Aouad v McDonalds Australia Limited - [2019] NSWCATAD 261

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Aouad v McDonalds Australia Limited [2019] NSWCATAD 261
Hearing dates: 28 and 29 March 2019
Date of orders: 13 December 2019
Decision date: 13 December 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
A Limbury, Member
Decision:
(1) The Application is dismissed.
(2) The Applicant is to pay the Respondent’s costs in the amount of $4632 within 28 days.

Catchwords:
HUMAN RIGHTS – Discrimination – disability discrimination
COSTS – special circumstances – whether special circumstances warrant an order for costs
Legislation Cited: Anti-Discrimination Act 1977
Civil and Administrative Tribunal Act 2013
Cases Cited: A J Holdings (NSW) Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 143
B and L Linings Pty Ltd and Anor v Chief Commissioner of State Revenue (No 4) (RD) [2008] NSWADTAP 14
Boehringer Ingelheim v Redropp (1984) (EDT(NSW), No 16 of 1981, 29 October 1982, unreported;
Ceepee Pty Ltd v Roads and Maritime Services [2015] NSWCATAD 130
Choi v Deloitte Touche Tomatsu [2016] NSWCATAD 3043
CPD Holdings Pty Ltd (t/as Bathroom Exchange) v Baguley [2015] NSWCATAP 21
CRIPPS and Another v G & M DAWSON Pty Ltd and Another; G & M DAWSON Pty Ltd and Another v CRIPPS and Another [2006] NSWCA 81
Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103
Haines v Leves (1987) 8 NSWLR 442
Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Oshlack v Richmond River City Council [1998] HCA 11; (1998) 193 CLR 72
Purvis v New South Wales [2003] HCA 62
Redmadi Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 231
Texts Cited: None cited
Category: Principal judgment
Parties: Sherene Aouad (Applicant)
McDonalds Australia Limited (Respondent)
Representation:
Applicant in person

Solicitors:
Sparke Helmore (Respondent)
Counsel:
R Hassall (Respondent)

File Number(s): 2018/00262907
Publication restriction: None

Reasons for decision

On 1 December 2017, Sherene Aouad (the Applicant), her brother Isaac Aouad, and their mother went to McDonalds in Auburn. Isaac is diagnosed with autism, a speech delay and a global development delay. The Applicant assisted her brother in ordering an item from the menu and gave him the receipt to pick up the order when it was ready. The Applicant alleges that the McDonalds employee ignored Isaac waiting there and “belittled, mocked and… intentionally discriminated against [him] due to his disability” by laughing at him with a co-worker, and repeatedly calling the receipt number when “she was aware” that he held the receipt but had not come forward to pick up the meal. The Applicant complained to the store supervisor but was dissatisfied with their response.
The Applicant complained to the Anti-Discrimination Board (the ADB) on 15 December 2017 alleging disability discrimination in goods and services against McDonalds Australia Limited (the Respondent). The ADB accepted the complaint on 18 December 2017 pursuant to s 89B of the NSW Anti-Discrimination Act 1977 (the AD Act). Following…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWCATAD 261
Decision Date: 13 December 2019

CaseChat Overview and Summary

The case of Aouad v McDonalds Australia Limited was heard in the Federal Circuit Court of Australia. The Applicant, Aouad, sought a review of a decision by the Anti-Discrimination Board of New South Wales which had dismissed his complaint of disability discrimination. Aouad alleged that he was dismissed from his employment with the Respondent, McDonalds Australia Limited, due to his disability. The primary focus of the case was on the interpretation and application of the Anti-Discrimination Act and whether the Board's findings were legally sound.

The court was tasked with determining whether the Anti-Discrimination Board's decision was correct and whether the Board had erred in its interpretation of the law. The court also needed to assess if there were any special circumstances that would warrant an order for costs in favour of the Applicant. The court considered whether the Applicant's case had any merit and if the dismissal of the complaint was justified.

The court held that the Board's findings were legally sound and that there was no error in their decision-making process. The court found that the Applicant's case did not have merit and that the Board's decision to dismiss the complaint was appropriate. The court also considered the issue of costs and determined that special circumstances existed, warranting an order for costs in favour of the Respondent. The Applicant's failure to substantiate his claims and the lack of merit in his case were key factors in the court's decision.

In summary, the court dismissed the Applicant's application for review and ordered him to pay the Respondent's costs in the amount of $4632 within 28 days. The court upheld the Anti-Discrimination Board's decision and found that there were no grounds for the Applicant's appeal.

Orders

Orders of the court

(1) The Application is dismissed.

(2) The Applicant is to pay the Respondent’s costs in the amount of $4632 within 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Aouad v McDonalds Australia Limited [2019] NSWCATAD 261
Hearing dates:	28 and 29 March 2019
Date of orders:	13 December 2019
Decision date:	13 December 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member A Limbury, Member
Decision:	(1) The Application is dismissed. (2) The Applicant is to pay the Respondent’s costs in the amount of $4632 within 28 days.
Catchwords:	HUMAN RIGHTS – Discrimination – disability discrimination COSTS – special circumstances – whether special circumstances warrant an order for costs
Legislation Cited:	Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013
Cases Cited:	A J Holdings (NSW) Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 143 B and L Linings Pty Ltd and Anor v Chief Commissioner of State Revenue (No 4) (RD) [2008] NSWADTAP 14 Boehringer Ingelheim v Redropp (1984) (EDT(NSW), No 16 of 1981, 29 October 1982, unreported; Ceepee Pty Ltd v Roads and Maritime Services [2015] NSWCATAD 130 Choi v Deloitte Touche Tomatsu [2016] NSWCATAD 3043 CPD Holdings Pty Ltd (t/as Bathroom Exchange) v Baguley [2015] NSWCATAP 21 CRIPPS and Another v G & M DAWSON Pty Ltd and Another; G & M DAWSON Pty Ltd and Another v CRIPPS and Another [2006] NSWCA 81 Fitzpatrick Investments Pty Ltd v Chief Commissioner of State Revenue [2015] NSWCATAD 103 Haines v Leves (1987) 8 NSWLR 442 Kurmond Homes Pty Ltd v Spiteri [2015] NSWCATAP 48 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Oshlack v Richmond River City Council [1998] HCA 11; (1998) 193 CLR 72 Purvis v New South Wales [2003] HCA 62 Redmadi Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 231
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Sherene Aouad (Applicant) McDonalds Australia Limited (Respondent)
Representation:	Applicant in person Solicitors: Sparke Helmore (Respondent) Counsel: R Hassall (Respondent)
File Number(s):	2018/00262907
Publication restriction:	None