Evans v McConaghy Shopping Centres Pty Ltd

[2022] NSWCATAD 406

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Evans v McConaghy Shopping Centres Pty Ltd [2022] NSWCATAD 406

Hearing dates:

27 September 2022

Date of orders:

21 December 2022

Decision date:

21 December 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

1. Pending final determination in these proceedings, the first respondent is to permit the applicant to attend the premises known as Grafton Shoppingworld accompanied by her assistance dog.

2. Grant liberty to the parties on three days’ notice to have the matter re-listed for further directions.

Catchwords:

HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) – interim order – prima facie case – balance of convenience – complaints of victimisation and discrimination on ground of disability

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Companion Animals Act 1998 (NSW)

Disability Discrimination Act 1992 (Cth)

Work Health & Safety Act 2011 (NSW)

Cases Cited:

Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63

Australian Broadcasting Corp (ABC) v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

McEwan v 365 Site Services Pty Ltd [2016] NSWCATAD 310

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Vicki Evans (Applicant)
McConaghy Shopping Centres Pty Ltd (First Respondent)
Brendan Wilson (Second Respondent)

Representation:

Counsel:
K Fallah (Applicant)
D Payard (Respondents)

Solicitors:
Michael Green Legal (Applicant)
Holding Redlich (Respondents)

File Number(s):

2022/00055905, 2022/00276515

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. Ms Evans seeks interim orders pursuant to the Anti-Discrimination Act 1997 (NSW), s 105, to allow her access to attend premises of the first respondent, known as Grafton Shoppingworld, and that she be permitted to enter those premises accompanied by her assistance dog.

2. Ms Evans’ substantive application under the Anti-Discrimination Act is still at a relatively early stage. Points of Claim were filed on 8 July 2022, and Points of Defence were filed on 8 September 2022. I am informed by counsel for Ms Evans that a reply will be filed in due course.

Background

3. Ms Evans is a woman in her 70s who lives in a small town in the Northern Rivers district of New South Wales.

4. There is no dispute that Ms Evans is a person with a disability. She suffers from several diagnosed mental illnesses and conditions, including complex post-traumatic stress disorder. Additionally, she has a cardiac condition for which she receives treatment. Ms Evans has been under the care and treatment of Dr Pearson, a consultant psychiatrist, since 2009. In the course of the hearing, Dr Fallah, counsel for Ms Evans pro bono, submitted that Ms Evans’ conditions are so debilitating that she requires the appointment of a guardian ad litem. Orders have been made for that appointment.

5. There also appeared to be no dispute that Ms Evans’ condition is assisted by the use of her assistance dog who is called Sophie. Sophie is a mixed breed referred to by Ms Evans in her written evidence as a “sheepadoodle”. Ms Evans deposes to having specifically selected and trained her dog and that from July 2020, her dog had completed her training, but her formal accreditation had been delayed due to the local certifier becoming ill.

6. Ms Evans’ written evidence is that, in about August 2020, she spoke with a staff member in the centre management office of Grafton Shoppingworld and obtained permission to attend the centre with her dog on condition that the dog wears a specific coat identifying it as an assistance animal. Ms Evans complied with this condition and attended Grafton Shoppingworld almost daily with her dog without incident. The respondents dispute that any such permission was granted. Mr Wilson’s evidence is that he drafted the assistance animal policy for the first respondent because he was increasingly concerned about the number of people bringing their pets to Grafton Shoppingworld using the pretext of such pets being assistance animals. In his written evidence on this application, Mr Wilson repeatedly referred to Ms Evans’ assistance dog as a pet.

7. The substance of the dispute between Ms Evans and the respondents arose from a series of incidents between about 8 and 14 October 2020. The following facts are presented in summary and only for the context of the present application;

1. On about 8 October 2020, Ms Evans, after bringing her assistance dog along with her to shop on an almost daily basis, was challenged by a security guard at Grafton Shoppingworld about whether her assistance dog was properly accredited. In particular, Ms Evans was required by the security guard to present documentation showing the dog was certified. Ms Evans did not have that material in her possession. Contrary to matters asserted in the points of defence filed on 9 September 2022, the respondents now appear to concede that the security guard had been directed to implement a policy, a copy of which was exhibited to Mr Wilson’s affidavit, that was not compliant with the definition of assistance animal provided in the Companion Animals Act 1998 (NSW), s 5, which in turn takes its definition from the Disability Discrimination Act 1992 (Cth), s 9(2). The federal legislative definition provides, in summary, that an assistance animal can either be accredited or appropriately trained to assist a person with a disability. It is equally clear from Mr Wilson’s account of the events of about 8 and 9 October 2020 that when he spoke with Ms Evans on 9 October 2020, he relied upon and incorrectly asserted that the policy was in conformity with the definitional provisions.

