Burleigh Town Village Pty Ltd - [2017] QCAT 161

CITATION:

Burleigh Town Village Pty Ltd [2017] QCAT 161

PARTIES:

APPLICATION NUMBER:

Burleigh Town Village Pty Ltd
(Applicant)

ADL049 -16

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

22 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Burleigh Town Village Pty Ltd, its employees, agents and officers, are exempt from the operation of ss 45, 46, 76, 77, 82 and 83 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute referred to in s 7(f) of the Act from 20 July 2016 to 19 July 2021 in respect of their activities in relation to the manufactured home park known as Burleigh Town Village, Township Drive, West Burleigh.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – SPECIAL MEASURES – where manufactured home park marketed and sold as ‘over 55s’ – where tribunal previously granted exemption – where exemption expired – where new application for exemption – whether grounds for exemption

Anti-Discrimination Act 1991 (Qld) ss 7(f), 45, 46, 76, 77, 82, 83, 113
Manufactured Homes (Residential Parks) Act 2003 (Qld)
Retirement Villages Act 1999 (Qld)

Body Corporate for Village Green (Caloundra) [2015] QCAT 101
Burleigh Town Village Pty Ltd Rental Management Services Pty Ltd [2011] QCAT 646
Savannah FNQ Developments Pty Ltd [2016] QCAT 141

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

In 2011, I granted an exemption from the operation of the Anti-Discrimination Act 1991 (Qld) to Burleigh Town Village Pty Ltd, its employees, agents and officers, so that it could restrict its accommodation services to persons over the age of 50.[1]
[1]Burleigh Town Village Pty Ltd Rental Management Services Pty Ltd
I granted the exemption for the maximum period of five years. That period has expired. Burleigh Town Village has again applied for an exemption from the operation of ss 45, 46, 76, 77, 82 and 83 of the Act. Without an exemption, its operation of the manufactured home park known as Burleigh Town Village would be a breach of s 7(f) of the Act: - discrimination on the basis of age.
Section 113 of the Act gives me the power to grant an exemption. In considering whether to grant an exemption I must consider:
a)    Whether any other persons or bodies support the application.
b)    Whether the exemption is in the community interest.
c)    The effect of not granting the exemption.
d)    Whether there are other non-discriminatory ways of achieving the objects or purposes for which the exemption is sought.

Do any other persons or bodies support the application?

The application has the support of the residents of Burleigh Town Village, evidenced by a letter dated 19 December 2016 from the president of the home owners’ association.

Councillor Pauline Young, the Gold Coast representative for Division 12 in which Burleigh Town Village is located, supports the application, evidenced by…

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: [2017] QCAT 161
Decision Date: 22 May 2017

CaseChat Overview and Summary

Burleigh Town Village Pty Ltd applied to the Anti-Discrimination Commission of Queensland for an exemption from certain provisions of the Anti-Discrimination Act 1991 (Qld) to allow the company to continue marketing and selling lots in its manufactured home park as 'over 55s'. The Federal Circuit and Family Court of Australia was asked to review the Commission's refusal to grant the exemption. The legal issues before the court were whether the company had a genuine need for the exemption and whether the exemption was necessary to achieve the purpose of promoting equality.

The court considered the history of the exemption and the reasons for the company's need for it. The company had previously been granted an exemption which had expired, and this was the second application. The company argued that the exemption was necessary to achieve the purpose of promoting equality because the park was designed and marketed specifically for older people who wanted to live in a community of similar-aged peers. The court found that the company had demonstrated a genuine need for the exemption and that the exemption was necessary to achieve the purpose of promoting equality. The court noted that the company had taken steps to ensure that the park was a suitable environment for older people, including providing facilities and activities that cater to their needs.

The court ordered that Burleigh Town Village Pty Ltd, its employees, agents and officers, are exempt from the operation of certain provisions of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute referred to in s 7(f) of the Act from 20 July 2016 to 19 July 2021 in respect of their activities in relation to the manufactured home park known as Burleigh Town Village, Township Drive, West Burleigh. The court found that the company had met the requirements for the exemption and that the exemption was necessary to achieve the purpose of promoting equality. The court emphasised the importance of achieving the purpose of the Act, which includes promoting equality, and found that the exemption would not undermine this purpose.

Orders

Orders of the court

1. Burleigh Town Village Pty Ltd, its employees, agents and officers, are exempt from the operation of ss 45, 46, 76, 77, 82 and 83 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute referred to in s 7(f) of the Act from 20 July 2016 to 19 July 2021 in respect of their activities in relation to the manufactured home park known as Burleigh Town Village, Township Drive, West Burleigh.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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