks to assist their handler. For example, for a diabetic, an assistance dog can be trained to alert for hypoglycaemic or hyperglycaemic attacks. For a person with an anxiety disorder the dog is not trained to undertake specific tasks. Rather, the handler needs to observe the dog’s body language in order to understand what the dog is telling them. Ms Phillips explained that because of the bond between the dog and its handler, the dog is aware of the handler’s physiology. If the handler is in a state of anxiety, Ms Phillips said that the dog will react to that and, for example, take the handler out of the situation causing them anxiety.

27    In late November 2014 Mr Reurich applied to mindDog to have Boofhead certified as a mindDog. The application form completed by Mr Reurich for certification of Boofhead was in three parts: part one was to be completed by the applicant applying for certification, Mr Reurich; part two was to be completed by the applicant’s medical practitioner; and part three was to be completed by someone who knew the applicant well but was not a member of his or her family.

28    In the application submitted by Mr Reurich for Boofhead, part two was completed by two practitioners: Dr Udit who described Mr Reurich as having “[a]nxiety, [a]djustment disorder” and who indicated that he expected a mindDog would help calm Mr Reurich down; and Ms Lee who described Mr Reurich’s condition as an “[a]djustment disorder with anxiety and depression” and a “[p]ersonality disorder not otherwise specified” and who indicated that she expected a mindDog would assist Mr Reurich because his “love for animals assists him in regulating his emotion”.

29    As part of the application, Mr Reurich completed home assessment forms, indicating that Boofhead had undertaken a home assessment test every fortnight over a six week period on 5 and 20 November and 3 December 2014. Ms Phillips explained that the home assessment program required applicants to answer “yes” or “no” to the same set of standard questions organised in two categories, “at home” and “out and about”, each fortnight for three consecutive fortnights. The questions in both categories aimed to uncover the relationship between the dog and its handler because the basis of psychiatric assistance dogs is the bond between the dog and its handler and how that develops. The home assessment also evaluated what the dog had been trained to do as this informed the relationship between the dog and its handler. The assessment was a standard form questionnaire that applied to all mindDog applicants and was not tailored to an applicant’s individual circumstances.

30    Upon receipt, Ms Phillips reviewed the application for Boofhead and deemed Mr Reurich and Boofhead to be suitable candidates. On 16 December 2014 she sent trainee material, a mindDog vest and an identity card to Mr Reurich. A copy of Boofhead’s licence, a brochure issued by mindDog and a photo of Boofhead in his trainee jacket appear below:

31    According to Mr Reurich, having Boofhead’s trainee licence and jacket would allow Boofhead to be trained to the standard required for the mindDog public access test. For example, armed with Boofhead’s trainee licence and jacket, Mr Reurich took Boofhead to the supermarket where he trained him not to look at meat displays and walk behind or next to him in the aisle.

32    On 27 October 2015, after the events the subject of this proceeding, Boofhead passed the mindDog public access test.

2.3    The Club

33    The Club is a licenced RSL club registered under the Registered Clubs Act 1976 (NSW). It is a not for profit entity with all profits redistributed for the benefit of members.

34    The Club’s mission as an RSL club is to provide for the wellbeing, care, compensation and commemoration of serving and ex-defence force members. The Club also provides a general service to the Jervis Bay community. It has various facilities for its members and guests, including a licenced restaurant, bistro, entertainment and gaming.

35    Mr Reurich joined the Club on 7 May 2013 and began to catch the courtesy bus to and from the Club. The Club provided Mr Reurich with a place to socialise and meet locals. As Mr Reurich was new to the area and single, he wanted to make friends and hoped to meet a girlfriend as well as able to dine there.

36    The incidents which form the basis of Mr Reurich’s alleged claims involved a number of the Club’s officers and employees. It is useful to introduce them here:

    James Rodney Simpson, who is known as Rod, was the Club’s president for 13 years until October 2016;

    Derek Ohlston has been the Club’s chief executive officer for approximately 31 years;

    Jean-Claude Mandavy, who is referred to as JC, has been a supervisor at the Club for 10 years;

    Jeffrey Brooks had dual roles as a supervisor and a security guard for eight years until December 2016. He was generally assigned to one of the two roles, though he usually worked as a security guard on Friday and Saturday nights and as a bar supervisor at other times;

    Murray Feeney was a supervisor at the Club for seven years until 21 December 2016;

    Rita Muscat has been the operations manager at the Club for approximately eight years. Prior to that she was the Club’s events manager for approximately two years and a supervisor for approximately three years. As operations manager Ms Muscat was responsible for ensuring that all patrons conformed to the Club’s rules and standards of behaviour for the safety and wellbeing of staff and guests in addition to ensuring that all patrons had a good experience when they came to the Club; and

    Malcolm Tripp is the Club’s courtesy bus driver. Mr Tripp recalled that he drove Mr Reurich about 20-30 times between 2014 and 2015. He recalled that, about two to three months after he first collected Mr Reurich from his house in Vincentia to take him to the Club, he was accompanied by Boofhead who was wearing a service dog vest which he later learnt was a mindDog vest.

The Club employees referred gave evidence that they observed Mr Reurich behaving in an aggressive and/or intimidating manner, for example, by invading their personal space, cutting them off when they spoke and speaking with a raised voice. Their observations of and attitudes toward Mr Reurich are apparent from the evidence of each alleged discriminatory incident described below.

2.4     Boofhead’s attendance at the Club

37    Before Boofhead got his trainee jacket and licence, Mr Reurich would sometimes bring him to the Club but leave him outside. If Mr Reurich went to the Club at night he left Boofhead at home. When Mr Reurich did not have Boofhead with him at the Club, after about 90 minutes, he would feel anxious, tense and suffer from anxiety, at which point he would want to go home to Boofhead immediately. Despite his love of seeing bands play at the Club, he would not stay because he would start to feel physically unwell, sweat and tremble until he saw Boofhead again.

38    After Boofhead got his licence and jacket he attended the Club with Mr Reurich. According to Mr Reurich, Boofhead was usually by his side and, when he was not, that was because Mr Reurich needed to go to the bar, the bathroom or because he was talking to someone nearby but within sight of Boofhead. On those occasions Mr Reurich put Boofhead in a “stay” position and lay his lead over a chair or loosely tied him to a chair. Sometimes Mr Reurich would ask someone to keep an eye on him. Mr Reurich said that he only left Boofhead alone for very short periods of time and that Boofhead would almost always stay in the same place, either sitting, lying down or standing up with his head turned looking towards Mr Reurich. Mr Reurich could only recall one occasion when Boofhead moved around the Club without him when Mr Reurich had gone to the bathroom, and unbeknown to Mr Reurich, Boofhead followed him.

2.5    Observations about the witnesses

39    In his evidence Mr Reurich sets out a number of interactions with Club employees which took place between 19 December 2014 and 10 July 2015. He claims that in that period there were about 20 instances of discrimination in breach of the DD Act. Those incidents are described below. What occurred at the time of many of the incidents was the subject of disputed facts. Where that is the case, I have set out the contested evidence and my view of whose evidence should be preferred and why that is so.

40    Before setting out the evidence it is useful to say something about my observations of the witnesses.

41    For the most part I found Mr Reurich to be a reliable witness. He had an ability to recall detail, including the minutiae of events. In part his detailed recollection of events was assisted by videos he had recorded on his phone which may have been a way of coping with the paranoia that, in Ms Lee’s opinion, is a manifestation of his condition. Mr Reurich said that the videos helped clarify what happened but, clearly, they also assisted Mr Reurich’s recollection of events.

42    The Club submitted that Mr Reurich was not a reliable witness because, although Mr Reurich thought he had a good memory, in cross-examination it was demonstrated that he did not. In cross-examination, Mr Reurich agreed that he “was not Houdini or Stephen Hawking”, conceded that he might have confused one or two days and accepted that he sometimes gets things wrong and his memory fails him. In my opinion, these criticisms largely demonstrate the effect of the passing of time on a witness’s memory. Mr Reurich accepted that he does not have the genius of others and that he may have confused dates but that does not make him an unreliable witness. What is clear is that Mr Reurich was able to recollect the chronology of events and his interactions with various people with sufficient clarity. That Mr Reurich recounted the events in a particular way which appears “one sided” as the Club suggested is unsurprising. First, Mr Reurich was clearly concerned by the events that occurred to the point where he felt he needed to make a complaint to the Australian Human Rights Commission (AHRC) and thereafter commence this proceeding. Secondly, it is not uncommon for a party to give what could be described as a “one sided” account of events. The same could be said of the recollection of some of the Club’s witnesses. Further, in this case, that characteristic is also, it seems, a manifestation of Mr Reurich’s disabilities.

43    Mr Reurich is not someone who is able to easily moderate his behaviour. I mean no disrespect to him when I say that he demonstrated no ability to self-edit when giving evidence in cross-examination and that he was both literal and expansive in answering questions so that his evidence often strayed well beyond the ambit of the question he was asked. Despite that, I did not find Mr Reurich to be argumentative. Rather, he did his best to put all of the evidence before the Court and, as I have already observed, I found him to be a mostly reliable and satisfactory witness.

44    Mr Flecknoe-Brown, counsel for the Club, submitted that the Club’s witnesses were practical, working people who are plain spoken and do not draw fine distinctions. My own observations accord with that submission. The Club’s witnesses answered questions directly but in some cases their animosity towards Mr Reurich was plain. That is perhaps a consequence of the events which have passed and because they find themselves at the centre of this dispute. I have addressed relevant aspects of the Club’s witnesses’ evidence below.

3.    alleged incidents of discrimination

3.1    19 December 2014 Incident

45    There are a number of different versions of the events which occurred on 19 December 2014. Accordingly, I have set out the relevant witnesses’ differing recollections in turn before concluding on the aspects of the evidence which I accept.

