Hewit v Dempsey

[2016] FCCA 904

FEDERAL CIRCUIT COURT OF AUSTRALIA

HEWIT v DEMPSEY & ANOR [2016] FCCA 904

Catchwords:

HUMAN RIGHTS – Application for interim injunction under s.46PP(1) of the Australian Human Rights Commission Act 1986 based on alleged contraventions of s.23 and s.24 of the Disability Discrimination Act 1992 – whether there is a prima facie case of discrimination – whether balance of convenience favours the granting of injunction – application refused.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), ss.46PO, 46PP(1)

Disability Discrimination Act 1992, ss.4(1), 5, 5(1), 5(2), 6, 6(1), 6(2), 23, 24

Harry Wood For Elsie Lynne Neilson v Andrew Mark Lee-Joe [2013] FCCA 1665
Purvis v State of New South Wales (2003) 217 CLR 92

Applicant: ALAN HEWIT

First Respondent: JENNIFER DEMPSEY

Second Respondent: MORAN AUSTRALIA (RESIDENTIAL AGED CARE) PTY LTD ABN 29 127 791 619

File Number: SYG 430 of 2016

Judgment of: Judge Manousaridis

Hearing date: 1 April 2016

Delivered at: Sydney

Delivered on: 20 April 2016

REPRESENTATION

Applicant appeared in person.

Counsel for the Respondent: Mr D Robertson

Solicitors for the Respondent: DCE Lawyers

ORDERS

1. The application seeking injunctions under s.46PP(1) of the Australian Human Rights Commission Act 1986 (Cth) is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 430 of 2016

ALAN HEWIT

Applicant

And

JENNIFER DEMPSEY

First Respondent

MORAN AUSTRALIA (RESIDENTIAL AGED CARE) PTY LTD ABN 29 127 791 619

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The second respondent (Moran) operates an aged care facility at Sylvania, Sydney (Facility). Mrs Paula Hewit, the mother of the applicant, Mr Hewit, is a resident of the Facility.

2. Mrs Hewit suffers from advanced Alzheimer’s disease, and manifests psychological symptoms, including agitation, wandering tendency, and some paranoia. She resides in a dementia unit within the Facility known as Perth House.

3. In March 2016 Mr Hewit lodged with the Australian Human Rights Commission (Commission) three complaints against Moran and Ms Dempsey, the operations director of the Facility. One complaint relates to Moran’s treatment of Mrs Hewit. In broad terms, Mr Hewit complains Moran has treated Mrs Hewit less favourably than it has treated residents who are not in Perth House (mainstream residents). The other two complaints relate to Moran’s treatment of Mr Hewit.

4. Mr Hewit now applies for interim injunctions under s.46PP(1) of the Australian Human Rights Commission Act 1986 (Cth) (Act) which provides:

   At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit Court may grant an interim injunction to maintain:

   (a)     the status quo, as it existed immediately before the complaint was lodged; or

   (b)     the rights of any complainant, respondent or affected person.

5. The interim injunctions Mr Hewit seeks are set out in an application in a case Mr Hewit filed on 29 March 2016. In that application, Mr Hewit seeks injunctions that Moran and Ms Dempsey or their employees:

   a)not prevent at any time or by any means Mr Hewit “and or his choice of motor vehicle” from having access to the Facility for the purpose of visiting or assisting Mrs Hewit at meal times, bedtime, or at any other times (permitted purposes);

   b)that “the parking within, access to/within/and egress from the property and building described hereto in Point 3a is provided and otherwise not obstructed to not less than the provisions of Section D1 and Section D3 of Volume 1 of the Building Code of Australia pertaining to Class 9c and Class 7 buildings being the relevant building classification for” the Facility;

   c)provide Mr Hewit with a security access card on a permanent basis that will enable Mr Hewit to access the Facility for the permitted purposes; and

   d)not require Mr Hewit to sign in and out when visiting the Facility for the permitted purposes.