2. Either shortly after or during her exchange with the security guard on 8 October 2022, Ms Evans telephoned the management office of Grafton Shoppingworld to clarify her understanding of whether she was permitted to bring her dog to the centre. Ms Evans spoke to Ms Finnegan, and in the course of that call, she asserted her rights under anti-discrimination laws. It seems Ms Evan’s call was terminated by Ms Finnegan. Ms Evans then left the centre voluntarily. She deposes that she was left in tears. She did not again return to Grafton Shoppingworld with her dog.

3. The next day, about 9 October 2020, Ms Evans telephoned Grafton Shoppingworld again. This time she spoke to Ms Colson, who, according to Ms Evans’ affidavit, also hung up on her. Mr Wilson gives written evidence to the effect that Ms Evans had been abusive to Ms Finnegan and Ms Colson however, aside from an email sent by Ms Coulson where she states that Ms Evans was abusive and admits to hanging up on her, the Tribunal does not have any direct evidence from Ms Finnegan or Ms Colson about this. The Tribunal cannot give much weight to Mr Wilson’s evidence about the calls as he was not a direct observer of what in fact occurred. By contrast, Ms Evans provides a letter from her husband, Rodger, in which he records his observations of Ms Evans’ side of these calls and corroborates Ms Evans’ account of what occurred.

4. About 30 minutes after Ms Colson terminated the call with her, Ms Evans returned in person to Grafton Shoppingworld and attended the centre management office to complain about the manner in which she had been treated and to present her documentation concerning her assistance dog. Her attendance is captured on video footage. The Tribunal has reviewed this footage in detail. It appears that Ms Evans enters the office and immediately as Ms Evans approaches the reception desk, Ms Colson can be seen putting her hand up in a manner to communicate “stop” before Mr Wilson appears and stands behind Ms Evans. There is then an exchange between Ms Evans and Mr Wilson. Both give differing accounts of what was said and what each intended to communicate. However, both accounts agree that for reasons which are not well explained, Mr Wilson refused to look at the documents Ms Evans’ had brought with her and instead asked Ms Evans to leave. At some point, a security guard attends. Ms Evans refused to leave, and Mr Wilson stood in the foyer of the office with the security guard before two police officers arrived. The police officers speak to Ms Evans, and she leaves with them. Having regard to Ms Evans’ disability which appears to have been apparent to the first respondent’s staff the behaviour of the respondents was not appropriate.

5. Also on 9 October 2020, in the minutes between Ms Colson hanging up the call on Ms Evans’ and her attendance in person at the centre management office, Mr Wilson sent an email to Ms Finnegan in which he stated:

Hi K, Mrs Evans has attempted to get Council to negotiate access to GSW on her behalf.

I met with Council Rangers this arvo after (Mrs Evans made a similar abusive call to Council) and we are all on board with refusing to concede to Mrs Evans efforts to subvert the rules.

I’ve attempted to return her call to shut this BS down (with no luck) and advise she is not welcome to shop her anymore.

Anything further ie if she calls or comes in over weekend – it’s a security and Police matter.

6. Counsel for Ms Evans says this email, a copy of which is exhibited to Mr Wilson’s affidavit, showed that a decision to ban Ms Evans had already been decided before any of the incidents took place that the respondents now rely on for imposing the ban. Assuming, for the purposes of this application, that Ms Evans’ account of the events of 8 – 9 October 2020 is accepted and/or the rules she sought to “subvert” were discriminatory, the manner in which Ms Evans was treated was unacceptable.

7. Days later, Ms Evans attended a coffee shop at Grafton Shoppingworld where she was seen by security and other staff to be in some distress – she was visibly crying. Centre management staff attended but refused to provide Ms Evans with any first aid or other assistance and instead she was asked to leave by a security guard. She then purchased a knife and returned to the centre management office of Grafton Shoppingworld. Again, there is video footage of her entry into the office. Ms Evans can be seen walking through the door and almost immediately, as she heads toward a corridor on her right, she applies the knife to her left wrist. There is no dispute that Ms Evans went into Mr Wilson’s empty office. A female employee emerges from the same corridor and moves to the reception desk. According to the witness statement of Ms Davies tendered by the respondents on the application, upon seeing Ms Evans, she yelled to Ms Coulson to “Shut the f’ing door”, and in response, Ms Coulson slammed shut the door to the office, which they were both in. Later, Ms Evans locked herself in Mr Wilson’s office. It is not clear how Ms Davies’ account conforms with the footage. While, of course, this must have been a frightening experience for those employees, yelling and slamming a door were unlikely to have served to defuse the situation. Such responses are suggestive of poor training, which, in the context of a continued escalation of disrespectful interactions between Ms Evans and the first respondent’s staff, created a situation that would ultimately result in further injury to Ms Evans.