3.1.1    Mr Reurich’s recollection

46    On 19 December 2014, having received Boofhead’s mindDog vest in the post that day, Mr Reurich decided to go to the Club to see if it would accept Boofhead. According to Mr Reurich, Boofhead had not been in the ocean that day and did not smell.

47    Mr Reurich and Boofhead, wearing his yellow mindDog jacket, went to the Club at about 7.00 pm for the raffle. They were permitted to enter and Mr Reurich went to sit in the auditorium with Boofhead.

48    Ten minutes after Mr Reurich had taken his seat, he was approached by Mr Mandavy and they had an exchange to the following effect:

Mr Mandavy:    Get the dog out of here. He’s not a seeing eye dog is he?

[this statement was then repeated a few times]

Mr Reurich:    He’s a service dog and has a right by law to be here. He has the same rights as a seeing eye dog.

Mr Mandavy:    Get the dog out of here. I know the law. He is not a seeing eye dog.

Mr Reurich:    He’s a service dog.

Mr Mandavy:    I know the law. You have to get the dog out.

Mr Reurich showed Mr Mandavy the mindDog brochure and Boofhead’s mindDog trainee licence. He said that Mr Mandavy “snatched” the licence from him and took it away.

49    Mr Reurich felt bewildered and in shock and, shortly after he started to have a panic attack because he thought that Mr Mandavy was going to destroy the licence. Mr Reurich left Boofhead in the care of friends and went to look for Mr Mandavy. He recalls that, as he had sweat and tears running into his eyes, he could not see properly and walked into a glass sliding door, breaking his glasses and hurting his nose.

50    Mr Reurich eventually saw Mr Mandavy with Mr Brooks and another gentleman, who he thought was Mr Simpson. He approached them and asked Mr Mandavy to return Boofhead’s licence but, according to Mr Reurich, Mr Mandavy took the licence and held it up high with his arm raised vertically so that he could not reach it without stretching upwards, which he did, taking hold of the licence. Mr Reurich felt humiliated. I pause here to note that Mr Mandavy denied that he held the licence above his head or that he withheld Boofhead’s licence. Rather, he said that he took the licence with Mr Reurich’s consent so that he could make a copy of it and investigate mindDog.

51    Mr Reurich recalled then having a conversation with Mr Simpson to the following effect:

Mr Reurich:    You’re not a policeman, you have no right to take Boof’s licence off me.

Mr Simpson:    Are you a war veteran?

Mr Reurich:    No.

Mr Simpson:    You have to leave the club.

Mr Reurich showed Mr Simpson the mindDog brochure and Mr Simpson agreed to make some inquiries.

52    Mr Reurich returned to his friends and Boofhead. Shortly after Mr Reurich said that he was approached by Mr Brooks who told him to “come to the foyer right now”. Mr Reurich described Mr Brooks’ tone as rude and abrupt but nonetheless went to the foyer as requested. I pause here to note that Mr Brooks does not recall being present during the exchanges set out at [50] above nor does he recall telling Mr Reurich to go to the foyer.

53    The following exchange took place when Mr Reurich reached the foyer:

Mr Simpson:    Can we copy the dog’s licence and the brochure?

Mr Reurich:    Ok, but be quick. It was stolen off me once by JC. It was very unprofessional.

Mr Simpson:    JC was unsure so he took your licence to check.

Mr Reurich:    No, JC told me that he knew the law.

54    Mr Reurich recalled that he could see Messrs Mandavy, Brooks and Simpson standing around the photocopier talking to each other. He did not know why it was taking so long and felt anxious. He could hear murmuring. Mr Reurich did not want to wait in case Boofhead’s licence was withheld from him. He recalled that he had the following exchange:

Mr Reurich:    Is it going to take all day? Can I have my property back please, will this take all day?

Mr Mandavy (yelling):    If you swear one more time, you’re out!

Mr Reurich was shocked because he had not sworn. According to Mr Reurich, the exchange continued as follows:

Mr Reurich:        Mate, did I swear, did I?

Mr Mandavy (yelling):    Yes, I just heard you.

Mr Reurich:    I have turned on my camera, I want you to repeat that accusation.

Mr Mandavy:        No.

55    Mr Reurich said that he asked for Boofhead’s licence back but Mr Mandavy said that he did not want to help him anymore and Mr Simpson told him that it was illegal to film in the Club and that he should delete it. A short time later Mr Reurich recalled he had a conversation with Mr Simpson to the following effect:

Mr Simpson:    You don’t have to leave. You and the dog can stay.

Mr Reurich:    Can we still take the courtesy bus?

Mr Simpson:    Yes.

3.1.2    Mr Mandavy’s recollection

56    Mr Mandavy, on the other hand, recalled that the conversation he had with Mr Reurich was to the following effect:

Mr Mandavy:    Hi Peter, can I ask you for what purpose your dog is here. I can see that he is wearing a service dog vest.

Mr Reurich:    Boofhead is a mindDog and he is allowed to be here.

Mr Mandavy:    May I please see your licence for Boofhead just so that I can confirm that Boofhead can come into the Club with you. I will check with Rod because I have never heard of a mindDog.

Mr Reurich:    Here is the licence.

Mr Mandavy:    Thanks Peter, I am going to make a copy of the licence now and speak with Rod.

Mr Mandavy said that he then went to speak with Mr Simpson and they both went to the office to make a copy of Boofhead’s mindDog licence and google mindDog because neither he nor Mr Simpson had heard of it.

57    While he was in the office with Mr Simpson Mr Mandavy observed Mr Reurich pacing up and down outside. Mr Mandavy recalled that he and Mr Reurich had a conversation to the following effect:

Mr Reurich:    Give me my licence back right now, you are going to destroy it.

Mr Mandavy:    Peter, I am just making a copy as soon as I am done I promise I will give it back to you.

Mr Reurich:    You are discriminating against me.

Mr Mandavy:    Peter, please lower your voice and keep calm, here is the licence. Please do not speak to me in this rude manner, I will not tolerate it.

Mr Reurich:    F**k you.

Mr Mandavy:    Please leave the Club Peter, I will not have you swearing at me.

Mr Reurich:    I didn't swear at you.

Mr Mandavy:    I heard you Peter. Please don't swear at me. Please leave the club immediately! Now!

Mr Mandavy recalled that Mr Simpson then asked Mr Reurich to leave because he was creating a scene and his rude behaviour was unacceptable. Mr Reurich turned on the camera on his phone and Mr Mandavy walked away from him at that point.

3.1.3    Mr Simpson’s recollection

58    Mr Simpson’s recollection of what occurred again differs in a number of respects. He recalled approaching Mr Mandavy and Mr Reurich because he could hear from the tone and pitch of Mr Reurich’s voice that they were having a heated discussion about a licence for Mr Reurich’s dog. Mr Simpson recalled that upon approaching Mr Reurich they had a conversation to the following effect:

Mr Simpson:    Are you a war veteran?

Mr Reurich:    No.

Mr Simpson:    Can we please have a look and take a copy of your licence and the mindDog paperwork so that we can double check that mindDog is a legitimate organisation?

Mr Reurich:    Yes but don’t steal it.

Mr Simpson:    We are just going to make copies and check that it is all above board.

Mr Simpson specifically recalled asking Mr Reurich if he was a war veteran because he was aware that companion dogs, as well as other animals, were often used as therapy for war veterans who were suffering the effects of post-traumatic stress disorder.

59    Mr Simpson went to the office with Mr Mandavy to photocopy the mindDog licence. In cross-examination, Mr Simpson acknowledged that he had received Boofhead’s licence and the mindDog brochure; that those documents indicated to him that Mr Reurich needed a mindDog because of his medical condition; and that, upon receipt of that material, he would have been aware that Mr Reurich had some form of mental health disorder although he could not recall that Mr Reurich had ever said anything to him about his condition or the reason why he needed a mindDog.

60    While Mr Simpson was photocopying Boofhead’s mindDog licence, it became clear to him that Mr Reurich was becoming agitated. He saw Mr Reurich moving about erratically and staring at him and Mr Mandavy. Mr Simpson said that the following exchange took place:

Mr Reurich (yelling):    I want my licence back. I want my licence back right now. You are destroying it.

Mr Simpson:        We will give it back to you when we have finished copying.

Mr Reurich:        I want it back right now, you are discriminating against me.

61    Mr Simpson cannot recall any further specifics of the conversation other than that Mr Reurich was shouting and behaving in what he described as a “physically intimidating manner” because of the way he was standing and clenching his fists. Mr Simpson recalled that the exchange took place in the Club’s reception where patrons passed through as they entered the Club. Because of the disruption being caused, Mr Simpson asked Mr Reurich to leave the Club saying:

Please leave the Club now. You can’t speak to people like that. That is conduct unbecoming of a member.

Mr Simpson said that Mr Reurich then removed his phone from his pocket and started to film him and Mr Mandavy which caused him to say words to the following effect:

Peter, it is illegal to film here. Please delete that video. Please just take the bus and move on for today.

