GK v Dovedeen Pty Ltd - [2012] QCATA 128

CITATION:

GK v Dovedeen Pty Ltd and Anor [2012] QCATA 128

PARTIES:	GK
v
Dovedeen Pty Ltd Joan Hartley

APPLICATION NUMBER:

APL416-11

MATTER TYPE:

Appeals

HEARING DATE:

16 July 2012

HEARD AT:

Brisbane

DECISION OF:

PJ Roney SC, Presiding Member
Dr B Cullen, Member

DELIVERED ON:

31 July 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. That to the extent that any leave to appeal be necessary, such leave is granted;

2. That the appeal against the order dismissing the Application be allowed;

3. That in lieu of the previous order, that a finding be recorded in accordance with these reasons, namely that the Respondents’ conduct on 29 June 2010 was in contravention of sections 82 and 83 of the Anti-Discrimination Act 1991;

4. That the matter be remitted to the Tribunal for further hearing as to what relief, including any compensation or orders for apology ought be made;

5. That publication of any information which may lead to identification of the Appellant is prohibited.

CATCHWORDS:

Discrimination on the basis of lawful sexual activity – refusal of motel accommodation to a person providing prostitution services – legal sex worker – character of the protected attribute of a person engaging in lawful sexual activity – history of prostitution reform in Queensland

Words and phrases – “status as a lawfully employed sex worker” – meaning of expression to “conduct or permit to be conducted on the licensed premises, a business”

Whether provisions of the Anti-Discrimination Act impliedly repealed by the Liquor Act 1992, section 152

Anti-Discrimination Act 1991, ss 9, 10, 82. 83, 106
Liquor Act 1992, ss 3, 3A, 152

Discrimination Law Amendment Act 2002
Prostitution Act 1999
Equal Opportunity Act 2010 (Vic), ss 6-9
Anti-Discrimination Act 1998 (Tas), ss , , -

Goodwin v Phillips (1908) 7 CLR 1
Ferdinands v Commissioner for Public Employment (2006) 80 ALJR 555
Cassidy v Leader Associated Newspapers Pty Ltd [2002] VCAT 1656
Packer v RL & SJ Vagg Pty Ltd t/a Lismore Supermarket; Packer v State of Victoria (Department of Employment, Education and Training) (2002) EOC 93-192
Edgley v Federal Capital Press of Australia Pty Ltd (2001) EOC 93-142
Behan v Stephenson [2004] QADT 7 (31 March 2004)
Millen v Reynolds [2004] QADT 33 (25 October 2004)
M v A & U [2007] QADT 8
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92
Broad v Parish (1941) 64 CLR 588
Bond v Reynolds [1960] VR 601
Douglas-Brown v Commissioner of Police (1995) 13 WAR 441
Broadhurst v Larkin [1954] VLR 541

APPEARANCES and REPRESENTATION (if any):

APPELLANT:	GK represented by Mr R Reed of Counsel, instructed by Robert Downey Solicitors
RESPONDENT:	Dovedeen Pty Ltd and Ms Joan Hartley represented by Mr Edwards of Counsel, directly briefed

REASONS FOR DECISION

PRESIDING MEMBER PJ RONEY SC

Background

GK, the Appellant in this appeal, the original complainant, is a self-employed sex worker. She has complained that she has been discriminated against on the basis of…

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.

Continue reading GK v Dovedeen Pty Ltd

Details

AGLC: GK v Dovedeen Pty Ltd [2012] QCATA 128
Case: [2012] QCATA 128
Decision Date: 31 July 2012

CaseChat Overview and Summary

The appeal in GK v Dovedeen Pty Ltd concerned the refusal of motel accommodation to a person providing prostitution services. The appellant, a legal sex worker, was denied accommodation by the respondent, Dovedeen Pty Ltd, who operates a motel. The dispute reached the court after the appellant's complaint to the Anti-Discrimination Commission was dismissed by the Anti-Discrimination Tribunal. The legal issues revolved around whether the refusal of accommodation constituted discrimination on the basis of lawful sexual activity and if the respondent's actions violated the Anti-Discrimination Act 1991. Specifically, the court needed to determine whether the term "status as a lawfully employed sex worker" constitutes a protected attribute and if the refusal of accommodation could be considered a contravention of the Act.

The court found that the refusal of accommodation to the appellant was discriminatory and a breach of the Anti-Discrimination Act 1991. The court held that the appellant's lawful sexual activity, as a legal sex worker, constituted a protected attribute. The court reasoned that the history of prostitution reform in Queensland supported the view that lawful sexual activity should be protected against discrimination. Furthermore, the court interpreted the expression "conduct or permit to be conducted on the licensed premises, a business" to include activities related to lawful sexual work. Consequently, the court concluded that Dovedeen Pty Ltd's refusal to provide accommodation to the appellant constituted a contravention of sections 82 and 83 of the Act.

The court granted leave to appeal and allowed the appeal against the order dismissing the application. It remitted the matter to the Tribunal for further hearing to determine the appropriate relief, including any compensation or orders for apology. The court also issued a direction prohibiting the publication of any information that may lead to the identification of the appellant. This decision reinforces the protection of lawful sexual activity and sets a precedent for similar cases in Queensland.

Orders

Orders of the court

1. That to the extent that any leave to appeal be necessary, such leave is granted;

2. That the appeal against the order dismissing the Application be allowed;

4. That the matter be remitted to the Tribunal for further hearing as to what relief, including any compensation or orders for apology ought be made;

5. That publication of any information which may lead to identification of the Appellant is prohibited.

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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