8. Security guards and Mr Wilson then attend and appear to block the exit and keep watch for the arrival of police.

9. On this occasion, seven uniformed police officers attended the centre management office – two of whom appeared to be wearing tactical vests. What appears to be a further officer in plain clothes, whose gun in a holster can be seen on his belt, attends briefly. Of the seven or eight police attending, only two are female. They have little to do with Ms Evans other than keeping the doors open for the ambulance paramedics and securing the knife after she is disarmed. Mr Evans is also present in the office, but he appears to be ignored then told by a female police officer to sit in a chair. Despite the resources of the respondent and the number of police resources devoted to dealing with an elderly woman in significant distress, Ms Evans was sprayed with capsicum spray within 9 minutes of police attendance at the scene and disarmed. The footage then shows her being carried out by paramedics on a stretcher, and she can be seen holding something to her eyes as she is wheeled out.

10. Thereafter, the respondents say they banned Ms Evans from coming to Grafton Shoppingworld for a period of 12 months – that is until October 2021. On the basis of his email sent before her first arrival in person at the centre management office, Ms Evans contends that Mr Wilson had already decided to ban Ms Evans because of her failure to demonstrate that her assistance dog was an accredited animal and that her conduct with staff had nothing to do with the ban. The respondents claim that Ms Evans knew of the ban and nonetheless attended Grafton Shoppingworld without her dog as late as November 2020.

8. The following year, in October 2021, the respondents decided to issue a
   second ban on Ms Evans’ attendance at the centre. According to Mr Wilson’s affidavit, and despite the second ban coming into force in October 2021, this was “for all actions relating to trespass and armed intrusion into the CMO (centre management office) throughout October and November 2020”. The second ban notice is exhibited to an affidavit of the respondent’s solicitor and refers to two specific incidents as well as the entirety of the reasons contained in the first ban. I agree with the respondents’ submission that, for the purposes of the application for interim relief, the decision to impose an indefinite ban is the only relevant decision.

The Application for Interim Relief

9. The Tribunal has the power under the Anti-Discrimination Act, s 105, to make interim orders on the application of either party to:

1. preserve the status quo between the parties to the complaint, or

2. to preserve the rights of the parties to the complaint, or

3. to return the parties to the complaint to the circumstances they were in before the alleged contraventions of this Act which are the subject of the complaint, were said to have occurred, pending determination of the matter the subject of the complaint.

10. In this case, Ms Evans seeks to have the parties placed in the respective positions they occupied before the conduct she alleges took place in contravention of the Anti-Discrimination Act occurred; that is, she seeks to be allowed to return to Grafton Shoppingworld with her assistance dog.

Applicable Principles

11. At common law, the purpose of interim relief, particularly by way of interim injunction, is to preserve the status quo of the parties pending the final determination of the matter; Australian Broadcasting Corp (ABC) v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [9]. The right to such relief lies in the need by the applicant to ensure that her rights are not practically destroyed by a continuation of the alleged breach; ABC v Lenah Game Meats at [12].

12. In Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63 at [18]-[19] the Appeal Panel considered the principles to be applied in determining whether or not to make an order under the Anti-Discrimination Act, s 105. The Appeal Panel said:

In our view, when determining whether or not to make an interim order, the Tribunal should examine the connection between the form of interim relief, the danger or damage that is sought to be averted by the interim relief, and the final relief which is claimed in the action. This thinking was encapsulated by N Rees, K Lindsay and S Rice, in Australian Anti-Discrimination Law, Text, Cases and Materials, the Federation Press, 2008, at p 690, where the two overlapping purposes of s 105 (and similar provisions throughout Australia) were identified as:

. . .first, to ensure that the processes established by law to deal with complaints of unlawful discrimination are not rendered ineffective as a result of conduct by one of the parties which may make it difficult or impossible for a court or tribunal to grant an appropriate remedy if a complaint is substantiated and, secondly, to protect or preserve those rights of a party which, in the absence of an interim restraining order, may be irreparably damaged as a result of the inevitable delay in processing a complaint.