6. These reasons are arranged as follows. First, I will briefly state the principles I must apply to determine Mr Hewit’s application. Second, I set out Mr Hewit’s complaints to the Commission. Third, I set out the elements of the various potential causes of action to which Mr Hewit’s complaints may give rise. Fourth, I consider, in relation to each complaint Mr Hewit made to the Commission, whether all or any part of the complaint gives rise to a prima facie case of discrimination under the DDA and, if so, whether, having regard to discretionary factors, I should grant the injunctions Mr Hewit seeks.

Principles

1. To be entitled to the interim injunctions he seeks, Mr Hewit must establish the following matters:[1]

   a)There is a serious question to be tried or Mr Hewit has a prima facie case, in the sense that, based on the matters alleged in his complaints, Moran and Ms Dempsey have engaged in unlawful discrimination against Mr Hewit or Mrs Hewit or both. In these reasons for judgment, I will use the expressions “prima facie case” and “serious question to be tried” interchangeably.

   b)If Mr Hewit and Mrs Hewit were ultimately to succeed in an application made under s.46PO of the Act, Mr Hewit and Mrs Hewit would suffer detriment if the interlocutory injunctions are not granted, and damages would not be an adequate remedy for such detriment.

   c)The balance of convenience favours the granting of the injunctions.

   d)The injunctions go no further than is required to ensure the Commission and this Court are in a position to effectively exercise their powers under the Act.

The complaints

[1] Harry Wood For Elsie Lynne Neilson v Andrew Mark Lee-Joe [2013] FCCA 1665 at [7]-[15]

Complaints in relation to Moran’s treatment of Mrs Hewit

1. The complaints in relation to Mrs Hewit are set out in a letter dated 14 April 2015 Mr Hewit sent to Moran.[2] These are as follows.

   [2] Exhibit 1, pages 6 and 12

   a)Residents in Perth House were not being provided with appropriate cutlery, while visitors and mainstream residents were provided with appropriate cutlery.

   b)The portion size of some meals for residents of Perth House has been reduced compared to the portion size of meals given to mainstream residents.

   c)Members of Moran’s staff have overridden choices of available meals made by residents, and relatives of residents in Perth House.

   d)Residents, and relatives of Perth House residents, are not afforded the opportunity to choose or pre-order meals, whereas mainstream residents are given that opportunity.

   e)The programmed activities for residents in Perth House are less extensive than those for mainstream residents, and programmes that are nominated as being the same for both Perth House and mainstream residents are not always provided to Perth House residents.

   f)The services and extent of facilities Moran provides to residents in the Sylvania Suites (which I assume are a subset of mainstream residents) are not similarly provided to the Perth House residents.

   g)Perth House residents are not provided with access to a PC connected to the internet in a common area that is otherwise provided to mainstream residents.

   h)Staff who administer medication in the Sylvania Suites are diverted from duties to residents in Perth House, rather than staff being diverted from other mainstream resident areas.

   i)A physiotherapist is provided for mainstream residents on Saturdays, but not for Perth House residents; when a physiotherapist scheduled to attend on mainstream residents does not attend, another physiotherapist is arranged to attend, but this does not occur in the case of Perth House residents; and when a physiotherapist takes Perth House residents to the activity or green room, the remaining Perth House residents are not provided with the services of a physiotherapist.

   j)The staff-to-resident ratio had recently been reduced at particular times for residents of Perth House, but with no corresponding reduction for some of the mainstream resident areas.

   k)Residents of Perth House have no access to a wheel chair accessible sanitary facility that complies with AS1428.1. They are not provided with access to a bath or spa in Perth House, whereas mainstream residents are provided with access to a bath or spa. Further, non-ambulant residents in Perth House are not provided with private use wheel chair accessible sanitary facilities that complies with AS1428.1.