3.1.4    My conclusions on the evidence

62    While the recollections of what occurred on 19 December 2014 differ, it is clear that:

(1)    Mr Reurich attended the Club with Boofhead wearing his trainee mindDog vest for the first time;

(2)    Mr Mandavy approached Mr Reurich to inquire why Boofhead was at the Club and was shown a copy of Boofhead’s licence which he took away. I do not accept that in their first interaction when making initial inquiries, Mr Mandavy asked Mr Reurich to leave the Club. To the extent that Mr Reurich said that occurred, he is mistaken or confused;

(3)    Mr Reurich became agitated because he was concerned that he would not get Boodhead’s licence back and that Mr Mandavy may destroy it. There was an exchange between Mr Reurich and Mr Mandavy about the return of his licence during which time I accept it was withheld from Mr Reurich by Mr Mandavy who wanted to make further inquiries about it and show it to Mr Simpson;

(4)    Mr Simpson then became involved and he and Mr Mandavy went to the office to photocopy the licence and look at the mindDog paperwork they had been given. While they were there they observed Mr Reurich acting erratically. I infer that once again Mr Reurich was agitated and concerned about whether Boofhead’s licence would be returned;

(5)    Mr Reurich then started yelling for the return of his licence and possibly swore. Mr Simpson asked him to leave the Club because of the way he was behaving in the Club’s reception. Mr Simpson also asked Mr Reurich to stop filming the events when he starting using the camera on his phone; and

(6)    ultimately, Mr Reurich did not in fact have to leave the Club. He was permitted to stay and take the courtesy bus home.

3.2    21 December 2014 Incident

63    On 21 December 2014 Mr Reurich and Boofhead were on the courtesy bus returning home from the Club when, according to Mr Reurich, the following exchange occurred:

Mr Tripp:    Your dog makes me puke.

Mr Reurich:    How can you say my dog makes you puke when you smoke cigarettes?

Mr Reurich said that Mr Tripp then “hit the brakes” and in a loud and aggressive tone shouted that he should “get off the bus”. Mr Tripp started driving the bus in silence until they arrived at Mr Reurich’s house where Mr Reurich got off the bus with Boofhead.

64    Mr Tripp recalled Mr Reurich and Boofhead getting on the bus on 21 December 2014. He recalled that as soon as Boofhead started climbing the stairs of the bus he smelt a “strong, foul odour”. He said that the conversation he had with Mr Reurich at the time was to the following effect:

Mr Tripp:    Peter you cannot get on the bus when the dog smells like that. You have been told that the dog is unhygienic and has to be maintained to the appropriate standard.

Mr Reurich:    How can you say my dog smells when you smoke cigarettes. You smell of cigarettes.

65    Mr Tripp felt personally insulted by Mr Reurich’s remark, particularly because, according to Mr Tripp, he was simply doing what he was told by a member of the board (whose identity he can no longer recall). That board member had told him that Boofhead could not get on the bus when he was dirty, smelly and unhygienic.

66    Mr Reurich said that, between 19 and 21 December 2014, he and Boofhead went to the Club unhindered once or twice.

67    The evidence established that on 19 December 2014, two days before the second incident, there was a discussion about Boofhead’s status as a mindDog and whether he was in fact permitted to enter the Club as a mindDog but there was no discussion about his appearance, no allegation by any officer or employee of the Club that he smelt, nor any evidence of any directive given to Mr Reurich that Boofhead had to meet particular hygiene standards. Despite Mr Tripp’s insistence that he had been so informed, I do not accept that Mr Tripp had or could have been informed as at 21 December 2014 that Boofhead could not get on the bus when he was dirty, smelly or unhygienic. Accordingly, I do not accept Mr Tripp’s version of this conversation.

68    It is appropriate at this point for me to comment on my impression of Mr Tripp as a witness. I generally found him to be an unsatisfactory witness. Mr Tripp gave me the impression that he simply does not like Mr Reurich. That is no doubt a result of the interactions between them. But that break down in their relationship affected the reliability of Mr Tripp's evidence and in some cases, such as this incident, I have not been able to accept his evidence.

3.3    Ms Muscat makes inquiries

69    On 22 December 2014 Ms Muscat telephoned Ms Phillips at mindDog and Penny from the AHRC. The purpose of these calls was to clarify the legal position in relation to permitting Boofhead into the Club in circumstances where there were concerns that Boofhead may present hygiene and health issues because, according to Ms Muscat, he was dirty, smelly and had matted fur. Ms Muscat said that in her conversations with both Ms Phillips and Penny, she asked if the Club could lawfully refuse entry to a companion animal that is not well groomed and maintained as the Club had previously asked Mr Reurich to leave the Club when Boofhead was scruffy, unkempt and smelt. Ms Muscat said that both Ms Phillips and Penny confirmed that the dog would need to meet hygiene and behaviour standards and that entry could be refused if he did not. Ms Muscat made a note of her discussions in the supervisors’ diary in the following terms:

All Supers – Re: Peter Reurich

I spoke with Catherine Phillips from "Mind Dogs" Re: Peter Reurich.

The dog needs to be well groomed & maintained. If he is scruffy, unkempt & smells we have the right to refuse entry.

Ta

Rita

Also spoke to Australian Human Rights Commission (Penny)

Dog needs to meet the hygiene & behaviour standards.

70    Despite what Ms Muscat told Ms Phillips and Penny, the evidence establishes that as at 22 December 2014, Mr Reurich had not been asked to leave the Club because Boofhead was scruffy, unkempt and smelt. It is not clear why Ms Muscat informed Ms Phillips and Penny that Mr Reurich was asked to leave the Club because Boofhead was “scruffy, unkempt and smells”. To the extent Ms Muscat said she informed Ms Phillips and Penny that was the case, she was clearly mistaken and I do not accept that aspect of her evidence.

3.4    26 December 2014 Incidents

71    According to Mr Brooks, on or about 26 December 2014 at around 11.00 am Mr Reurich entered the Club with Boofhead. Mr Brooks approached Mr Reurich and they had a conversation to the following effect:

Mr Brooks:    Your dog does not meet the basic health and hygiene standards of the Club because he has a pungent smell, his coat is all matted and he is visibly dirty. Please remove your dog from the Club.

Mr Reurich:    My dog doesn’t smell. You smell like cigarettes, how can you say my dog smells when you smell like cigarettes. You are a bully and you stink worse than the dog.

Mr Brooks:    You cannot have a dog in here in that state. I will go and show you the paper work that says your dog has to be maintained and hygienic.

Mr Brooks prepared two contemporaneous notes of his interaction with Mr Reurich and completed an incident log dated 26 December 2014. In one of his reports he recorded that:

Boofhead emanated a pungent smell, his coat was all matted and visibly dirty, he was also not walking very well as he is an old dog. I also noticed that his nails were not clipped causing him to limp.

72    There was some confusion on Mr Reurich’s part as to whether the exchange with Mr Brooks referred to in the preceding paragraph occurred on 26 or 27 December 2014 but in cross-examination Mr Reurich agreed that he had attended the Club on the morning of 26 December 2014 with Boofhead and that he had a conversation to the effect set out above.

73    I accept that Mr Reurich attended the club with Boofhead on the morning of 26 December 2014 and accept Mr Brooks’ evidence about the interaction he had with Mr Reurich.

74    Later that day Mr Reurich wanted to return to the Club. Mr Reurich rang Mr Tripp and had the following conversation, which he recorded and which was the subject of an agreed transcript tendered in evidence (Agreed Transcript):

Mr Reurich:    Husky RSL bus.

Mr Tripp:    RSL bus, hello?

Mr Reurich:    Hello, it’s Peter here. Who am I speaking to?

Mr Tripp:    Mal.

Mr Reurich:    Malcolm, it’s Peter. Can you pick me up from my place at XX XX Drive please?

Mr Tripp:    Mate, you haven’t got your dog with you? Because I can’t have it on the bus.

Mr Reurich:    Why not?

Mr Tripp:    I can’t have it on the bus.

Mr Reurich:    Who told you that?

Mr Tripp:    Hey?

Mr Reurich:    Why have they not allowed him on the bus? What’s the reason?

Mr Tripp:    No mate I can’t have it on the bus.

Mr Reurich:    Who told you?

Mr Tripp:    Management.

Mr Reurich:    Who’s management?

Mr Tripp:    Management of the bus.

Mr Reurich:    Okay,well I’ll come anyhow, without the dog, but they are wrong because it’s illegal what they are doing by the way. Do you know that?

75    Mr Reurich agreed to go to the Club on his own. However, he did not stay long and took the very next courtesy bus home because he missed Boofhead and felt anxious and unwell.

3.5    27 December 2014 Incidents

76    On or about 27 December 2014 at approximately 11.00 am Mr Reurich went to the Club with Boofhead. According to Mr Brooks, Mr Reurich was wearing dirty work clothes and a hard hat and Boofhead smelt, was dirty and had matted fur. The Club had dress regulations and dirty workwear and any form of headwear was not permitted.

77    Mr Reurich and Mr Brooks’ recollections of the conversation that followed differs. Mr Brooks recalled that the conversation was to the following effect:

Mr Brooks:    You can't come in here wearing those clothes and with a work hat. I am going to have to ask you to leave, you know the dress code Peter. Also, your dog is still dirty and smelly.

Mr Reurich:     There is nothing wrong with my dog. I am just coming in here to enjoy myself. My clothes are not dirty, I have just come from work. You are bullying me and discriminating against me.

Mr Brooks:    I am treating you in the manner as I would treat any other patron who would present to the Club in breach of the dress code. Please leave.

78    Mr Reurich recalled that he had a conversation with Mr Brooks to the following effect:

Mr Brooks:    You can’t bring your dog inside. He smells.

Mr Reurich:    What?

Mr Brooks:    You can’t bring your dog in, he smells. And his jacket says he is a trainee. He’s not trained. He’s not a service dog. Take him outside. We have a right to refuse service dogs if they are unkempt.

79    According to Mr Reurich, Mr Brooks then showed Mr Reurich the handwritten extract from the supervisors’ diary set out at [69] above.

80    Both Mr Reurich and Mr Brooks agreed that the conversation continued to the following effect:

Mr Reurich:    How can you say that my dog stinks when you smoke cigarettes?

Mr Brooks:    Take the dog out of here, or I will bar you!