13. In Dhillon at [13], the Appeal Panel observed that interim orders should do the minimum necessary to do justice between the parties; as typically, such orders are made pending a final determination of the proceedings.

14. In Dhillon at [19], the Appeal Panel noted that the power conferred on the Tribunal under the Anti-Discrimination Act, s 105 was not “at large”, but rather the power was limited to the making of orders relating to or affecting the statutory rights of the parties under the Anti-Discrimination Act.

15. In her Points of Claim as currently filed, Ms Evans makes three discrete claims which may also be characterised as rights under s 105(b). Those are the rights not to be subject to indirect discrimination, not to direct discrimination and the right not to be the subject of victimisation evidence, on her counsel’s submissions, from the detrimental measure taken on the ground that Ms Evans sought to exercise her rights under the Anti-Discrimination Act. Together the claims may be considered as being the “rights” referred to in the Anti-discrimination Act, s 105(b) and may be characterised in a general sense as the right not to be excluded from premises generally available to the public because of her disability and to attend those premises without harassment or victimisation.

16. The form of final relief to be considered is the restoration of Ms Evans’ ability to attend Grafton Shoppingworld – that relief is specified at items 3 and 4 of the orders sought in the filed points of claim. Ms Evans is not precluded from seeking an order on an interim basis which reflects the relief she is seeking, in part, on a final basis: McEwan v 365 Site Services Pty Ltd [2016] NSWCATAD 310. In point of fact, adopting the approach set out in Dhillon, where the final and interim relief are in the same form, the connection between them is readily established.

17. What must be further established is the danger or damage sought to be averted by the interim relief. As the parties noted in their submissions, the general approach adopted in applications for interim relief in this Tribunal and elsewhere is two-fold; firstly, to determine whether there exists a prima facie case and secondly, to consider the balance of convenience - or whether the burden placed upon the respondents, should interlocutory relief be granted, is not justifiable having regard to the damage or danger sought to be averted. This is consistent with the principles set out in Dhillon at [12] where the appeal panel, referring to High Court authority, considered that while the power of the Tribunal under s 105(b) to grant interim relief is not subject to any express limitation, the principles applicable to interlocutory injunctions provide useful guidance.

Is there a prima facie case?

The Applicant’s Position

18. The phrase "prima facie case" does not mean that Ms Evans must show that it is more probable than not that, at final hearing, she will succeed. It is sufficient that Ms Evans show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. The High Court has emphasised that there is no inflexible rule as to the extent to which the legal merits of a case must be examined before determining whether to make an interim order: Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [18]. It depends on the nature of the dispute.

The Respondent’s Position

19. The respondents oppose the proposed interim orders, including on the ground that the applicant has not established a prima facie case in that the imposition of a ban or the requirement to leave is not indirect discrimination, and therefore, the claim is likely to fail.

19. I do not agree with this submission. The respondent’s submission concerning the existence or otherwise of a prima facie case misinterprets Ms Evans’ points of claim and the relief she seeks. The second written ban, which the respondents say is the only ban of any relevance, expressly provides that Ms Evans repeated failure to comply with the earlier ban. That repeated failure appears to include, in part, that Ms Evans:

“continued to enter GSW with your unregistered dog after repeatedly being advised by management and security that you were not to do so because your dog was not registered.”

Consideration

21. Assessment of a prima facie case is whether, if proven, the allegations made would give rise to the relief claimed.

22. I am satisfied that Ms Evans has established a prima facie case in respect of each of the three claims she has made. Without making any comment which might be construed as pre-determining the ultimate questions in a matter which is likely to be vigorously contested, I have had regard to the following in concluding that Ms Evans has established a prima facie case:

1. Ms Evans filed points of claim; and

2. The evidence she has filed to date concerning her disability; and

3. The undisputed fact that she was required to leave the Grafton Shoppingworld on the basis of the application of an assistance animal policy which was not consistent with the legislative definitions; and

4. The email from Mr Wilson evincing his intention to exclude Ms Evans from the shopping centre before the confrontational incidents which occurred on 9 and 14 October 2020.

Balance of Convenience

23. In considering the balance of convenience in this case, Ms Evans needs to establish what damage or danger is sought to be averted by the interim relief sought.

