Ghostgum Developments Pty Ltd ATF Coomera Development Trust - [2015] QCAT 500

CITATION:

Ghostgum Developments Pty Ltd ATF Coomera Development Trust [2015] QCAT 500

PARTIES:	Ghostgum Developments Pty Ltd ATF Coomera Development Trust (Applicant)
APPLICATION NUMBER:	ADL052-15

MATTER TYPE:	Anti-discrimination matters
HEARING DATE:	23 December 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott, Member Gordon

DELIVERED ON:

23 December 2015

DELIVERED AT:

On the papers

ORDERS MADE:

The application for an exemption under the Anti-Discrimination Act 1991 is dismissed.

CATCHWORDS:

ANTI-DISCRIMINATION – exemption application – manufactured home park planned for construction – whether ownership should be restricted to those aged 50 and over – whether in the community interest – whether necessary to achieve the stated aims

Anti-Discrimination Act 1991 (Qld), s113

Re: Body Corporate for Village Green (Caloundra) No 1 CTS 22630 [2015] QCAT 101
Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21
Downer EDI Mining [2013] QCATA 276
South Australian Equal Opportunities Tribunal in BAE Systems Australia Ltd [2008] SAEOT 1
Re Caloundra Gardens Village Body Corporate Committee [2012] QCAT 98

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

The Applicant Ghostgum Developments Pty Ltd, has development approval to build the “River Park Lifestyle Village” at 29 Ghostgum Grove, Upper Coomera. When finished, this development will be 96 relocatable dwellings, governed by the Manufactured Homes (Residential Parks) Act 2003 (Qld).
The developer wishes to restrict ownership of the dwellings to those aged 50 and over.
Such a restriction would be actionable age discrimination under the Anti-Discrimination Act 1991 (Qld) (‘the Act’) unless an exemption from the relevant provisions of the Act is granted by the Tribunal under section 113 of the Act. In this application, the developer now applies for such an age exemption.
A consultation exercise was undertaken by advertising the application made to the Tribunal in the local press, and displaying a notice in the Upper Coomera Community Centre. The Anti-Discrimination Commission put a notice about the application on its website, and National Shelter was invited to make submissions on it.
In these types of applications the Act provides for submissions to be made to the Tribunal by the Anti-Discrimination Commission. The Commission has pointed out that adequate housing is a human right recognised in a number of international instruments to which Australia is a party. In this respect it has in mind those under the age of 50 whose right to housing would be affected if an age exemption were to be granted.
The Commission is of the view that an age exemption is not in the public interest in this particular case. It says that there is no evidence that in this case the community would benefit from quarantining older people, or people over a certain age, in their own community away from the general population.[1]
[1]Submissions of 15 October 2015 citing the words used in the QCAT decision Re: Body Corporate for Village Green (Caloundra) No…

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: [2015] QCAT 500
Decision Date: 23 December 2015

CaseChat Overview and Summary

The case of Ghostgum Developments Pty Ltd, acting through the Coomera Development Trust, sought an exemption from the Anti-Discrimination Act 1991, which prohibits discrimination on the basis of age. The company planned to construct a manufactured home park where ownership would be restricted to those aged 50 and over. The Federal Circuit and Family Court of Australia was tasked with determining whether this age restriction was in the community interest and necessary to achieve the stated aims of the park.

The legal issues before the court revolved around whether the exemption application met the criteria under the Anti-Discrimination Act 1991. Specifically, the court had to assess if the proposed age restriction was necessary to achieve the aims of the manufactured home park and if it was in the community's interest. The court also considered whether the exemption would unfairly disadvantage any group of people and if there were less discriminatory means to achieve the same objectives.

The court found that the age restriction imposed by Ghostgum Developments did not meet the criteria for an exemption under the Anti-Discrimination Act 1991. It determined that the proposed restriction was not necessary to achieve the stated aims of the park and that it would unfairly discriminate against individuals based on age. The court held that the exemption was not in the community interest, as it would potentially exclude a significant portion of the population from owning property in the park without a justifiable reason. Consequently, the application for an exemption was dismissed.

Orders

Orders of the court

The application for an exemption under the Anti-Discrimination Act 1991 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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