Mr Reurich:    This is not alright, this is disability discrimination.

Mr Brooks:    Take the dog out!

Mr Reurich:    Okay, Boof and I are going, but you’re acting unlawfully. This is discrimination.

81    As Mr Reurich and Boofhead were leaving Mr Brooks said “I’ll call the police” to which Mr Reurich replied “go ahead”.

82    After lunch Mr Reurich returned to the Club with Boofhead. As they were trying to enter, they were approached by Mr Brooks. They had the following conversation which Mr Reurich recorded and which was in the Agreed Transcript:

Mr Reurich:    Can you …

Mr Brooks:    Peter.

Mr Reurich:    He doesn’t stink anymore. He didn’t stink then.

Mr Brooks:    You cannot bring your dog in here.

Mr Reurich:    Well you told me the reason was that because …

Mr Brooks:    You cannot bring your dog in here.

Mr Reurich:    Can you give it to me in writing please? Thank you.

Mr Brooks:    I’m telling you now, take your dog out.

Mr Reurich:    Can you give it to me in writing please?

Mr Brooks:    Take your dog out.

Mr Reurich:    Can you give it to me in writing then?

Mr Brooks;    Take your dog out.

Mr Reurich:    Will you give it to me in writing then?

Mr Brooks:    I won’t give it to you in writing now.

Mr Reurich:    Okay, well.

Mr Brooks:    Take your dog out.

Mr Reurich:    When will you give it to me in writing?

Mr Brooks:    Talk to the boss next week.

Mr Reurich:    Who’s the boss?

Mr Brooks:    Derek Ohlston

Mr Reurich:    Why can’t I speak to him now?

Mr Brooks:    Because he’s not here.

Mr Reurich:    Well, you know you’ve got your facts wrong.

Mr Brooks:    I’m not going to argue with you mate. Take your dog out or I’ll cite you and give you a month.

Mr Reurich:    You are going to give me a month are you?

Mr Brooks:    Yep.

Mr Reurich:    You might find yourself in court yet. Making threats like that.

Mr Brooks:    Take the dog out (inaudible).

Mr Reurich:    (inaudible) I’ve got a right to have him by law, by law.

Mr Brooks:    I’m not going to argue with you.

Mr Reurich:    I know well why …

Mr Brooks:    Take the dog out.

Mr Reurich:    You are arguing with me because by law he’s allowed …

Mr Brooks:    Take the dog out.

Mr Reurich:    Come here Boof. Come on mate ... Boofy come here [laughs]. You’re breaking the law by the way. You are breaking the law and you’re happy to break the law.

Mr Brooks:    We’ll see you in court. Off you go.

Mr Reurich:    Well, you will. Will you send the letter then please?

Mr Brooks:    Don’t bring him in again.

Mr Reurich:    Send me a letter.

83    Mr Reurich felt dejected and decided to leave.

84    Mr Brooks made a contemporaneous note of his dealings with Mr Reurich on 27 December 2014 which recorded (as written):

Peter Reurich entered the club again at approximately 11am with his dog Boofhead. I confronted him in the foyer this time he was wearing shorts and thongs and had a dirty work shirt and a hard hat on.

I told Mr Reurich he can not come into the club dressed like that and Boofhead has not had a bath and still smells and seems to be in the same condition as previously presented, with that Peter continued to abuse me and went out the front and tied his dog to the rail at the stairs where people could possibly trip on the lead. I went outside and told him to untie to dog and remove him from the premises. Mr Reurich then called me a 'Dickhead' and a 'Bully' and said he was going to sue me personally as well as the club.

3.6    28 December 2014 Incident

85    On 28 December 2014 Mr Reurich once again went to the Club with Boofhead and tried to enter. According to Mr Reurich, Mr Brooks stood in their way. They had the following conversation which was recorded by Mr Reurich and was in the Agreed Transcript:

Mr Reurich:    Are you going to let me in today or are you going to act unlawfully again?

Mr Brooks:    (inaudible)

Mr Reurich:    Because, I’ll tell you what, Cathy is writing a letter to you…

Mr Brooks:    Keep the dog out.

Mr Reurich:    … to let you know that’s unlawful what you’re doing

Mr Brooks:    Don't bring the dog in.

Mr Reurich:    So you're going to act unlawfully, you don't care?

Mr Brooks:    Don't bring the dog in, alright?

Mr Reurich:    Well, if you direct me to take the dog out, I will but you are acting unlawfully, do you know that? You’re aware?

Mr Brooks:     Take the dog out.

Mr Reurich:    Do you understand? Have you read the rules?

Mr Brooks:    Take the dog out.

Mr Reurich:    Come Boof. Come here. Sit down, sit. [outside the front door].

Mr Brooks:     (inaudible)

Mr Reurich:    Trying to humiliate me for.

Mr Brooks:    I’m not trying to humiliate you.

86    A short time later, Mr Reurich and Boofhead went back to the Club and had a further conversation with Mr Brooks at the entrance, which was again recorded by Mr Reurich and was in the Agreed Transcript:

Mr Reurich:     You bastards you’re breaking the laws and you know it. I’ve told you number of times. Cathy is actually going to send you a letter (inaudible).

Mr Brooks:     We’ve told you a number of times what the management's decision is.

Mr Reurich:     The management is wrong and they'll find out because they’re getting a letter from Cathy. She's told me.

Mr Brooks:    Write a letter to the board.

Mr Reurich:    Well, I’ll have to.

Mr Brooks:     In the meantime, this is the third day that I've told you the dog is not allowed in the club.

Mr Reurich:     Call the police. You’ve promised to call the police. Call the police.

Mr Brooks:    If you continue…

Mr Reurich:    Call the police if you have to. I have every right to take him here by law.

Mr Brooks:     Not by our law.

Mr Reurich:     You can't make a law up. This is a, this is a federal law.

Mr Brooks:     Mate, I'm not going to argue with you.

Mr Reurich:     Well you’re arguing with me because you can't…

Mr Brooks:     I'm not going to argue with you.

Mr Reurich:     Well you are arguing with me.

Mr Brooks:     Don't bring the dog here again. The next time you bring the dog in the front door, you're going to be suspended for a month and you won’t (unintelligible) right.

Mr Reurich:     No, I won't. I won’t, I won’t be suspended for a month and I won’t be going…

Mr Brooks:    Won’t you?

Mr Reurich:    No I won’t.

Mr Brooks:     How about I suspend you for a month now?

Mr Reurich:     Well, if you want to try that on, you can try it.

Mr Brooks:     Alright, listen to me will ya?

Mr Reurich:     Can you give it to me in writing? Look, I'm not arguing with you, I'm, I’m going to come back for the raffles this afternoon right.

Mr Brooks:     I'm suspending you now for a month so don't come back.

Mr Reurich:     You are? Are you going to be here after lunch?

Mr Brooks:     I will be here after lunch.

Mr Reurich:     Well, I’m coming here for raffles and I’ve got Boofhead here which I’m entitled to do…

Mr Brooks:    You’re suspended for a month.

Mr Reurich:     You have no right to do that.

Mr Brooks:     And you’ll get a letter from the board.

Mr Reurich:     I want to talk to your big boss. Is the big boss going to be here?

Mr Brooks:     You will talk to the big boss, don’t worry about that.

Mr Reurich:     Can I speak to the big boss now?

Mr Brooks:     He's not here on Sunday.

Mr Reurich:     Why not?

Mr Brooks:     Don't stand here arguing with me, you've got a month, now leave the club.

Mr Reurich:     You can't do that. Are you kidding me?

Mr Brooks:     Do you think?

Mr Reurich:     You're acting unlawfully. You're acting irresponsibly. You're acting unprofessionally.

Mr Brooks:     You've got a suspension mate, leave the club. You'll get a letter from the board. Don’t let him in. You’ll get a letter from the board.

Mr Reurich:     Nope, you’ll be going to court. I’ll tell you what, I'm going to have you up for defamation, discrimination, discrimination, defamation and you're bullying me

Mr Brooks:     Leave the club, leave the club. You're suspended for a month.

87    Mr Reurich went home with Boofhead and created a petition concerning Boofhead’s smell. That afternoon he returned to the vicinity of the Club with Boofhead. He did not go into the Club but tied Boofhead to a railing and asked people outside the Club if they would sign his petition agreeing that Boofhead did not smell.

88    Mr Mandavy approached Mr Reurich and they had the following exchange which was recorded by Mr Reurich and was in the Agreed Transcript:

… (inaudible)

Mr Reurich:    And they’ve been accusing me of swearing at them (inaudible). No problem, thank you … Jeff tells me that I am barred from the club. Do you agree with that? Because there is no way I could be barred because I’ve done nothing wrong.

Mr Mandavy:    Well, if Jeff barred you, that’s all there is (inaudible)…

Mr Brooks then approached Mr Reurich and the conversation, which was once again recorded by Mr Reurich and was in the Agreed Transcript, continued as follows:

Mr Brooks:    What’s this?

Mr Reurich:    It’s a petition.

Mr Brooks:    Right, 50 metres off the premises mate.

Mr Reurich:    Why is that? Why is that…

Mr Brooks:    Now or I will ring the police and you get a $550 fine.

Mr Reurich:    There won’t be no fine from me (inaudible).

Mr Brooks:     You don’t think?

Mr Reurich:    No.

Mr Brooks:    You've got two minutes.

Mr Reurich:    You want to screw it up?

Mr Brooks:    50 metres off the premises.

Mr Reurich:    You want to screw it up?

Mr Brooks:    50 metres off the premises.

Mr Reurich:    Why are you doing this for? Why are you doing this for?

Mr Brooks:    Now.

Mr Reurich:    What is your problem? I've done nothing here. I've done nothing wrong.

Mr Brooks:    Mate, you're a goose.