The Applicant’s Case

24. Counsel for Ms Evans submitted that the balance of convenience weighed heavily in favour of granting interim relief because there was an urgent and compelling need to end the ongoing discrimination and victimisation she was suffering. The effect of that submission was that the continuation of the ban was causing further damage to Ms Evans.

25. Counsel for Ms Evans submits that her condition has worsened as a direct result of the continuing ban on entry to Grafton Shoppingworld and the associated legal proceedings. Supporting this submission is the letter of 17 March 2022 from Ms Evans’ treating psychiatrist, Dr Pearson, who reported that:

Following the Shopping World incident, Ms Evans’s […] symptoms were exacerbated profoundly. She had obtained an assistance dog with my medical support and had enlisted the dog for training as an assistance dog through My Dog Australia. The objection by Shopping World for her to be able to take the animal with her within the shopping centre to mitigate against [her] symptoms was extremely challenging for her on a variety of fronts, though when she attempted to deal with centre management regarding the issue, she experienced a response that was threatening and aggressive prompting a severe occurrence of [her symptoms].

At no stage during Ms Evans’s life, despite her extensive […] history, has she behaved in an aggressive or unreasonable way that has indited a concern for safety for the general public. …

… I add that she would not pose any danger to staff or customers at Shopping World if she were able to return with [her assistance animal]. …

26. Ms Evans sets out in her affidavit the harm she says she continues to suffer from being banned from attending Grafton Shoppingworld. The first harm is a practical one, she lives in a regional area where the number of shopping centres she can choose to attend is limited. According to her evidence, her location and disability make it difficult for her to shop elsewhere than Grafton Shoppingworld or use online shopping however, as a result of the ban, she must now travel up to Coffs Harbour to do her shopping. The second harm is psycho-social; previously, she attended Grafton Shoppingworld almost daily, and the ban has meant that she no longer has the kind of casual contact with friends and community, and this has intensified her sense and her sense of isolation has intensified.

27. Dr Fallah submitted that Ms Evans wishes to attend the First Respondent’s premises to purchase goods at the shops in the centre and perform some walking exercises accompanied by her assistance dog. The Tribunal was informed that Ms Evans’ also used the centre as a safe place to walk for exercise. The material submitted by Ms Evans’ treating doctor supported this history and requirement.

28. Ms Evans has no criminal history, and aside from the events which took place in October 2020, there is no record of any concerning conduct on her part. She has a working with children authorisation and has carers responsibility for her husband and others.

29. From closely viewing the video footage supplied by the respondents on this application, the Tribunal did not detect any moment when Ms Evans’s actions could have been considered to be threatening to the physical safety of staff. That is not to say, however, that the Tribunal accepts that Ms Evans’ actions in entering the centre management office and undertaking an act of self-harm did expose the first respondent’s employees to possible psychological injury, and the seriousness of that harm was recognised by both parties in the hearing of this application.

The Respondent’s case

30. The respondents rely on their filed points of defence, an affidavit of Mr Wilson which refers to several exhibits, an affidavit of the instructing solicitor that exhibits, among other things, the second ban notice and two medical reports obtained from Dr Mary-Ellen O’Hare, consultant psychiatrist dated 30 May and 9 September 2022 and a short affidavit of Marty Smith who is employed as the tenancy co-ordinator for the first respondent.

31. The respondents oppose the proposed interim orders on the grounds that:

1. As to the preservation or protection of rights – Ms Evans has no general right to attend Grafton Shoppingworld,

2. Having received the letters from Ms Evans’ treating psychiatrist Dr Pearson dated 24 June 2021 and 17 March 2022, the respondents remained unsatisfied that Ms Evans had provided them with expert medical evidence on whether she posed an unacceptable risk to the health and safety of the first respondent’s workers and the general public. This position is perhaps most clearly articulated in Mr Smith’s affidavit, where he states that one of six “crucial matters” in maintaining the ban against Ms Evans was the fact that:

“Mrs Evans will not consent to attending what McConaghy would consider to be fair and reasonable requests for an independent medical assessment to determine if it is safe for Mrs Evans to access the Centre and if so what accommodations may be needed to ensure that Mrs Evans does not expose others to risk by attending the Centre.”

3. In the alternative, on the balance of convenience,

1. Ms Evans is easily triggered and suffers from dysregulation and therefore it seems likely that she may be triggered by seeing Mr Wilson and could then act in a manner dangerous to the staff and visitors to Grafton Shoppingworld, and

2. The making of the interim orders would impose an arrangement on the respondents that compromises their ability to provide a safe working environment for staff at Grafton Shoppingworld and indeed would place the respondents in direct contravention of their obligations under the Work Health & Safety Act 2011 (NSW).

