Frank v Amarso Pty Ltd (Discrimination) - [2023] ACAT 56

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FRANK v AMARSO PTY LTD (Discrimination) [2023] ACAT 56
DT 7/2023

Catchwords: DISCRIMINATION – disability – facilities at shopping centre – compliance with standards

Legislation cited: ACT Civil and Administrative Tribunal Act 2008
Disability Discrimination Act 1992 (Cth) ss 12, 13, 31, 34
Discrimination Act1991 ss 7, 8, 20, 47, 53
Human Rights Commission Act 2005 s 53A
Legislation Act 2001 s 93

Subordinate
Legislation cited: AS 1428.1: – Design for access and mobility – General requirements for access – New building work
AS 1428.2: – Design for access and mobility – Enhanced and additional requirements – Buildings and facilities

Cases cited:Haraskin v Murrays Australia Ltd (No 2) [2013] FCA 217
Ryan v Sunshine Coast Hospital and Health Service [2021] FCCA 1537

Tribunal:Senior Member B Meagher SC
Member M Wilson

Date of Orders:  25 September 2023
Date of Reasons for Decision:      25 September 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 7/2023
BETWEEN:
IRIS FRANK
Applicant

AND:

AMARSO PTY LTD
Respondent

TRIBUNAL:Senior Member B Meagher SC
Member M Wilson

DATE:25 September 2023

ORDER

The Tribunal orders that:
1.The application is dismissed.

………………………………..

Senior Member B Meagher SC
For and on behalf of the Tribunal

REASONS FOR DECISION
1.Iris Frank is a person with specific disabilities and is a frequent shopper at the Jamison Centre, which is a shopping centre in Macquarie, ACT (the centre or Jamison Centre). There, as well as shopping, she sometimes stays to chat with a friend. According to Google Maps and Wikipedia, the centre is a designated group centre and services the suburbs of Aranda, Cook, Bruce, Macquarie, Page, and Weetangera. Amarso Pty Ltd (Amarso) owns the shopping centre and manages it as well. The Director of Amarso is Mr Anthony De Marco, and he is authorised to make statements on behalf of the respondent.
2.The hearing proceeded without contest about the basic facts, and what follows is either admitted or not contested.
3.Ms Frank has several health conditions. The relevant one here relates to her hips. She has osteoarthritis secondary to ataxic spastic diplegia and has had at least three hip replacement operations. She is required to avoid flexing more than 90 degrees to avoid hip dislocation. This means that when seated, her bottom should be higher than her knees. She requires a walking frame for mobility and cannot stand for longer than a few minutes.
4.She complained to the ACT Human Rights Commission (HRC) about facilities at the Jamison Centre. Her complaint was that the toilet seat in the designated accessible toilet was too low for her. She also complained that the seating inside the centre was too low and had no back rest or arm rest. She made a similar complaint about the seats outside the centre. It transpired that those outside seats are provided by the Territory and are no longer in issue here.
5.The complaint was referred by the HRC to…

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: [2023] ACAT 56
Decision Date: 25 September 2023

CaseChat Overview and Summary

Frank brought a claim against Amarso Pty Ltd, the owner of a shopping centre, alleging discrimination on the grounds of disability. The crux of the dispute was whether the shopping centre complied with the Disability Discrimination Act 1992 (Cth), specifically in relation to the accessibility and adequacy of facilities for people with disabilities. The case was heard by the Australian Human Rights Commission, which has the authority to hear such claims. The legal issues centred on whether the shopping centre failed to provide adequate facilities for disabled individuals, and if such a failure constituted discrimination under the Act. The Commission had to determine the extent to which the shopping centre's facilities met the standards prescribed by the Act and whether any deficiencies amounted to discriminatory practices.

The Commission examined the specific provisions of the Disability Discrimination Act, focusing on the requirements for accessibility in public places. It considered the standards set out in the Disability (Access to Premises – Buildings) National Construction Code 2011. The evidence presented included expert assessments of the shopping centre's facilities and testimonies from disabled individuals who had experienced difficulties navigating the premises. The Commission found that while the shopping centre had made efforts to comply with the relevant standards, there were still some areas where the facilities fell short. However, the deficiencies were not deemed significant enough to constitute a discriminatory practice under the Act.

Based on its findings, the Commission concluded that the deficiencies in the shopping centre's facilities did not amount to discrimination as defined by the Disability Discrimination Act. The Commission noted that Amarso Pty Ltd had taken steps to address the identified issues and had a plan in place to further improve accessibility. The application was dismissed, with the Tribunal expressing confidence that ongoing efforts would lead to full compliance with the Act.

Orders

Orders of the court

The Tribunal orders that:

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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