Haar v Maldon Nominees - [2000] FMCA 5

FEDERAL MAGISTRATES COURT OF AUSTRALIA

Kerryn Haar v Maldon Nominees Pty Ltd (t/as McDonalds) and Ors

[2000] FMC MZ071

UNLAWFUL DISCRIMINATION – DISABILITY – whether term and condition imposed on re-entry constitutes unlawful discrimination - Disability Discrimination Act 1992 (Cth) s 5 s 9 s23 and s 24 – Human Rights and Equal Opportunity Act 1986 (Cth) s 3 s 46 PO

Applicant:Kerryn Haar
First Respondent:  Maldon Nominees Pty Ltd (trading as McDonalds)
Second Respondent:  Christalla Demetrios
Third Respondent  Elizabeth Burnell
File No:MZ071/2000
Delivered on:  23^rd October 2000
Delivered at:  Melbourne
Hearing Dates:  26 and 27 September 2000
Judgment of:  McInnis FM
REPRESENTATION
Counsel for the Applicant:            Mr G Burns

Solicitors for the Applicant: Simon Parsons & Co.

Counsel for the Respondent: Mr A Clements
Solicitors for the Respondent: Ligeti Partners

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

MELBOURNE REGISTRY
No MZ071 of 2000
BETWEEN:
KERRYN HAAR

Applicant
And

MALDON NOMINEES PTY LTD (T/AS McDONALDS)

First Respondent
And

CHRISTALLA DEMETRIOS

Second Respondent

And

ELIZABETH BURNELL

Third Respondent
REASONS FOR JUDGMENT

Introduction

This is an application by Ms Kerryn Haar (the Applicant) pursuant to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) alleging unlawful discrimination.

The Applicant claims that the Third Respondent as agent and/or servant of the First Respondent unlawfully discriminated against the Applicant on 17 August 1997 in breach of the provisions of the Disability Discrimination Act 1992 (Cth) (DDA). The unlawful discrimination allegedly arose at a McDonalds restaurant at Leongatha in the State of Victoria (the McDonalds restaurant) then owned and/or operated by the First Respondent which was the employer of the Third Respondent. It is not alleged that the Applicant was refused entry to the McDonalds restaurant but rather that she was discriminated against on the ground that terms and conditions were imposed by the Respondents whereby the Applicant would be allowed access or use of the premises upon her return.

It is not in dispute that at all material times the Applicant was a person with a visual disability accompanied by a guide dog. In brief terms the Applicant’s allegation is that she was told by the Third Respondent that she should sit in a designated part of the McDonalds restaurant on her next visit.

As a consequence of the alleged unlawful discrimination the Applicant claims to have become upset and humiliated and further has suggested that she has been unable to return to the McDonalds restaurant as a customer since the date of the incident.

The original complaint by the Applicant had alleged that the incident occurred on Sunday 10 August 1997. This date was altered at the hearing to 17 August 1997 and no issue was taken by the Respondents in relation to the change of date.

The Evidence

The Applicant

The Applicant gave evidence that she was a 38 year old single woman living at home with her parents. She has had a visual impairment since birth and although she can see up close she cannot see…

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 Haar v Maldon Nominees

Details

AGLC: Haar v Maldon Nominees [2000] FMCA 5
Case: [2000] FMCA 5
Decision Date: 23 October 2000

CaseChat Overview and Summary

In this case, Kerryn Haar, a woman with a visual disability accompanied by a guide dog, filed an application against Maldon Nominees Pty Ltd (trading as McDonalds) and two of its employees, alleging unlawful discrimination. Haar claimed that on August 17, 1997, the respondents unlawfully discriminated against her by imposing terms and conditions for her re-entry into the McDonalds restaurant in Leongatha, Victoria. The case was heard by Federal Magistrate McInnis who found in favour of Haar, holding that the respondents had indeed breached the Disability Discrimination Act 1992 (Cth) by imposing unlawful terms and conditions for Haar's re-entry into the premises.

The court found that a conversation had taken place between Haar, her friends, and the third respondent, during which the third respondent suggested that Haar should sit outside near the tap with her guide dog just inside the doorway. The court held that this conversation constituted unlawful discrimination, as it was a term and condition imposed on Haar due to her disability. The court also found that the third respondent's employer, Maldon Nominees Pty Ltd, had not provided adequate training to its staff in dealing with persons with disabilities, which would have potentially prevented the incident from occurring.

As for relief, the court awarded Haar compensation in the sum of $3,000 for the injured feelings, distress, and embarrassment caused by the respondents' conduct. Formal orders will be made after submissions on the costs question have been received and determined.

Orders