3. Damages, if awarded, would be sufficient to compensate Ms Evans for any harm.

32. The respondents contend that, on the basis of the expert evidence they have obtained, Ms Evans continues to present a risk of harm to the staff employed at the shopping centre. That evidence comes from the reports of Dr O’Hare, who opines that she does not believe there are any accommodations, including having Ms Evans’ assistance dog with her, that would mitigate the risk and that Ms Evans’ past behaviour, referring to a single incident of self-harm without reference to context, is the sole indicator of likely future conduct. Dr O’Hare considered the level of risk to be “medium” but did not stipulate what that level, in fact, meant. Dr O’Hare further opines that any interaction between Ms Evans and Mr Wilson will cause Ms Evans further distress.

33. The Tribunal’s reliance on Dr O’Hare’s reports is somewhat limited having regard to the following matters:

1. Firstly, Dr O’Hare states in her first report that “little medical evidence was available” concerning Ms Evans’ condition. This sentence of the report is directly copied from the letter of instruction prepared by the respondents’ solicitors. The recitation of facts in Dr O’Hare’s report is similarly a substantial copy of the facts set out in the letter of instruction. Dr O’Hare also states that “allegedly” Ms Evans has no criminal history and “allegedly” is cleared for working with children. With respect, there are no allegations in those statements. They are matters of fact that are either assumed to be true or should have been the subject of routine inquiry and confirmation. The use of the term “allegedly” in this context suggests a level of mistrust in the supportive facts pertaining to Ms Evans and suggests a lack of objectivity.

2. Dr O’Hare’s summary of the video footage of 9 October 2020 does not accurately describe the events that took place. It appears that Dr O’Hare was given a sub-standard copy of the footage which she describes the footage as “black and white, grainy” with no audio. The version of the footage provided to the Tribunal is in colour and is clear, though, as with Dr O’Hare’s version, there is no audio. In Dr O’Hare’s summary of the footage, she does not describe the dismissive hand signals which are clearly seen in the footage and which greeted Ms Evans on her entry into the office. Dr O’Hare states that Mr Wilson can be seen standing 1.5m from Ms Evans however, from a review of the footage, it is not possible to state with any precision the distance between Ms Evans and Mr Wilson because of the angle of the fixed camera from which the footage is taken. Dr O’Hare’s summary notes Ms Evans’ gesturing towards Mr Wilson – in fact, Dr O’Hare uses the word gesticulating on two occasions in describing Ms Evans’ gestures. Dr O’Hare records the manner of Mr Wilson’s gesturing in a more sympathetic and, unfortunately, inaccurate way. This causes the impression that Ms Evans is upset and out of control in contrast to Mr Wilson. In the Tribunal’s review of the footage, Mr Wilson can be clearly seen using his right hand in gestures each time Ms Evans places a document on the small table to her right near to him at about, he uses later both his hands in a semi-circular swopping action, he enumerates some points on his figures. While his gestures are difficult to interpret without sound, they appear to be dismissive of the material he is shown and the words being spoken by Ms Evans. The gesturing of both Mr Wilson and Ms Evans does not appear to be outside the bounds of normal interaction between two people. Later in the footage, Mr Wilson gestures to Ms Evans that she should leave and in response, she proceeds to sit down on a chair, seemingly in protest. Dr O’Hare does accurately describe the fact that once he is joined by a security guard, Mr Wilson stands by the door – effectively ensuring that Ms Evans has no exit even if she had chosen at that point to leave. Dr O’Hare also describes interactions at a level of detail which are not supported in the footage, she refers to Mr Wilson “deferring” to the security guard and to police “pleading” with Ms Evans. None of these actions is capable of being detected from video footage from a fixed camera pointing downwards from a point in the ceiling with no sound.

3. Dr O’Hare repeatedly states in her review of the footage available to her that Ms Evans does not appear dysregulated, yet she also states, in referring to the self-harm incident, that the best predictor of future behaviour is past behaviour. It was not clear from Dr O’Hare’s reports that her analysis of past conduct by Ms Evans includes the fact that both prior to 9 October 2020 and ever since, Ms Evans has not attended a shopping centre where she has self-harmed or engaged in any other conduct for that matter which could be considered to be harmful to others. The fact that a single incident occurred in the immediate context of the humiliating and disrespectful treatment she had received from Mr Wilson and the other staff of Grafton Shoppingworld is not considered by Dr O’Hare, presumably because of the manner in which the facts of the incidents were not provided to her. Had the context of Ms Evans’ interactions with Mr Wilson and the other staff of the first respondent in the days and hours leading up to the moments recorded on the video footage, and to her personal history, Dr O’Hare may have reached a different conclusion. Beyond the fact of that incident and the inherent instability of her condition, there appears to be no other reasoning applied by Dr O’Hare to arrive at the conclusion that there was a medium risk for which no accommodations could be applied, such as to mitigate that risk.