2. In his complaint to the Commission, Mr Hewit claims Moran’s response contained in its letter dated 15 April 2015 contains numerous false and misleading statements.[3] Mr Hewit, however, makes additional claims. These are:

   a)Mrs Hewit was provided on a recurring basis with meals that contained food types that could cause Mrs Hewit an allergic reaction, or otherwise produce a chemical burning sensation. Moran treated other residents with food allergies by avoiding giving them ingredients to which they were allergic.[4]

   b)On a number of occasions, meals that had been ordered for Mrs Hewit were distributed by staff to visitors.[5]

   c)Mrs Hewit was not permitted to join outings because she has dementia.[6]

   d)Members of Moran’s staff refused to take Mrs Hewit to onsite entertainment events, whereas staff members assist mainstream residents to attend such events.[7]

   e)Members of Moran’s staff refused to provide Mrs Hewit with strawberry flavoured milk or a slice of bread with jam if she will not eat the meal Moran provides, whereas mainstream residents are provided with a selection of alcoholic and non-alcoholic beverages from which to choose.[8]

   f)The general manager of the Facility has informally advised Mr Hewit that staff have been directed not to respond to any requests from Mr Hewit to provide assistance to Mrs Hewit.[9]

   g)Moran and Ms Dempsey “have implemented the non provision of services to Mrs Paula Hewit and to other residents in Perth House based solely on their disability and inability to exercise their right to raise concerns about the way services are being provided and denied to them”.[10]

   [3] Exhibit 1, page 6

   [4] Exhibit 1, page 7, [4]

   [5] Exhibit 1, page 7, [5]

   [6] Exhibit 1, pages 7 and 8, [7], [8], [9]

   [7] Exhibit 1, page 8, [10]

   [8] Exhibit 1, page 8, [11]

   [9] Exhibit 1, page 8, [12]

   [10] Exhibit 1, page 8, [13]

Mr Hewit’s complaints

1. Mr Hewit makes two complaints. One relates to conditions Moran imposed on Mr Hewit regulating his access to the Facility.[11] The conditions are set out in a letter dated 11 May 2015 from Moran, and in a letter dated 3 June 2015 from Moran’s solicitor. [12] The letter dated 11 May 2015 states Mr Hewit’s access to the Facility is restricted to Monday to Friday between the hours of 9:30 am to 11:30 am and 2:00 pm to 4:00 pm, and is subject to conditions that include: Mr Hewit’s having to record his presence and complete the visitor sign in/sign out register; Mr Hewit’s raising concerns about the care of Mrs Hewit only with the registered nurse in charge or the director of nursing; Mr Hewit’s not commenting about staff and their performance of their duties; Mr Hewit’s not entering other houses or restricted areas, remaining only in the areas where his mother is; and Mr Hewit’s not parking in the underground car park with flammable items or insecure items on his vehicle. By its solicitor’s letter dated 3 June 2015 Moran informed Mr Hewit that Mr Hewit’s security card would be disabled, and that, to obtain access to the Facility, Mr Hewit must report to reception, and sign a record of his attendance and, when he leaves the premises, he must similarly attend reception, and sign a record of his departure.

   [11] Exhibit 1, page 20

   [12] Affidavit of D C English, annexures “DCE1”, “DCE2”

2. Mr Hewit further alleges that Moran imposed the conditions specified in Moran’s solicitor’s letter of 3 June 2015 because Mr Hewit photographed the number plates of vehicles in the Facility car park. Mr Hewit alleges this constituted discriminatory conduct against Mr Hewit because it required Mr Hewit to record by hand number plates, rather than by photograph, without taking into account a disability from which Mr Hewit claims he suffers. That disability, Mr Hewit alleged, made it painful and difficult to coordinate and write coherent letters and numbers, as compared with simply pushing a button to take a photograph. Although the complaint does not identify the disability, the claimed disability is Mr Hewit’s having restricted movement of his arms and hands. Mr Hewit also claims Moran’s imposing the condition that he report and sign in and sign out every time he visited and left the Facility was discriminatory because it made no allowances for Mr Hewit’s disability. Mr Hewit alleges that his disability makes it difficult to coordinate, and to hold and turn pages of paper, and causes pain when he writes due to the height at which the visitors register is located. Mr Hewit additionally claims that Moran imposed the conditions on him because of his disability.

3. In his second complaint to the Commission,[13] Mr Hewit complains about Moran having asserted to Mr Hewit that he agreed to raising issues concerning Mrs Hewit through a single point of contact. He also complains that, although Moran have assigned to him a point of contact – whom Moran described as a “lifestyle manager” – that person informed Mr Hewit that Moran had directed her not to respond to Mr Hewit’s enquiries. Mr Hewit alleges this constitutes discriminatory conduct, and that Moran engaged in that conduct because of Mr Hewit’s disability.