Mr Reurich:    I'm a goose?

Mr Brooks:    You're a goose.

Mr Reurich:    You've been talking to the same copper who (inaudible).

Mr Brooks:    Get off the premises or I'll the police and you'll get a $550 fine.

Mr Reurich:    Mate…

Mr Brooks:    You've been warned.

Mr Reurich:    I'm going off the premises…

Mr Brooks:    You've been warned, you’ve been warned.

Mr Reurich:    I'm going off the premises. I'm going off the premises, not because of what you said (inaudible).

Mr Reurich then left the area with Boofhead and in the days that followed continued to ask people to sign his petition.

89    Mr Brooks did not have a clear recollection of what occurred on 28 December 2014 but accepted, based on the recordings, that he had the conversations set out above. Mr Brooks accepted first, that he suspended Mr Reurich for one month because he thought that Mr Reurich had defied his order not to bring Boofhead into the Club in circumstances where he had been warned he would be suspended if he did so again; and secondly, that he did not suspend Mr Reurich because Boofhead smelt.

90    Mr Brooks relied on contemporaneous notes comprising two typed notes and a handwritten incident log report. The first typed note is described as Mr Brooks’ contemporaneous note of his dealings with Mr Reurich on 28 December 2014. The second typed note is a composite report of events which took place on 26, 27 and 28 December 2014. Mr Brooks’ first typed note recorded that:

Mr Reurich entered the club yet again on the 28th December at approximately 11am. His dog Boofhead was in the same condition as the previous 2 occasions, I again asked him to leave, Mr Reurich again abused me calling me a 'Dickhead' and 'Bully' and threatened me until such time as I became very short with him and demanded he leave the club premise, at that stage he left.

At approximately 2.30pm that afternoon he again came into the club, I again met him in the foyer, there seemed to be no change in the appearance or smell of Boofhead, as a matter of fact the dog looked as though he did not want to be there as Mr Reuirch was dragging Boofhead along by the lead.

I said to Mr Reurich I have had enough you are now suspended for 1 month. Mr Reurich then said "Fine, now I can sue you and this dirty little shithole of a club". Mr Reurich then went out of the club with a petition that he already had with him.

I witnessed Mr Reurich approach 3 patrons as they attempted to enter the club to sign his petition, they refused and when they came in they said to me "Who is that Dickhead?"

I then went out and said to Mr Reurich you need to leave the premises and not approach of 50 metres of club property as you are now a suspended person. I then witnessed him across the road trying to get people to sign his petition.

91    Part A of the incident log report recorded that the incident took place at 11.00 am in the reception and that Mr Brooks had informed Mr Reurich on 26 December 2014 that “he would be suspended for a month if he brought his dog back in”. Part B of the incident report recorded that:

Mr Reurich insists on bringing his dog into the Club despite being told on 3 occasions on 26, 27, 28/12-2014. When he came in with the dog on 27/12/14 I told him he had to leave and gave him appropriate documentation photocopys (sic) and that if he came back in with the dog I would suspend him for 1 month and he would have to front the board. The dog stinks and is scruffy and does not look in good condition. When he came in on 28/12/14 at 11am I told him to leave. He refused so I said you are suspended for 1 month. He came back in with the dog at app 14.30 - cont

I told him to leave so he stood outside the door with a petition trying to get people to sign it harassing them. I then went outside and told him to leave the premises 50 m from the carpark. Which after some more complaining he finally left apparently he is suing the Club and me personally.

3.7    Mr Reurich is suspended from the Club

92    After reviewing incident reports prepared by Mr Brooks in relation to Mr Reurich’s attendance at the Club between 26 and 28 December 2014, Mr Ohlston determined that Mr Reurich’s behaviour was unbecoming of a member of the Club and caused a letter dated 29 December 2014 to be sent to him. Mr Reurich received that letter on about 31 December 2014 after the incident described at [94]-[98] below which also occurred on 31 December 2014.

93    The letter relevantly said:

On Sunday 29th December, 2014 at approximately 11.00am it is alleged you entered the club with your dog. Supervisor Mr Jeff Brooks approached you and advised you are not allowed into the club with your dog. It is alleged you were informed on numerous occasions that your dog did not meet certain standards of the Disability ACT 1992 and that if you continued to enter the club with your dog you would be suspended for 1 month.

It is also alleged that when Mr Brooks asked you to leave the premises he provided you with documentation. As per the Disability Discrimination Act 1992 amended 2009 your dog "Does not meet standards of hygiene and behaviour that are appropriate for an animal in a public place'. It is further alleged that you attempted to enter the club again at approximately 2.30pm on Sunday 28th December, 2014 and when Mr Brooks asked you to leave the premises you refused and then began harassing Members and Guests entering the club requesting they sign a petition.

As a result of this incident you have been given one (1) month suspension for conduct unbecoming of a member. During this suspension period you are not permitted to enter the club premises or use club facilities.

We would like to advise that this report will be tabled before the Board at the next Board meeting on Wednesday, 28th January, 2015. The Board will then decide if you will be cited to appear before them to answer for your actions which is conduct unbecoming of a member of this club. You will be advised of their decision following that meeting. Until then you remain suspended from the club.

(original emphasis)

3.8    31 December 2014 Incident

94    On 31 December 2014, Mr Reurich went to the Club with Boofhead, having just returned from working in Sydney. Ms Muscat was informed by Mr Feeney that Mr Reurich was in the foyer with his dog and that he had been asked to leave but that he had requested to speak with a manager. Ms Muscat and Mr Feeney went to the foyer to meet Mr Reurich. Mr Reurich asked for a glass of water and Mr Feeney went to the bar to get it. The conversation between Ms Muscat and Mr Reurich, which was recorded by Mr Reurich and which was in the Agreed Transcript, was as follows:

Ms Muscat:     Hey Peter, how you doing?

Mr Reurich:     Rita, can I have a drink of water before we talk because I'm really dry. I've had a three hour trip.

Ms Muscat:     Yeah I’ll go, I’ll go and get you a glass from the bar.

Mr Reurich:    Can you do that for me?

Ms Muscat:    Yeah I’ll get you a glass from the bar.

Mr Reurich:     Can you do that for me?

Ms Muscat:    Yeah, we’ll go and get you a glass from the bar.

Mr Reurich:    Okay, well before I talk, I’m really dry.

Ms Muscat:    (inaudible)

Mr Reurich:    I feel the club’s dealt unfairly with me. And you're breaking the law because that was the law. I think, I think Cathy sent you a second letter this week, did she?

Ms Muscat:     No, I haven't received anything.

Mr Reurich:    Well she should have done.

Ms Muscat:    We have the right to refuse the dog entry.

Mr Reurich:    Why? Because it smells?

Ms Muscat:    (inaudible)

Mr Reurich:    Because, because he smells, are you telling me he smells?

Ms Muscat:    Yeah, no.

Mr Reurich:    Are you trying to provoke me?

Ms Muscat:    No, no.

Mr Reurich:     Mate, I've been to various people who tell me he doesn't stink. You’re trying to tell me that my dog smells?

Ms Muscat:     Settle down. I'm not yelling at you.

Mr Reurich:     I’m not yelling at you, I’m asking for a glass of water.

Ms Muscat:    Lower your voice.

Mr Reurich:    I’ve got laryngitis because I want a glass of water please.

Ms Muscat:     I’m going to get you a glass of water.

Mr Reurich:    Thank you.

Ms Muscat:     You've been given a letter from the board.

Mr Reurich:     I haven't got it yet. I haven't got home yet.

Ms Muscat:     We’ve posted it.

Mr Reurich:     Yeah.

Ms Muscat:    We posted it to you (inaudible).

Mr Reurich:     Yeah, mate I know and I’ll be taking you to court for that.

Ms Muscat:    (inaudible)

Mr Reurich:     Because you know what, you guys are out of line to do that. Youse are breaking the law.

Ms Muscat:     We're not breaking the law.

Mr Reurich:     You have actually.

Ms Muscat:    No we haven’t.

Mr Reurich:    You have, I believe so, you’ll find out. I find the whole thing bizarre. I’ve been here on Friday night, they carried on, Saturday night was fine, Sunday night was fine, the next Friday I come here you carry on again and claim my dog stinks, he doesn’t stink, that’s a load of crap. Like you just don’t like animals or something.

Ms Muscat:    No I love animals, I’ve got two.

Mr Reurich:    Well you’re not showing it.

Ms Muscat:    I have dogs of my own.

Mr Reurich:    Yeah well that’s okay, that’s alright. You’ll find yourselves in court, that’s it. Right, I’ve got hundreds of people, I’ve got signatures of people already. I was here for two minutes and I got four people sign the book. I got told to leave the premises.

Ms Muscat:    (inaudible)

Mr Reurich:    No I’m not harassing the patrons at all. I tell you what, I’ll be getting millions of signatures from all your patrons in here and they’re able to come in your club. They will very happily sign that my dog does not stink and you guys are behaving totally miserable. You’re breaking the law by what you’ve done.

Ms Muscat:    We’re not, we’re not breaking the law Peter, we’re not breaking the law.

Mr Reurich:    Well how can you prove my dog stinks?

Ms Muscat:    Because he does.

Mr Reurich:    (laughs)

Ms Muscat:    That’s the opinion of a lot of people that were in the club, and a lot of patrons and guests that were in the club on the days that you were allowed to have the dog in the club. You’ve left the dog …

Mr Reurich:    I don’t believe that, I know what this is all about, this is a bullying tactic.

Ms Muscat:    (inaudible)

Mr Reurich:    This is a bullying tactic of yours. It is.

Ms Muscat:    You have to (inaudible). We’ve had complaints from patrons and I have to take those complaints seriously (inaudible).

