Crowley v Jackson - [2023] QCAT 227

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Crowley v Jackson [2023] QCAT 227

PARTIES:

ANNE CROWLEY

(applicant)

v

SCOTT JACKSON AS TRUSTEE FOR THE CUBA ST TRUST

(respondent)

APPLICATION NO/S:

ADL075-22

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

15 June 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1. The application is dismissed.

CATCHWORDS:

HUMAN RIGHTS - DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – where the respondent operates a café – where public health directives were in place during COVID-19 - where the applicant was refused service for refusing to wear a mask – where the applicant claimed a medical exemption from wearing a mask – where the applicant says imposing a term of wearing a face mask as a condition of service amounts to indirect discrimination

Anti-Discrimination Act 1991 (Qld) s 6, s 7, s 9, s 11, s 45, Sch
Equal Opportunity Act 2010 (Vic) s 44
Police Powers and Responsibilities Act 2000 (Qld) s 791
Public Health Act 2005 (Qld) s 319, s 362D
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32

ASQ v Harcourts Rata & Co Pty Ltd (Human Rights) [2022] VCAT 139
Hunt & Ors v Dr John Gerrard, Chief Health Officer & Anor [2022] QCA 263

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

What is the application about?

During the COVID-19 pandemic, staff employed in Mr Jackson’s café refused to sell a bag of coffee beans to Mrs Crowley because she was not wearing a face mask, despite her insistence that she was medically exempt from the requirement.
Upon referral of a complaint[1] by Mrs Crowley to the Queensland Human Rights Commission (QHRC), the question for the Tribunal in these proceedings is whether Ms Crowley was unlawfully discriminated against in those circumstances.
[1]9 December 2022.
Mr Crowley seeks orders that:[2]
(a)Mr Jackson apologise to her;
(b)Mr Jackson and his staff engage in disability discrimination training; and
(c)Mr Jackson pay her $2,000 for psychological damage and distress.
[2]Statement filed 13 August 2022.
Mr Jackson did not participate in the proceedings, failing to file a response to Mrs Crowley’s Statement of Contentions, despite extended opportunities to do so.[3] Accordingly, this decision is made entirely based on Mrs Crowley’s evidence.
[3]Tribunal directions made 9 August 2022, 12 December 2022, 19 January 2023 and 3 March 2023.

The circumstances in which the discrimination is alleged to have occurred

According to statements filed by Mrs Crowley and by her husband, Mr Crowley:[4]
[4]Statements of Mrs Crowley dated 13 August 2022 and 10 April 2023, and of Mr Crowley dated 10 August 2022 and 16 April 2023.
(a)Ms Crowley was a long-term customer of the Cuba St Coffee Roasters.
(b)On 14 August 2021 she was refused service at the café upon attending to buy a bag of coffee beans.
(c)Service was refused because Mrs Crowley was not wearing a mask.
(d)She purported to rely on a medical…

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.

Continue reading Crowley v Jackson

Details

AGLC: Crowley v Jackson [2023] QCAT 227
Case: [2023] QCAT 227
Decision Date: 15 June 2023

CaseChat Overview and Summary

Crowley v Jackson is a case concerning the legality of refusing service to an individual who refused to wear a face mask due to a claimed medical exemption, at a café where public health directives required masks during the COVID-19 pandemic. The matter was heard in the relevant court, which was tasked with determining whether the refusal to serve the applicant constituted indirect discrimination under the applicable discrimination legislation. The applicant argued that the requirement to wear a face mask imposed by the café as a condition of service was discriminatory, despite the presence of the public health directives.

The court was required to decide whether the refusal to serve the applicant amounted to indirect discrimination. This involved examining the legislation and relevant case law to determine whether the café's requirement for a face mask constituted a condition or requirement that placed the applicant at a disadvantage compared to others who were not subject to such a condition, and whether this was related to the applicant's disability or medical condition. The court also needed to consider the public health directives and the café's obligations under them, as well as the applicant's evidence of a medical exemption.

The court found that the requirement to wear a face mask was a lawful condition under the public health directives, and that the café was not in breach of the discrimination legislation by refusing service to the applicant who refused to comply with this requirement. The court held that the applicant had not demonstrated that the imposition of the mask requirement amounted to indirect discrimination, as it applied equally to all customers and was not related to the applicant's disability or medical condition. The application was dismissed, and the court found in favour of the café.

No further orders were made by the court beyond the dismissal of the application.

Orders

Orders of the court

1. The application is dismissed.

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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