   [13] Exhibit 1, page 27

4. Mr Hewit raises additional complaints in his second complaint that overlap with the complaints he made in his other complaint to the Commission. Mr Hewit alleges Moran disabled Mr Hewit’s security pass, and imposed on him the other conditions of accessing the Facility, because of Mr Hewit’s disability.

Elements of potential causes of action for unlawful discrimination based on disability

1. The DDA prohibits discrimination on the ground of disability in the particular circumstances identified in the DDA. Potentially relevant to Mr Hewit’s complaints are s.23 and s.24 of the DDA. Paragraph (b) of s.23 of the DDA provides it is unlawful “for a person to discriminate against another person on the ground of the other person’s disability” in “the terms or conditions on which the first-mentioned person is prepared to allow the other person access to, or the use of, any such premises” (i.e. “premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not)”[14]). Section 24 of the DDA, on the other hand, provides:

   It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability:

   (a)     by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

   (b)     in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

   (c)      in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

   [14] See s. 24(3)(a) of the DDA

2. The expression “to discriminate against another person on the ground of the other person’s disability” is defined in s.5 and s.6 of the DDA. Those sections identify four circumstances in which, for the purposes of the DDA, a person discriminates against another person on the ground of the other person’s disability. The first set of circumstances are specified in s.5(1):

   For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

3. This is an example of what is often referred to as “direct discrimination”. The essence of this type of discrimination is that the discriminator treats a person with a disability less favourably than the discriminator would treat a person without the disability because of the other persons’ disability.  

4. Subsection 5(2) of the DDA, on the other hand, identifies circumstances where the discrimination consists, not in the discriminator treating the person with a disability less favourably than the discriminator would treat a person without a disability, but in the discriminator failing to make adjustments for the person with a disability and, as a consequence of the discriminator’s not making such adjustment, the aggrieved person’s being treated, because of his or her disability, less favourably than a person without the disability. Subsection 5(2) provides:

   For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:

   (a)     the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

   (b)     the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

5. Subsection 6(1) of the DDA specifies the third set of circumstances in which a person is taken to discriminate against another person because of that other person’s disability. Those circumstances are where the discriminator:

   a)requires, or proposes to require the aggrieved person to comply with a requirement or condition; and

   b)because of his or her disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition, and

   c)the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

6. The last set of circumstances to identify are those specified by s.6(2) of the DDA. Under s.6(2) of the DDA, the discriminator will discriminate against a person with a disability because that person has a disability if the discriminator:

   a)requires, or proposes to require the aggrieved person to comply with a requirement or condition; and

   b)because of his or her disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and

   c)the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.

7. Both definitions in s.5 of the DDA employ the concept of a person with a disability being “treated less favourably” than a person “without the disability” in “circumstances that are not materially different”. The determination of whether a person with a disability has been treated less favourably than a person without the disability would be treated in circumstances that are not materially different requires the construction of a “notional person” against whom the treatment of the aggrieved person can be compared.[15] Such notional person is often referred to as the “comparator”. How the appropriate comparator is to be constructed was one of the issues the High Court considered in Purvis v State of New South Wales.[16]

   [15] Purvis v State of New South Wales (2003) 217 CLR 92 at [114] (McHugh and Kirby JJ)

   [16] (2003) 217 CLR 92

1. To show, therefore, that the complaints, or any of the complaints Mr Hewit made to the Commission gives rise to a prima facie case of unlawful discrimination based on disability, Mr Hewit must show there is a prima facie case that:

   a)Mrs Hewit or Mr Hewit or both has or have a disability within the meaning of s.4(1) of the DDA;

   b)Moran or Ms Dempsey treated Mrs Hewit or Mr Hewit or both less favourably than it would have treated a person who did not have Mrs Hewit’s or Mr Hewit’s disabilities in circumstances not materially different, and Moran or Ms Dempsey treated Mrs Hewit or Mr Hewit less favourably because of their disabilities.