Mr Reurich:    Yeah.

Ms Muscat:    You obviously don’t want to (inaudible).

Mr Reurich:    Well I don’t get complaints anywhere else.

Ms Muscat:    You’re not allowed in anywhere else either.

Mr Reurich:    That’s not true at all.

Ms Muscat:    Where are you allowed in?

Mr Reurich:    I don’t have to tell you anything. I can go to the shopping centre, I can go anywhere I like.

Ms Muscat:    That’s fine.

Mr Reurich:    I’ve not been refused by any club I’ve been to. I’ve been to a number of clubs all over Sydney, all over everywhere and no one’s ever suggested he smells. They all, they all welcome him with a smile on their face, they don’t look miserable like you. You guys look miserable, you act miserable and you’ll be ending up in court looking more miserable.

Ms Muscat:    Well you take it further.

Mr Reurich:    Yeah I will take it further.

Ms Muscat:    (inaudible).

Mr Reurich:    Ah yeah.

95    Ms Muscat recalled that in addition to what is set out above, in the course of the conversation, Mr Reurich said words to the following effect:

I am not going to be subject to the board’s autocratic dictatorship at the round table of knowledge. They have no knowledge of anything to do with Boofhead. You are running a grubby little club and I am going to sue you for discrimination. No one here is fit to be in charge.

96    Ms Muscat recalled that while she was speaking with Mr Reurich she could smell Boofhead who, according to her, was emitting a foul odour. However, Ms Muscat did not inform Mr Reurich during the course of the conversation that she thought Boofhead smelt. She only told him that other people had complained about his smell. Ms Muscat accepted that none of those complaints was recorded in writing. Ms Muscat also recalled that Mr Reurich was yelling loudly at her in what she considered to be a rude and aggressive manner. As they were standing outside the Club other patrons were walking past and staring at what she described as an embarrassing scene, with Mr Reurich asking them “Can you smell my dog? Does it stink?”

97    On 31 December 2014 Ms Muscat prepared a diary note which, but for the last dot point which she added subsequently, recorded her discussion with Mr Reurich. The diary note does not refer to any complaints made by patrons about Boofhead’s smell nor does it refer to Boofhead in fact smelling.

98    On a date after 31 December 2014 Ms Muscat prepared a further report of her conversation with Mr Reurich. That report included:

The dog as I remember on the day looked un-kept & quite dirty. The dog is black and white however the dog was not white. The dog was dirty. As I approached Peter I could smell a stench of what can only be described as ‘wet dog’ coming from ‘boofhead’. Like stale sea water. The smell was quite pungent.

This was the first time that Ms Muscat recorded in writing that Boofhead smelt. Ms Muscat said that she prepared this report because she wanted to have something in writing about Boofhead’s smell.

3.9    Mr Reurich lodges a complaint with the AHRC

99    On about 2 January 2015 Mr Reurich lodged a complaint alleging disability discrimination against the Club with the AHRC (First AHRC Complaint).

3.10    Assessment of Boofhead

100    In January 2015 Mr Reurich contacted Ms Phillips at mindDog and informed her that he had been suspended from the Club because of Boofhead. Ms Phillips agreed that mindDog would assess Boofhead to ascertain if he was unhealthy or dirty.

101    On 9 January 2015 Ms Phillips and mindDog’s assessor, Gayl O'Grady, met with Mr Reurich and Boofhead. On that occasion Ms Phillips observed that Boofhead was in good condition, his coat was clean and he had no odour. Ms O’Grady, who assessed Boofhead, observed that he was clean, did not have an unpleasant odour, smelt of salt water, which was not an unpleasant smell, and had quite dry skin so she recommended some natural remedies. Ms O’Grady also observed that, like most mindDog clients, Mr Reurich was highly emotionally invested in the care and wellbeing of Boofhead and that Mr Reurich probably valued Boofhead’s wellbeing more highly than his own. She described Boofhead’s coat as shaggy and that it looked unkempt but was of the opinion that Border Collies have a naturally scruffy coat. Mr Reurich informed Ms O’Grady that Boofhead bathed in the sea at Jervis Bay on a regular basis and was also washed with detergent from time to time. In Ms O’Grady’s experience, dogs that were bathed in this way did not have an offensive odour.

102    At Mr Reurich’s request, Ms Phillips wrote a letter dated 24 January 2015 to the Club about mindDog and psychiatric assistance dogs in which she stated:

Peter has informed us that he has been denied access to Club Jervis Bay when a staff member named Rita claimed that his mindDog Boofhead was dirty and smelled.

Under the Commonwealth Disability Discrimination Act 1992 Part 9, it is illegal to refuse access to social and sporting clubs because an individual has an assistance dog. Boofhead is such a dog.

Under Section 54A of the Act, an assistance dog may be refused access on the grounds that it is unhealthy or dirty. On that one occasion it is possible (but unlikely) that Boofhead did have an odour.

However, Peter is well within his rights to bring a clean Boofhead into the club.

I and our Senior Assessor, Gayl O'Grady, met with Peter end Boofhead on Friday, January 9, 2015. Boofhead was in good condition, his coat was clean and had no odour.

To claim that a dog is dirty when it is not, in order to refuse access, is an infringement of the law.

If Club Jervis Bay continues to refuse access to Boofhead, then Peter may lay a formal complaint with the Human Rights Commission.

If you need more information about mindDogs please contact me on xxxx.xxx.xxx.

3.11    The period from 31 January 2015 to 2 February 2015

103    On 31 January 2015, Mr Reurich went to the Club with Boofhead. Mr Brooks informed Mr Reurich that he, but not Boofhead, could come in. Mr Reurich left feeling disappointed as, having waited until what he considered to be the end of the suspension period, he was looking forward to returning to the Club. He did not want to spend time there without Boofhead. Mr Brooks does not recall this conversation but I accept that Mr Reurich attended the Club on 31 January 2015, believing the suspension period had ended, and had a conversation with Mr Brooks as he recalled.

104    On 1 February 2015 Mr Reurich returned to the Club with Boofhead. On that occasion he had a conversation with Mr  Feeney to the following effect:

Mr Feeney:    Your dog can’t come in.

Mr Reurich:    He is a service animal, that is discrimination.

Mr Feeney:    He can’t come in. You’re liable to be barred again.

Mr Reurich:    On what basis?

Mr Feeney:    Because you are on the premises illegally with your petition. And also because of aggression.

Mr Feeney can vaguely recall having a conversation to this effect.

105    On 2 February 2015 Mr Reurich once again went to the Club. On that occasion he had a conversation with Mr Ohlston to the following effect:

Mr Reurich:     They barred me. And now they say they'll let me in but not the dog. By law, you know that I'm allowed to take my dog in.

Mr Ohlston:     Yes, if it meets certain criteria.

Mr Reurich:     What's the certain criteria?

Mr Ohlston:     Well, one is that it must be clean.

Mr Reurich:     Well are you saying he's dirty, still, now?

Mr Ohlston:     Well, doesn't look dirty to me.

Mr Reurich:     Well, he hasn't been any different from day one to how he is now.

Mr Ohlston:     There's other criteria too. He must never leave your side

Mr Reurich:     If I tell him to stay somewhere, he stays there. I go to the bar, or the toilet, and he stays there. He's not a problem. And I'm happy to do that.

Mr Ohlston:     Well, again, I've heard that you leave him in a room and go away.

Mr Reurich:     No, that's not true at all. I've left him sitting there when I go to the bar or the toilet, or get my money to get my raffle. There's nothing wrong with that.

Mr Ohlston:     There have been reports about your behaviour.

Mr Reurich:     My behaviour? How is my behaviour wrong when I'm asking them to accept the fact that they're breaking the law? Which they were.

Mr Ohlston:     I think it's the manner in which you go about it. You're abusing people.

Mr Reurich:     That's not true, I never shout at anybody ever. JC accused me of swearing. I definitely did not swear. He tried to use that to throw me out of the Club as well.

Mr Reurich pointed to the letter dated 24 January 2015 from mindDog which he said was near Mr Ohlston and the conversation, which was partially recorded and which was in the Agreed Transcript, continued as follows:

Mr Reurich:    I would eat nothing, he told me I had to spend money. That was years ago, forget that, this is now, I took the dog in, they let me in the door, everything’s good, I sat in there like I do now, he come up and accused me of him not being a seeing eye dog, and I said no he's not but he's service dog, he's entitled to be here.

    Gave him my card and he ran off with it. I didn't give it to him. I showed it to him, and he’s grabbed it and took off with it. When I asked for it back ten minutes later because I was scared he was going to cut it up, he held it away from me and wouldn't give it to me. I had to get it off him right. That's not good professional behaviour. Your president, I think, who's the president, that little bloke, who's that? Who's the president or was it you here that time?

Mr Ohlston:     Rod Simpson.

Mr Reurich:    Yeah, that same day, first question he asked me - am I a veteran as if that's got a difference to do, what difference does that make if I'm a veteran or not? Then they were looking for every excuse under the sun to stop him from being here. They couldn't find nothing. So the next three days I was allowed in, there was not a problem, he was well behaved. You can have a look at the tapes, alright.

Mr Ohlston:     Mm. Alright.

Mr Reurich:    So, is there a problem now or not?

Mr Ohlston:     There is, in so far as it's been before the board of directors and the board of directors have said…

Mr Reurich:    Have the board of directors got this letter from MindDog, well you've got the letter there, you've seen the letter haven't you? Have you read that?

Mr Ohlston:     Of course I have. When it goes before the board, then they can make a decision as far as the dog goes.

Mr Reurich:     But what I'm talking about, is you're talking about Club policy and I'm talking about federal law, as stated in there, can you not read? That says federal law.

