SUPREME COURT OF QUEENSLAND
CITATION:
Dovedeen Pty Ltd & Anor v GK [2013] QCA 116
PARTIES:
DOVEDEEN PTY LTD
(first applicant)
JOAN HARTLEY
(second applicant)
v
GK
(respondent)
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(amicus curiae)FILE NO/S:
Appeal No 7794 of 2012
QCAT No 416 of 2011DIVISION:
Court of Appeal
PROCEEDING:
Miscellaneous Application – Civil
ORIGINATING COURT:
Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:
17 May 2013
DELIVERED AT:
Brisbane
HEARING DATE:
19 March 2013
JUDGES:
Fraser and Gotterson JJA and Margaret Wilson J
Separate reasons for judgment of each member of the Court, Fraser and Gotterson JJA concurring as to the orders made, Margaret Wilson J dissenting in partORDERS:
1. Grant leave to appeal.
2. Allow the appeal.
3. Set aside the decision and orders made by the Appeal Tribunal of the Queensland Civil and Administrative Tribunal on 31 July 2012.
4. In lieu thereof, order that the appeal to the Appeal Tribunal against the decision of the Queensland Civil and Administrative Tribunal made on 25 October 2011 be dismissed.
5. Leave to the parties to make submissions in accordance with paragraph 52 of Practice Direction No 2 of 2010 as to the costs of the proceedings in the Court of Appeal and of the appeal to the Appeal Tribunal in the Queensland Civil and Administrative Tribunal.
CATCHWORDS:
HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION DUE TO STATUS – where the first applicant trades as a motel, and the second applicant is a director and manager of that motel – where the respondent was a self-employed sex worker who stayed at the motel for the purposes of prostitution – where the second applicant refused the respondent accommodation in the future – where the respondent accepted that she had been refused accommodation because she was performing the work of a sex worker at the motel – where s 7(l) of the Anti‑Discrimination Act 1991 (‘the Act’) prohibits discrimination on the basis of the attribute of ‘lawful sexual activity’ – where Schedule 2 of the Act defines ‘lawful sexual activity’ as ‘a person’s status as a lawfully employed sex worker, whether or not self-employed’ – where the Appeal Tribunal found, and the respondent contended, that the definition of ‘lawful sexual activity’ should be read to include the carrying on of such activity at the time the conduct occurred – whether the Appeal Tribunal correctly applied the definition ‘lawful sexual activity’ – whether the respondent suffered discrimination because of her ‘status as a lawfully employed sex-worker’
HUMAN RIGHTS – DISCRIMINATION – DIRECT DISCRIMINATION – where the respondent complained of direct discrimination on the basis of her attribute of ‘lawful sexual activity’ within the meaning of s 10(1) of the Act – where the respondent contended that the discrimination occurred in the pre-accommodation area as prescribed in ss 82 and 83 of the Act – where the Tribunal member found the appropriate comparator was a person without the attribute of a ‘lawful sex worker’…
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- Case
- [2013] QCA 116
- Decision Date
CaseChat Overview and Summary
The court considered whether the Appeal Tribunal correctly interpreted the definition of ‘lawful sexual activity’ to include the carrying on of such activity at the time the conduct occurred. The court found that the Appeal Tribunal had erred in its interpretation of the definition and that the respondent suffered discrimination because of her status as a lawfully employed sex worker. The court also considered whether the appropriate comparator was a person without the attribute of a ‘lawful sex worker’ but who was seeking accommodation for the purpose of prostitution, or a person seeking accommodation for any lawful purpose, but not for prostitution or lawful sexual activity. The court held that the Appeal Tribunal had erred in its application of s 10(1) of the Act.
The court further considered the issue of a non-publication order in the Court of Appeal. The court held that a non-publication order should not be granted as the respondent had not established that exceptional circumstances existed to warrant such an order.
The court granted leave to appeal, allowed the appeal, set aside the decision and orders made by the Appeal Tribunal, and ordered that the appeal to the Appeal Tribunal be dismissed. The court also invited the parties to make submissions as to the costs of the proceedings.
Orders
Orders of the court
1. Grant leave to appeal.
2. Allow the appeal.
3. Set aside the decision and orders made by the Appeal Tribunal of the Queensland Civil and Administrative Tribunal on 31 July 2012.
4. In lieu thereof, order that the appeal to the Appeal Tribunal against the decision of the Queensland Civil and Administrative Tribunal made on 25 October 2011 be dismissed.
5. Leave to the parties to make submissions in accordance with paragraph 52 of Practice Direction No 2 of 2010 as to the costs of the proceedings in the Court of Appeal and of the appeal to the Appeal Tribunal in the Queensland Civil and Administrative Tribunal.
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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