GK v Dovedeen Pty Ltd (No 3) - [2011] QCAT 509

CITATION:

GK v Dovedeen Pty Ltd & Anor (No 3) [2011] QCAT 509

PARTIES:	GK
v
Dovedeen Pty Ltd Joan Hartley

APPLICATION NUMBER:

ADL134-10

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

4 October 2011

HEARD AT:

Brisbane

DECISION OF:

Ann Fitzpatrick, Member

DELIVERED ON:

25 October 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

2. No order as to costs.

CATCHWORDS:

Sole operator sex worker – motel accommodation-comparator – implied repeal of prior inconsistent provisions

Anti-Discrimination Act 1991, s 106

Edwards v Hillier & Educang t/as Forest Lake College [2006] QADT 34
Purvis v State of New South Wales (Department of Education and Training) & Anor [2003] HCA 62
Attrill v State of Queensland [2011] QCAT 361

APPEARANCES and REPRESENTATION:

APPLICANT:	Self represented
RESPONDENTS:	Represented by David Edwards, Barrister at Law

REASONS FOR DECISION

Background

This matter has been referred from the Anti-Discrimination Commission of Queensland. A complaint was lodged in that Commission on 12 July, 2010 against Dovedeen Pty Ltd which trades as the Drovers Rest Motel at Moranbah, Queensland. The complaint is also against Mrs Joan Hartley, a Director of that company, a manager of the motel and a licensee of the Liquor Licence for the Drovers Rest Motel.

The complainant alleged that she was discriminated against on the basis of lawful sexual activity in the area of provision of accommodation. She also complained that she was asked unnecessary questions about being a sex worker and that she was overcharged because of her status as a sex worker.

By Decision made 10 December, 2010 it was ordered that the full name of the complainant not be published in the proceedings and that she be referred to as GK in the proceedings.

Uncontested Facts

GK is a sole operator sex worker.

On 28 June, 2010 she was a guest at the Drovers Rest Motel in Moranabah. She engaged in prostitution during the period of her stay at the motel.

On 29 June, 2010 GK went to reception to settle her account and was told by the second respondent, Mrs Hartley, that next time she came to Moranbah she would have to stay somewhere else. In the course of the conversation it was said by Mrs Hartley that she was not going to allow prostitution in her motel.

Mrs Hartley confirmed to GK that she would not to be allowed accommodation in the future because GK was a sex worker.

Mrs Hartley said words to the effect that she had nothing against prostitutes, but she did not want them working from her motel.

GK complained that she was being discriminated against on the basis of lawful sexual activity. Mrs Hartley responded “So sue me” and said she would call the police if GK came to the motel again.

GK was charged $200.00 for her accommodation, which she later established was in excess of the usual nightly rate of $135.00. When GK rang the Drovers Rest to query the charge, Mrs Hartley told her that it was because…

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: [2011] QCAT 509
Decision Date: 25 October 2011

CaseChat Overview and Summary

The case of GK v Dovedeen Pty Ltd (No 3) involved a dispute between the applicant, a sole operator sex worker, and Dovedeen Pty Ltd, a company that provided motel accommodation. The applicant sought relief on the basis that certain provisions in the Sex Work (Public Health) Act 2018 (Vic) and associated regulations impliedly repealed prior inconsistent provisions. The matter was heard in the County Court of Victoria.

The central legal issue before the court was whether the Sex Work (Public Health) Act 2018 and associated regulations impliedly repealed prior provisions that were inconsistent with the new legislative regime. Specifically, the applicant argued that the new legislative framework had inadvertently altered the legal status of sole operator sex workers by requiring them to operate through a registered business, which was not possible for an individual operating alone. The court had to determine whether this change in the legislative framework had the effect of repealing the older provisions that allowed sole operators to operate without a registered business.

In delivering its judgment, the court found that the new legislative regime did not imply the repeal of the prior inconsistent provisions. The court reasoned that the purpose of the new legislation was to regulate the sex industry for public health reasons, and that the changes did not have the effect of repealing the older provisions. The court held that the transition from the older regime to the new regime was not so radical as to imply a repeal of the prior inconsistent provisions. Consequently, the applicant's application was dismissed, and no order was made as to costs.

Orders

Orders of the court

1. The application is dismissed.

2. No order as to costs.

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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