Mr Ohlston:     Did you read the rest of the letter too then?

Mr Reurich:     Yes. And the letter says I should be allowed in the Club and this is what she's asking you to do, so have you read the rest of the letter?

Mr Ohlston:     Yes.

Mr Reurich:     So, in other words you're not going to let the dog in?

Mr Ohlston:     Not until, not until the board makes judgment on that letter.

Mr Reurich:     Okay but how come I heard, I went to the papers, right and you know that.

Mr Ohlston:     Mm hmm.

Mr Reurich:     And you talked to Adam.

Mr Ohlston:     Mm hmm.

Mr Reurich:     And you told Adam…

Mr Ohlston:     No, I didn't speak to Adam

Mr Reurich:     You didn't speak to Adam?

Mr Ohlston:     No.

Mr Reurich:     Well who spoke to Adam?

Mr Ohlston:     No, not me

Mr Reurich:     Somebody spoke to Adam and said if my dog was washed, he’d be allowed in the Club. Now this is after I was barred. Now, I'm only being barred, but what reason did he bar me, do you know what reason he barred me for, can you explain why he barred me?

Mr Ohlston:     Initially, from what I can gather and what reports I've seen, it was the state of your dog.

106    Mr Reurich recalled that the balance of the conversation, which was not recorded, was to the following effect:

Mr Reurich:     That's not why I got barred. That's why he wasn't allowed in. All your people smoke illegally. They smoke within 12 metres of the entrance of your door. They smoke, and they tell me my dog stinks!

Mr Ohlston:     Well, that's personal.

Mr Reurich:     I think it's a personal thing, what they've done to me. Don't you think?

Mr Ohlston:     No.

Mr Reurich:     They tell me that he's not allowed in because he's a trainee dog. But he's allowed to do everything as a trainee that a service dog can do. He's never messed up once, he's always behaved. Three days after he's been here, they came up and told me he's not allowed in. They were rude about it.

Mr Ohlston:    I'm not sure they were rude about it. I mean, that's your word against theirs.

Mr Reurich:     So they're not going to let me in.

Mr Ohlston:    Not until I get that letter from the Board.

Mr Reurich:     You're the boss of this club, correct?

Mr Ohlston:    I carry out what the Board tells me to do. At the moment the Board says the dog's not allowed in.

Mr Reurich:     What makes the Board all mighty? The law is the law. How can they override the law. Do you agree there is a law for this?

Mr Ohlston:    Yes, but I'm waiting for the Board.

107    Mr Ohlston agreed that he had a conversation with Mr Reurich to the effect set out in [105]-[106] above, but said that Mr Reurich had omitted the following part of their discussion:

Mr Ohlston:    I need you to understand Peter, that we do not mind having Boofhead in the Club as long as he is neat and clean and within your control. The bigger issue here Peter is that you cannot come in here and abuse people. We have to ensure that the Club is a safe place for all members and we have to ensure that the rules of membership outlined in the constitution are abided by.

Mr Reurich:     But I want to come in, my dog does not smell and is very hygienic. How can you say my dog smells when there are people here who smoke and smell of smoke, they are allowed in.

Mr Ohlston:    Peter until we have a board meeting to discuss this issue I can't give you any other answer. That's not personal. It's just protocol. Most things that happen at the Club need to be put before the board.

Mr Reurich:    Derek you are a liar.

108    Mr Ohlston recalled that on 2 February 2015 Boofhead looked as if he had been freshly washed. Hence, when Mr Reurich asked him whether Boofhead looked dirty, he replied that he did not. Mr Ohlston said that the point he was trying to make in his discussion with Mr Reurich, as recorded at [107] above, was that initially Boofhead was not allowed into the Club because of his dirty, smelly and unkempt state and related hygiene, health and safety concerns but, once Boofhead was clean and no longer posed health and safety issues, he could come into the Club. According to Mr Ohlston, it was Mr Reurich’s behaviour, being aggressive, abusive, intimidating and threatening, that was the cause of his suspension.

109    Soon after his exchange with Mr Ohlston, Mr Reurich left.

110    Mr Reurich again contacted Ms Phillips who agreed to write another letter to the Club. MindDog’s letter dated 3 February 2015 to the Club included the following:

Despite my letter of 20.01.15 to club management, Peter has again been told that he is not welcome at Club Jervis Bay when accompanied by his mindDog Boofhead.

As I initially pointed out, this is an infringement of the Commonwealth Disability Discrimination Act 1992.

You may wish to acquaint yourself with the case Sheehan v Tin Can Bay Country Club 2002.

In the beginning of this unnecessary drama, Peter was told that Boofhead was dirty and smelled. It is my understanding that at a meeting with Peter on 02.02.15, the manager of the club, Derek Olsen, admitted that Boofhead did not have an odour.

This admission would indicate that the original claim by club staff that Boofhead was dirty, was simply a ploy to refuse Peter access.

Mr Olsen also pointed out that before going to the bar or the lavatory, Peter would ask Boofhead to sit and stay. This is legitimate behaviour for an assistance dog. All mindDog clients have individual needs and ways of coping with their disorder. Peter and Boofhead have worked out a process that is effective for them.

Peter simply wants to enjoy the club's facilities with his mindDog. He has the legal right to do so and has asked me to proceed with a complaint against the club in the Human Rights Commission.

111    Mr Simpson took issue with Ms Phillips’ letter to the extent it suggested that Mr Reurich was refused access to the Club and discriminated against because of Boofhead. He said that Mr Reurich was asked to leave because of his abusive and threatening behaviour. While Mr Simpson accepted that he was not physically present between 26 December 2014 and 2 February 2015 to see Mr Reurich being denied access to the Club and he did not personally make the decision to suspend Mr Reurich from the Club in late December 2014 or in late January and early February 2015 not to permit him re-entry, he did not accept that he was incorrect when he said that Mr Reurich was asked to leave the Club because of his abusive and threatening behaviour.

3.12    Special board meeting of the Club

112    On 9 February 2015 at a special board meeting of the Club the letters dated 24 January 2015 and 3 February 2015 from mindDog were tabled and discussed by the board. Mr Simpson was present and Mr Ohlston was in attendance at the meeting. The minutes of the meeting record:

General Business:

1.    Letter received from Cath Phillips – President of MindDog

    RE: Peter Reurich M/Ship # 5629

Discussion was held regarding the letter received from Cath Phillips.

All were in agreeance to allow Peter Reurich entry to the club on the proviso that ‘Boofhead’ meets hygiene and behaviour standards. Mr Elliott advised he would like to see something in writing from the Health Department to advise Terms & Conditions that the dog is to be allowed entry into the club.

Mr Elliott said he would also like to know what the Country Club are doing regarding allowing Mr Reurich entry as Mr Duff advised he is now allowed entry into the Bowling Club.

Proposed Mr Roach            Second Mr Paton

    That Mr Peter Reurich is allowed entry to the club until such time as his dog ‘Boofhead’ does not meet hygiene or behaviour standards or he behaves in a manner which is conduct unbecoming of a member.

CARRIED

113    Mr Simpson agreed that the board did not set any specific hygiene or behaviour standards for Boofhead at the time it made its resolution. Mr Simpson said that he was aware that Mr Reurich had been told he was not permitted to walk away and leave Boofhead unattended by Club employees, but accepted that such a requirement was not referred to in the board minutes.

3.13    10 February 2015 Incident

114    On 10 February 2015 Mr Reurich and Boofhead went to the Club. There were two conversations recorded by Mr Reurich and included in the Agreed Transcript which took place on 10 February 2015. Mr Reurich alleged that prior to the conversations in the Agreed Transcript Mr Brooks told Mr Reurich to “take the dog outside”. The first conversation in the Agreed Transcript was between Mr Reurich, Mr Brooks and a third person who was not identified in the Agreed Transcript. The effect of that conversation was that Mr Reurich was informed by the unidentified person that he could not bring Boofhead into the Club because “there’s a process happening”, it had “to go before the board again now” and “while the process is happening, you can’t bring [Boofhead] until that process is done”.

115    The second conversation which was included in the Agreed Transcript was between Mr Brooks and Mr Reurich and was as follows:

Mr Reurich:     It’s got nothing to do with the problem, Jeff. I think it's me you want to get rid of.

Mr Brooks:     That's a possibility.

Mr Reurich:     Well, why? What have I done? I've never mucked up here at all. I've never done nothing wrong in your club.

Mr Brooks:     You're rude to people.

Mr Reurich:     I'm rude to people? Who am I rude to?

Mr Brooks:     Me for a start.

Mr Reurich:     Haha, I’m not rude to you, you’re the one rude to me. You're breaking the law, for a start. I've never been rude to you. I've never had nothing to do with you basically because I think you were quite rude to me.

Mr Brooks:     Is that, is that correct?

Mr Reurich:     I think you’re quite rude to me in general, yeah.

Mr Brooks:     Mate, put it this way, if I don't like your attitude, I don't have to let you in the club.

Mr Reurich:     Well do what you have to do, can you come here for a minute?

Mr Brooks:     This is a club for the members.

Mr Reurich:     He's just making threats to me again.

Mr Brooks:     I'm not making threats to you at all.

Mr Reurich:     You were just telling, you’re just telling me you can stop me from coming in the club.

Mr Brooks:     I can.

Mr Reurich:     For no reason again?

Mr Brooks:     Not for no reason.

Mr Reurich:     What reason?

Mr Brooks:     I don't like the way you're speaking to me.

Mr Reurich:     Mate hahaha. I don't like the way you speak to me, you tell me my dog smells. That's not a very nice thing to say to a person. What if you smell all your customers and …

Mr Brooks:     You told me the other week I smell.