   c)Further, or in the alternative, Moran or Ms Dempsey failed to make reasonable adjustments for Mrs Hewit or Mr Hewit, the effect of which was that Mrs Hewit or Mr Hewit were treated less favourably because of their disabilities than persons without the disabilities would have been treated in circumstances not materially different.

   d)Further, or in the alternative, Moran or Ms Dempsey required Mrs Hewit or Mr Hewit to comply with a requirement or condition with which Mrs Hewit or Mr Hewit, because of their disabilities, cannot comply, and the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.

   e)Further, or in the alternative, Moran or Ms Dempsey required Mrs Hewit or Mr Hewit to comply with a requirement with which, because of their disabilities, Mrs Hewit or Mr Hewit could comply, only if Moran or Ms Dempsey made reasonable adjustments for Mrs Hewit or Mr Hewit, but Moran or Ms Dempsey has not done so, and this has, or is likely to have, the effect of disadvantaging persons with the disability.

Injunctions in relation to complaint made on behalf of Mrs Hewit

Prima facie case

1. I first consider whether, assuming the allegations contained in the complaint made on behalf of Mrs Hewit are true, they give rise to a prima facie case of unlawful discrimination. On that assumption, I am satisfied there is a prima face case that Mrs Hewit has a disability, namely, advanced Alzheimer’s disease. I am not satisfied, however, there is a prima facie case that the alleged acts on which Mr Hewit relies indicate Moran or Ms Dempsey has treated Mrs Hewit less favourably than it would have treated a person without the disability from which Mrs Hewit suffers. The difficulty is that the comparators on which Mr Hewit relies are the mainstream residents. I am not satisfied there is a prima facie case that mainstream residents are the appropriate comparators.

2. In any event, assuming the allegations of fact Mr Hewit makes in his complaint to the Commission are true and, on those facts, Moran did treat Mrs Hewit less favourably than it would have treated a person without the disability, there is no prima facie case that Moran or Ms Dempsey treated Mrs Hewit less favourably because Mrs Hewit has a disability. That is, there is no prima facie case that Moran treated Mrs Hewit less favourably for the reasons, or for reasons that included as a reason, Mrs Hewit’s having a disability.

3. I now turn from the allegations Mr Hewit made in the complaint to the Commission, to the evidence that is before me. There are three classes of evidence. One is an affidavit made by Mr Hewit on 29 March 2016 in which Mr Hewit deposes to instances of assistance Mr Hewit provided to Mrs Hewit, and observations concerning Moran’s staff’s care for Mrs Hewit. Thus, Mr Hewit deposes to: Mr Hewit on one occasion choosing a hot vegetarian main course option for Mrs Hewit which was not provided to Mrs Hewit; on one occasion a member of Moran’s staff providing a chocolate rabbit to Mrs Hewit and other residents of Perth House; Mr Hewit providing Mrs Hewit particular types of food at particular times; Mr Hewit observing that Mrs Hewit is not provided with three types of main courses which she can view before she makes a choice; Mr Hewit observing that when some other residents of Perth House did not like their meals, staff provided a different meal; Mr Hewit’s observing that Moran staff administered medication at a time and in a manner that was contrary to Mrs Hewit’s doctor’s prescription, causing distress to Mrs Hewit; Mr Hewit’s observing on one occasion that a person used force in an attempt to get Mrs Hewit to open her mouth and take her medication; and Mr Hewit observing staff removing and disposing of Mrs Hewit’s meals before she was able to finish her meal.

4. Three observations may be made about this affidavit. First, the matters with which it deals are not included in the complaint Mr Hewit made to the Commission on behalf of Mrs Hewit. Second, the matters to which Mr Hewit deposes, even if accepted as true, cannot by themselves raise a prima facie case that Moran treated Mrs Hewit less favourably than Moran would have treated persons without the disability in circumstances not materially different. Third, even if the matters did disclose a prima facie case of less favourable treatment, they do not give rise to a prima facie case that Moran treated Mrs Hewit less favourably for the reason, or for reasons that included as a reason Mrs Hewit’s having a disability.