4. Dr O’Hare states in her second report that Ms Evans’ intention to self-harm was “only averted by the actions of staff, ambulance and police in a way which was most distressing to all”. This is incorrect. The act of self-harm occurred shortly after Ms Evans was refused first-aid assistance at the coffee shop. The Tribunal does not infer that an act of self-harm could have been averted at that stage, there is no evidence to make such a finding. What is clear, however, is that Ms Evans had applied the knife to her wrist in the first seconds of the footage taken on 14 October 2020 and the reported actions of Ms Davies and Ms Coulson, and the other employees could not be said to be actions that averted self-harm. If anything, it appears that the reaction of the employees and police merely escalated the distress of Ms Evans, and she was further injured by having capsicum spray applied to her face within minutes of police arriving at the scene.

34. Further, in her second report, Dr O’Hare:

1. States that the first respondent “cannot be assured that Ms Evans will not present as a future risk to staff and customers” because of her medical condition and the unpredictable nature of the behaviour that condition produces.

2. Opines, in part, that the use of an assistance animal would not totally eliminate the effects and triggers suffered by Ms Evans; such an animal could potentially diminish the effects of her condition to some extent. Dr O’Hare opines that while the use of a service dog to assist a person with the conditions suffered by Ms Evans is not recognised in professional guidelines as a requirement of treatment, it is nonetheless “appropriate and desirable in certain treatment plans, as it is for Ms Evans.”

3. Provides an opinion that the use of an assistance animal “would not totally alleviate the effects of Ms Evans’ mental health condition in relation to her triggers when attending Grafton Shoppingworld.” Dr O’Hare concludes that an assistance animal had the potential to diminish the effects of Ms Evans’ condition to some extent, but this would be insufficient to “provide assurance or guarantee” that she would not suffer from the effects of that condition in the face of unpredictable triggers at Grafton Shoppingworld nor could this predict the extent to which any reduction might occur.

35. At the hearing of the interim application, the respondents properly conceded that the medical evidence available to the Tribunal suggested that it would be therapeutic to Ms Evans to be allowed to return to the Centre.

36. As noted above, a person who attempts to harm themselves is a threat to the safety and well-being of those who are witnessing such conduct. However, the evidence relied upon by the respondents does not assist the Tribunal in determining whether there are any other less significant restrictions or conditions on Ms Evans which could ameliorate, reduce or otherwise manage that risk. It is not reasonable to say that the only appropriate recourse the respondents have to deal with a person such as Ms Evans is a total ban on her attendance. It seems unlikely that an entity in the first respondent’s position or a person of Mr Wilson’s stated experience in managing shopping centres has no other skills or means of dealing with members of the public who have particular vulnerabilities, as is the case here.

37. Much of the respondents’ submissions were focused on the argument that, now a potential risk of harm has been identified, the first respondent may be liable to significant financial penalties under the Work Health and Safety Act and common law duties towards the general public and its workers. It was put that the first respondent would be exposed to multi-million dollar fines if ordered to allow Ms Evans to return to Grafton Shoppingworld.

38. That submission is rejected because the Work Health & Safety Act in fact requires a person in the position of the first respondent (and the second respondent as an officer of same) to ensure, so far as is reasonably practicable, the health and safety of workers on its premises; Work Health & Safety Act, s 19, s 27.

39. There was no evidence before the Tribunal of any attempt by the first respondent to provide its workers with specific training in dealing with people who have a disability of the kind experienced by Ms Evans, nor was there any evidence of support provided to manage or ameliorate risks. Simply banning a person from attending a centre after an incident of self-harm does not permit a conclusion that the respondents are simply meeting their obligations to their workers and customers. As counsel for Ms Evans submits, a shopping centre requires its employees to engage with a diverse and often challenging cross-section of the public and, as with many other workplaces where there is a public interface, work health and safety laws do not require that employers insulate staff from any member of the public with the kind of needs and behaviours such as those displayed by Ms Evans.

