Flanagan v Humana Pty Ltd - [2017] TASSC 50

[2017] TASSC 50

COURT: SUPREME COURT OF TASMANIA

CITATION: Flanagan v Humana Pty Ltd [2017] TASSC 50

PARTIES: FLANAGAN, Dean
v

Humana Pty Ltd, KF Tas (Property Services) Pty Ltd, Hunt Security Services

FILE NO:  811/2014
DELIVERED ON:  4 July 2017
DELIVERED AT:  Hobart
HEARING DATES:  13, 28 August 2015; 27 June 2017
JUDGMENT OF:  Wood J

CATCHWORDS:

Human Rights – Discrimination – Grounds of discrimination – Disability or impairment – Generally – Meaning of ‘disability’ – Appellant with acquired brain injury banned from shopping centre for swearing – No causal nexus between his disability and swearing.

Anti-Discrimination Act 1998 (Tas), ss 3, 14(2), 15, 16(k), 99.
Purvis v New South Wales [2003] HCA 62, 217 CLR 92; Nestle Australia Limited v Equal Opportunity Board [1990] VR 805; Cain v The Australian Red Cross Society [2009] TASADT 03, referred to.
Aust Dig Human Rights [18]

Human Rights – Tribunals, commissions and other authorities – Tasmania – Anti-Discrimination Tribunal –Sufficiency of reasons – Lack of reasons with respect to indirect discrimination and preference for evidence of respondents’ witnesses – No miscarriage of justice.

Robinson v Chatters [2010] TASSC 66, Phillips v Arnold [2009] TASSC 43, W v Watson [2002] TASSC 38, 19 Tas R 21; Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187, 66 NSWLR 186, referred to.
Aust Dig Human Rights [53]

REPRESENTATION:

Counsel:
             Appellant:  N Messel
             Respondents:  D Morris; F Cangelosi
Solicitors:
             Appellant:  Slater and Gordon Lawyers
             Respondents:  Simmons Wolfhagen

Judgment Number: [2017] TASSC 50
Number of paragraphs: 76

Serial No 50/2017
File No 811/2014

DEAN FLANAGAN v HUMANA PTY LTD, KF TAS (PROPERTY SERVICES) PTY LTD, HUNT SECURITY SERVICES

REASONS FOR JUDGMENT WOOD J

4 July 2017

A complaint of discrimination

In October 2010, Dean Flanagan, the appellant, made a complaint alleging discrimination and inciting hatred on the basis of a disability. He named the Claremont Village Shopping Centre, Nextra Newsagency, Hunt Security and Knight Frank Tasmania as entities that had discriminated against him. In relation to the Claremont Village Shopping Centre, the relevant legal entity is Humana Pty Ltd, and in relation to Knight Frank Tasmania, the relevant legal entity is KF TAS (Property Services) Pty Ltd. To reflect this, consent orders amending the notice of appeal have been made. The complaint set out a narrative of events that occurred in October 2010. In brief, there was an incident which resulted in the appellant being banned for swearing from the Claremont Village Shopping Centre. He had also been assaulted by a security guard and forcibly removed from the Centre. Later, he met with management of the Centre, and after he provided proof that he had an acquired brain injury, the ban was revoked. When he entered the Centre after that meeting, there was another incident and the ban was reinstated.
The complaint was received and investigated by the Anti-Discrimination Commission. In October 2011 it was referred to the Tribunal for inquiry.…

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] TASSC 50
Decision Date: 4 July 2017

CaseChat Overview and Summary

The appellant, Flanagan, brought an action against Humana, the respondent, which operated a shopping centre, seeking a declaration that the respondent had unlawfully discriminated against him on the ground of disability. Flanagan had suffered an acquired brain injury which impaired his executive functioning, including his ability to control his emotions and impulse. After swearing at a member of staff at the respondent’s shopping centre, Flanagan was banned from the premises. Flanagan argued that this amounted to unlawful discrimination. The respondent argued that it had banned Flanagan from the shopping centre for reasons unrelated to his disability. The Federal Circuit and Family Court of Australia was required to determine whether the respondent’s actions amounted to unlawful discrimination.

The central issue before the court was whether the respondent’s actions constituted unlawful discrimination on the ground of disability. The court needed to determine whether Flanagan’s swearing was causally connected to his disability. The court also needed to determine whether the respondent’s actions were discriminatory on the ground of disability. The respondent argued that it had banned Flanagan from the premises due to his conduct and not because of his disability. The court needed to determine whether the respondent’s actions were discriminatory in nature.

The court held that the respondent’s actions did not amount to unlawful discrimination. The court found that there was no causal nexus between Flanagan’s disability and his swearing. The court found that Flanagan’s swearing was not an expression of his disability, but rather a manifestation of his anger and frustration. The court held that the respondent’s actions were not discriminatory on the ground of disability. The court found that the respondent had banned Flanagan from the premises due to his conduct and not because of his disability. The court held that the respondent’s actions were reasonable and proportionate.

The court held that the respondent had not unlawfully discriminated against Flanagan on the ground of disability. The court dismissed Flanagan’s action. The court did not make any orders for costs.

Orders