5. The second class of evidence is the allegations Mr Hewit made in letters he sent to Moran. Those allegations, however, cannot reasonably be taken as evidence of the truth of what Mr Hewit alleges unless Moran has made some express or implied admission, either in what Moran said or failed to say, in its responses to the allegations Mr Hewit made in his letters. Mr Hewit has not pointed to any admission by Moran, or to any failure by Moran to address a particular allegation he made in any of his letters.

6. The third class of evidence is the reports the Aged Care Complaints Scheme (ACCS) prepared after conciliations it held in response to complaints Mr Hewit made to the ACCS. The evidence reveals that Mr Hewit made three complaints to the ACCS. The first was made on or about 23 March 2015.[17] The ACCS identified three issues, only one of which is included in the complaints Mr Hewit made to the Commission. That complaint is that Mrs Hewit continued to be provided with foods that adversely affect her heath. The ACCS’s report on the outcome of that complaint reveals events that spanned up to 19 May 2015 when, according to the ACCS report, Moran sent an email that confirmed a number of actions it had taken to address Mr Hewit’s concerns.[18] The ACCS made the following findings:

   I find the Service [i.e. Moran] has made reasonable attempts to address Mr Hewit’s concerns. I note that Mr Hewit is currently satisfied with the meal options available to his mother however is unable to monitor these meal options. I note the Service continues to address Mr Hewit’s concerns about his mother’s diet as soon as they are raised with the nominated approved provider representatives . . . I consider that the actions taken by the Service should ensure that food items Mrs Hewit is intolerant or allergic to will not be included in her diet.

   [17] Exhibit 1, page 108

   [18] Exhibit 1, page 117

7. Mr Hewit made the second complaint to the ACCS on or about 7 May 2015.[19] The ACCS identified seven issues, only three of which are included in the complaint to the Commission.[20] These are Mr Hewit’s concerns that Moran was not providing residents with adequate choice at each meal (issue 1), the reduction in meal size (issue 3), and Moran re-allocating staff from Perth House to work in other parts of Moran, resulting in a reduction of physiotherapy services and availability of a care staff member to administer medication when required (issue 6). The ACCS recorded that issues 1, 3, and 6 were resolved by Mr Hewit indicating he was satisfied with the actions Moran proposed to take in relation to those issues.

   [19] Exhibit 1, page 126

   [20] Exhibit 1, page 127

8. Mr Hewit made his third complaint on or about 20 November 2015.[21] The ACCS recorded five complaints, none of which is included in the complaint Mr Hewit made to the Commission. Further, one of the complaints is that Moran failed to implement a strategy Moran had previously agreed to implement in relation to one of the complaints Mr Hewit made in the first set of complaints to ACCS. That complaint is not the subject of the complaint to the Commission.

   [21] Exhibit 1, page 161

9. There are two observations that may be made about this evidence. First, it manifests a willingness by Moran during 2015 to address concerns Mr Hewit had raised with Moran, some of which are the subject of the complaints Mr Hewit made to the Commission. That prevents me from being satisfied there is a prima facie case that Moran treated Mrs Hewit less favourably for reasons that included as a reason Mrs Hewit having a disability.

10. Second, from the fact that Mr Hewit did not complain in his third complaint that Moran did not undertake the steps it had previously agreed to take to address previous complaints Mr Hewit made, the inference is available to be drawn that Mr Hewit was satisfied, at least at the time he made his third set of complaints to the ACCS, that Moran had done and continued to do that which Moran had previously agreed to do. The availability of that inference is an additional reason for not being satisfied there is a prima facie case that Moran has engaged in the unlawful discrimination alleged by Mr Hewit.

11. In my opinion, therefore, there is no prima facie case that Moran or Ms Dempsey engaged in unlawful discrimination against Mrs Hewit, contrary to the DDA.