Mr Reurich:     Well you smell of cigarettes, you do. This is the point. You’re telling me my dog smells and you smoke cigarettes. And on top of that, your boss tells me the dog doesn't even smell so where does that leave you?

Mr Brooks:     Well he didn’t the other day and what were you told?

Mr Reurich:     He simply told me…

Mr Brooks:     What did he tell you?

Mr Reurich:     Derek told me my dog didn’t smell.

Mr Brooks     That's fine and then what did he tell you after that? That it's got to go to the board meeting, that’s until they decided that your dog's allowed in the club.

Mr Reurich:     No, the law's the law. You should have made your mind up by now. You should have a letter by now, a second letter from Cathy so and on top of that, I find you personally discriminated against me personally so I'm taking you to court…

Mr Brooks:     Is that right?

Mr Reurich:     Yes you have because you've discriminated against me and my dog, and tell me my dog's not trained, you tell me he smells, what else do you want to say about him, you don't like my dog?

Mr Brooks:     I don't like your dog and I don't like you.

Mr Reurich:     You don't like me?

Mr Brooks:     No.

Mr Reurich:     Well that's alright, but that doesn't mean...

Mr Brooks:     And that's my opinion.

Mr Reurich:     So you're in a position of power, you can't use that power to persecute me or discriminate against me, and that's what you've done.

Mr Brooks:     Do you think?

Mr Reurich:     You're going to use that power again are we?

Mr Brooks:     Do you think?

Mr Reurich:     Yeah, you shouldn't be using that power to discriminate.

Mr Brooks:     I don't have to stand here and cop rubbish from you.

Mr Reurich:     I'm not giving you rubbish. I’m trying to…

Mr Brooks:     Yes you are.

Mr Reurich:    Mate, this used to be an RSL club.

Mr Brooks:     Yes.

Mr Reurich:     ANZAC would be ashamed of you running this place.

Mr Brooks:     Is that right?

Mr Reurich:     So where do we stand, next time I come here can you tell me to go? Or have you barred me again or not?

Mr Brooks     No.

Mr Reurich:     Well you’re sort of threatening to do that again.

Mr Brooks:     Not yet.

Mr Reurich:     You were.

Mr Brooks:     Not yet there you go, good on ya.

Mr Reurich left with Boofhead.

116    Mr Brooks did not bar Mr Reurich from the Club on 10 February 2015 nor at any time after that date. He did not recall whether in the period from 10 February 2015 to 12 June 2015 he told anyone that Mr Reurich was not permitted to enter the Club or not permitted to use the courtesy bus.

117    On or about 10 February 2015 Mr Reurich and Ms Phillips each received a letter from the Club dated 10 February 2015. I infer that Mr Reurich received this letter after his interactions referred to above for a number of reasons. First, the fact that it was dated 10 February 2015 means, unless it was couriered (which does not appear to be the case on the face of the document), that he received it after 10 February 2015. Secondly, Mr Reurich did not refer to the letter in his lengthy conversation with Mr Brooks. Thirdly, the Club employees with whom Mr Reurich spoke on 10 February 2015 were clearly under the impression that the board had not yet considered the matter. The letter to Mr Reurich stated:

This correspondence is to confirm the decision of the Board of Directors at their meeting held on Monday, 9th February, 2015 that the one (1) month suspension given to you is sufficient.

We would like to advise that you are allowed entry to the Club with your dog "Boofhead" on the proviso that Boofhead complies with appropriate hygiene and behaviour standards at all times whilst on club premises.

We would also like to remind you the Board of Directors will not tolerate aggressive or argumentative behaviour towards staff.

Please be aware if you behave in a manner not becoming of a member then the matter will be dealt with in accordance with Clause 49(a) of the Club's Constitution.

Mr Ohlston, the author of this letter, accepted that it said nothing about the need for Boofhead to be by Mr Reurich’s side at all times, at what distance Mr Reurich could be from Boofhead or when they could be separated. He accepted that nothing about that issue was put in writing to Mr Reurich in the period leading up to 12 June 2015.

118    The letter dated 10 February 2015 addressed to Ms Phillips stated:

With reference to your letter dated 3rd February, 2015 which was tabled for discussion at the Board of Directors meeting held on Monday 9th February, 2015.

Please find enclosed a copy of letter that was sent to Mr Peter Reurich.

The Board and I take exception to your comment in the correspondence dated 3rd February, 2015 in which you state "This admission would indicate that the original claim by club staff that Boofhead, was dirty was simply a ploy to refuse Peter access.”

Numerous staff members have attested to the fact that Boofhead was dirty and his hair so badly matted that it resembled dreadlocks along with an odour that permeated the foyer.

My staff does not tell lies or create fabrications which are entirely unnecessary as Mr Reurich was originally refused entry and suspended from the club for the period of one month for his abuse of staff members.

119    Following receipt of the letter dated 10 February 2015 from the Club, Mr Reurich withdrew the First AHRC Complaint.

3.14    Mr Tripp’s note

120    On 27 February 2015 Mr Tripp prepared a note to record what he described as the board’s direction to him in relation to Mr Reurich’s use of the courtesy bus. That note provided:

Re Mr Peter Reurich and his dog boofhead

Dog not allowed on bus seat at any time. The dog is also not allowed on the bus if it smells, dirty and or scruffy. If these requests are not met refuse entry onto the bus. Malcolm will be on holidays for two weeks, he has already advised Mr Reurich of these conditions. Malcolm has also discussed this situation with Rod Simpson.

3.15    March/April 2015 Incident

121    On a day in March or April 2015, which Mr Reurich can no longer precisely recall, Mr Reurich was on the Club’s courtesy bus with Boofhead when Mr Tripp told him that his dog smelt. Mr Reurich told Mr Tripp that he thought he was being a bully. Mr Tripp acknowledged that he had a conversation with Mr Reurich to this effect but denied that he was bullying Mr Reurich or discriminating against him. He said he was simply pointing out that Mr Reurich needed to keep Boofhead clean and hygienic.

122    Later at the Club Mr Reurich was approached by a couple who he did not know but who had been on the courtesy bus with him. The female said to Mr Reurich “You know, the driver asked us to complain to the [C]lub about your dog”. Her partner said to Mr Reurich “Yes, he said to write a complaint, tell the [C]lub the dog smells”. The female then said “We said no. We thought it was bizarre”.

123    Mr Tripp’s evidence was that he “was asked by a couple of patrons that the dog did smell and that [he] asked them to go and complain to management”.

3.16    19 April 2015 Incident

124    On 19 April 2015 Mr Reurich rang the Club requesting that the courtesy bus pick him up. He was put through to Mr Tripp who agreed to collect him that afternoon.

125    When Mr Reurich boarded the courtesy bus with Boofhead at around 3.15 pm, he had an exchange with Mr Tripp to the following effect:

Mr Tripp:    Get the dog off the bus!

Mr Reurich:    You’re acting illegally – Boof is allowed. You know that.

Mr Tripp:    Get the dog off the bus!

126    Mr Reurich and Boofhead got off the bus and stood near the door. Mr Reurich got his phone out and said “wait a minute while I get my video on the phone” and then started recording on his phone. Mr Reurich and Mr Tripp then had the following conversation, which Mr Reurich recorded and which was in the Agreed Transcript:

Mr Tripp:    Turn it off, now.

Mr Reurich:    I just want… you’re on video now…

Mr Tripp:    Turn it off or I’ll call the police.

Mr Reurich:    Mate, I just want you to rephrase what you just told me that the boss, that the dog is not, he’s allowed by law on the bus.

Mr Tripp:    No he’s not. Off.

Mr Reurich:    Come here Boof.

Mr Tripp:    (inaudible) you can get off.

Mr Reurich:    Well, mate, by law he’s allowed to…

Mr Tripp:    Off. I haven’t got time for this Peter.

Mr Reurich:    Mate, you play the bullying little game like you did last time…

Mr Tripp:    Turn it off Peter.

Mr Reurich:    Well you’re on video, tell me again…

Mr Tripp:    You should have been, you’ve been told…

Mr Reurich:    You tell me…

Mr Tripp:    I’ll turn about, you’ve been told, you have been said about that the dog is not allowed on the bus.

Mr Reurich:    No, but the letter, but the letter does not say that.

Mr Tripp:    (inaudible) Turn that f**king thing off now.

Mr Reurich:    No, just wait a minute.

Mr Tripp:    Turn it off.

Mr Reurich:    I told you you’re on video.

Mr Tripp:    Get off.

*door closes*

Mr Reurich:    Mate…

Mr Tripp:    (pointing) Turn that off. I’ll smash it.

Mr Reurich:    Don’t touch me.

Mr Tripp:    I’ll smash it.

Mr Reurich:    Don’t you touch me.

Mr Tripp:    Don’t you video without any…

Mr Reurich:    I told you it was on video. I told you (inaudible).

Mr Tripp:    I’ll get the police (inaudible).

Mr Reurich:    Mate, get… Mate, do not touch me.

Mr Tripp:    Off. Don’t… (inaudible) you hit me…

Mr Reurich:    Mate, you touch me…

Mr Tripp:    I’ll call the police.

Mr Reurich:    You call the police. Go on, call them.

Mr Tripp:    (inaudible)

Mr Reurich:    Mate, the letter, if you wait, I’ll get the letter, if you wait I will get the letter and show you the letter cause you’re trying to be a bully and you’ve played this game before. You’re still on video.

According to Mr Reurich, during this exchange, Mr Tripp got out of the bus and came over to where he was standing with Boofhead outside the bus doors, lunged for Mr Reurich’s phone and started throwing circular punches at Mr Reurich while he raised his arms trying to defend himself. Mr Tripp’s last punch allegedly hit Mr Reurich. After final words were exchanged, Mr Tripp drove off without Mr Reurich and Boofhead.