Consideration

40. I accept the evidence relied upon by Ms Evans from her treating psychiatrist that she poses no threat of physical harm to employees or workers at Grafton Shoppingworld. I accept, equally, that the respondents retain concerns about ensuring compliance with their obligations to keep their workers and customers safe and such concern has not been assuaged by the opinions of Dr O’Hare or Dr Pearson’s two letters of support.

41. The question then is two-fold:

1. what is reasonably practicable to ensure the health and safety of those workers and the customers of Grafton Shoppingworld and whether a total ban on Ms Evans is required to meet such duties; and as such,

2. where lies the balance of convenience in this case?

42. Having regard to the evidence presented on the application, I do not consider that a total ban on Ms Evans from attending Grafton Shoppingworld is required to meet the respondent’s obligations under the Work Health & Safety Act or any other statutory or common-law based regime.

43. It may be inferred from the reliance by the respondents on Dr O’Hare’s reports that they now accept that if Ms Evans is accompanied by her assistance animal, the risk of harm is somewhat reduced – but not eliminated. No proposal was put by either respondent as to any other measures, such as requiring Ms Evans to attend at particular times of the day, requiring her to telephone centre management ahead of her arrival, or requiring that she be accompanied by her assistance animal or another person when she attends the centre or, despite the fact that the first respondent operates several other shopping centres, having Mr Wilson tasked to carry out work at another site on an interim basis.

44. On the evidence before the Tribunal, I agree with Ms Evans’ counsel that the balance of convenience favours granting interim relief. The principal safeguard appears to be that Ms Evans must be accompanied at all times by her assistance animal. Given that was what she desired from the outset, it is unfortunate that this relatively trivial measure must be the subject of orders on an interim basis. The respondents have failed to demonstrate that the balance of convenience lies in their favour they have not demonstrated precisely how, with the presence of her assistance animal, Ms Evans poses a real threat that cannot be managed in a practical and compassionate manner. By contrast, I accept that Ms Evans continues to suffer harm associated with the ban imposed on her for the last two years and that, as she continues to age, the effects of such a ban will only amplify.

42. The Appeal Panel in Dhillon, when considering what the preservation of the status quo might mean in the context of an anti-discrimination claim, observed at [23] that in most cases, the status quo needs to be in existence when the application is made otherwise a change in the status quo would mean the alleged damage has already been done and is not reversible. That is not the case here since, it would seem, the damage may be reversible, and as the respondents conceded, it appears that it would be therapeutic for Ms Evans to be allowed to return to Grafton Shoppingworld.

Conclusion

46. In this case, Ms Evans has established a prima facie case on her substantive application for the reasons set out above. Shopping centres are an important part of life for many people, particularly the elderly and persons living in regional areas. Ms Evans written evidence supports the contention that Grafton Shoppingworld is a place of practical importance as well as meeting her social needs, and her exclusion from Grafton Shoppingworld, located as she is in a regional area of the State, is clearly a matter of inconvenience and hardship for her which, according to her treating physicians, is having a detrimental effect on her health and well-being.

47. The balance of convenience, in this case, favours Ms Evans, The respondents, in particular the first respondent, have opposed the application for interim relief on an “all or nothing” basis and have made no submission or presented any evidence that could ameliorate or practically deal with an outcome where the interim relief sought can be granted with any conditions. This is despite relying on the opinion of Dr O’Hare that the risk posed to the safety of customers and staff by Ms Evans if she is accompanied by her assistance dog is somewhat reduced.

48. In the circumstances, therefore, the Tribunal is unable to consider whether any conditions should be placed on the grant of interim relief.

Orders

49. Consequently, and to ensure the Tribunal may monitor the matter and any issues that may arise, I make the following orders:

1. Pending final determination in these proceedings, the first respondent is to permit the applicant to attend the premises known as Grafton Shoppingworld accompanied by her assistance dog.

2. Grant liberty to the parties on three days’ notice to have the matter re-listed for further directions.

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I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

23 December 2022 - 23 December 2022 - Paragraph 25: the word “fog” replaced with the word “dog” in the quoted material;

23 December 2022 - Paragraph 30: the word, “claim” replaced with, “defence”;

23 December 2022 - Paragraph 31(b): the first letter of the first word, capitalised;

23 December 2022 - Paragraph 32: capitalisation removed from the word, “respondents”;

23 December 2022 - Paragraph 36: “Respondent” removed and replace with, “respondents”;

23 December 2022 - Paragraph 37: “Respondent’s” (singular), replaced with, “respondents’” (plural).