Position of Mrs Hewit if confined to damages

1. If, contrary to what I have found, there is a prima facie case that Moran engaged in unlawful discrimination against Mrs Hewit contrary to the DDA, I would have found, on the evidence that is before me, that Mr Hewit will not suffer detriment if I were to refuse to grant the injunctions he seeks on the assumption that ultimately Mr Hewit will be awarded a remedy under s.46PO of the Act. Mr Hewit is currently permitted to attend the Facility four hours a day, five days a week. There is nothing to suggest that Mr Hewit’s being entitled to unlimited access to the Facility would enhance in any material way the advantages that accrued to Mrs Hewit as a result of Mr Hewit’s being permitted to visit the Facility during these hours and days. That includes assistance during meal times. I am not satisfied there is a prima facie case that Mrs Hewit would receive any materially greater assistance during meal times that is relevant to her well-being if Mr Hewit is present than she would receive if Mr Hewit is not present.

Balance of convenience

1. If, contrary to what I have found, there is a serious question to be tried that Moran engaged in unlawful discrimination contrary to the DDA, and the granting of the injunctions Mr Hewit seeks would eliminate or at least ameliorate the detriment Mrs Hewit would be suffering as a result of Moran’s engaging in the alleged discriminating conduct, I would find that the balance of convenience would favour my not granting the injunctions Mr Hewit seeks.

2. The fact that Moran has imposed conditions on Mr Hewit’s visiting the Facility indicates it has formed the view that it is in the interests of the Facility’s residents and staff to impose those conditions. The grounds on which it decided to impose those conditions are set out in Moran’s letter dated 11 May 2015 and in its solicitor’s letter dated 3 June 2015. There is no evidence to suggest that Moran does not believe that the matters on which it relied for imposing the conditions are true; and there is nothing to suggest that, assuming those matters are true, Moran acted unreasonably by imposing the conditions. In those circumstances, the balance of convenience favours allowing Moran to insist on Mr Hewit being permitted to visit the facility on the conditions Moran has imposed, rather than giving Mr Hewit an unrestricted right of entry to the Facility.

3. For these reasons, I do not propose to grant the injunctions Mr Hewit seeks in relation to the complaint Mr Hewit has made to the Commission on behalf of Mrs Hewit.

Injunctions in relation to complaints made by Mr Hewit

1. Given there is an overlap between the two complaints Mr Hewit made on his own behalf to the Commission, I will consider the claims he made in the two complaints together.

2. The conduct Mr Hewit alleges constituted discriminatory conduct was Moran’s imposing the conditions regulating his access to and egress from the Facility set out in Moran’s letter of 11 May 2015 and Moran’s solicitor’s letter dated 3 June 2015. One aspect of Mr Hewit’s complaints is that, in imposing the conditions, Moran failed to make reasonable adjustments for Mr Hewit, the effect of which is that, because of his disability, Mr Hewit is treated less favourably than a person without the disability would have been treated in circumstances not materially different.

3. The first question that arises is whether there is a prima facie case that Mr Hewit has a disability. There is in evidence medical reports that are relevant to that question. In particular, there is in evidence a number of certificates of functional capacity dated 27 March 2012 made pursuant to Schedule 1B of the Social Security Act 1991 (Cth). One relates to Mr Hewit’s upper limb function.[22] It gives ratings of 5 and 10 respectively for non dominate limbs and dominate limbs. Both ratings indicate that Mr Hewit demonstrates a “loss of strength, mobility, coordination, dexterity and/or sensation of” non dominant and dominant upper limbs respectively “which causes moderate interference with hand function or manual handling”.[23] Based on this evidence, I find there is a prima facie case that Mr Hewit has a disability.

   [22] Exhibit 1, pages 39-40

   [23] Emphasis in original

4. The second question is whether there is a prima facie case that, because of his disability Mr Hewit is unable to comply with the conditions Moran imposed, or he can comply with the conditions only if Moran makes reasonable adjustments for Mr Hewit.[24] In my opinion, the nature of Mr Hewit’s disability does not raise a prima facie case that Mr Hewit cannot, because of his disability, comply with the conditions. The certificate of functional capacity certifies that Mr Hewit’s disability causes moderate interference with hand function or manual handling. It is not reasonably arguable that the moderate interference with hand function would prevent Mr Hewit from signing his name or writing number plate details.

   [24] DDA, s.6

5. Thus, in my opinion, there is no prima facie case that, by imposing on Mr Hewit the conditions for entry, Moran or Ms Dempsey engaged in unlawful discrimination by imposing conditions Mr Hewit could not, because of his disability, meet or which, because of his disability, he could only meet if Moran or Ms Dempsey made reasonable adjustments for Mr Hewit. Even if, however, there was a prima facie case of discrimination on this basis, the injunctions Mr Hewit seeks are broader than what would reasonably be required to protect his rights. If Mr Hewit were to be entitled to an injunction, the injunction would need to be framed to specifically address the reasonable adjustments Mr Hewit claims Moran or Ms Dempsey failed to make in relation to Mr Hewit’s disability. One possible adjustment might be to restrain Moran or Ms Dempsey from requiring Mr Hewit to sign his name when he enters and exits the Facility, provided Moran or Ms Dempsey makes available an officer to record Mr Hewit’s entering and exiting the Facility, and Mr Hewit reporting to that officer every time Mr Hewit enters and exits the Facility.

6. The other aspect of Mr Hewit’s complaints to the Commission is Mr Hewit’s alleging that Moran imposed the conditions regulating his entry because of his disability. The evidence, however, does not give rise to a prima facie case that Moran imposed the conditions for the reason Mr Hewit suffers from a disability, or for reasons that included that reason. As I have already noted, Moran, in its letter of 11 May 2015, and in its solicitor’s letter dated 3 June 2015, sets out the reasons for which it imposed on Mr Hewit the conditions of entry to the Facility. These include Mr Hewit’s attempting to correct or direct staff in the care of residents, Mrs Hewit’s becoming distressed at meal times when Mr Hewit involved himself with her meal routines, Mr Hewit’s making derogatory statements about the skills and training of staff, Mr Hewit, without permission, entering parts of the Facility where Mrs Hewit does not reside, including in staff-only areas, Mr Hewit’s removal of a page from the visitor book at the reception area, and Mr Hewit’s photographing vehicle number plates in the visitor car park.

7. I do not make any finding that the matters on which Moran stated it relied in imposing the conditions occurred or did not occur. There is nothing to suggest, however, that Moran does not believe that the matters on which it relied did occur. In those circumstances, I cannot be satisfied there is a prima facie case that Moran imposed the conditions on Mr Hewit’s accessing the Facility for reasons other than those it gave in the letter to Mr Hewit. In other words, I cannot be satisfied there is a prima facie case that Moran imposed the conditions for the reasons, or for reasons that included as a reason that Mr Hewit has a disability.

8. If, contrary to my conclusions, Mr Hewit has a prima facie case of unlawful discrimination, Mr Hewit would be in a worse position if the injunctions he seeks are not granted compared with the position he would be in if the injunctions are granted, assuming Mr Hewit will succeed in obtaining final relief; and damages would not adequately compensate for the different position in which he would be in. The balance of convenience, however, favours my not granting the injunctions. If the injunctions are not granted, Mr Hewitt would still be able to have access to the Facility. If, on the other hand, the injunctions are granted, Moran will be compelled to abandon measures it has taken which there is no evidence to suggest it does not believe are necessary to protect the interests of the residents and staff of the Facility.

9. Mr Hewit also alleges that Mr Hewit’s point of contact, who held the position of “lifestyle manager”, informally advised Mr Hewit that she had been directed not to respond to any concerns Mr Hewit may raise about the care of Mrs Hewit.[25] Mr Hewit has not sworn an affidavit deposing to that conversation. In the absence of such evidence, I am not prepared to find there is a prima facie case that such conversation took place. My unwillingness to make any such finding is reinforced by the absence of any written complaint by Mr Hewit to Moran about having been so advised. There is in evidence a letter dated 19 February 2016 from Moran to Mr Hewit informing Mr Hewit of the identity of the person who will serve as Mr Hewit’s “single point of contact” in relation to Mr Hewit’s dealing with the Facility.[26] Moran’s letter also deals with other matters. Mr Hewit responded by letter dated 2 March 2016, but Mr Hewit’s response does not refer to Moran’s having nominated a single point of contact through which Mr Hewit may deal with the Facility. Nor does Mr Hewit mention the lifestyle manager or any other officer or employee of Moran having advised him that the lifestyle manager was directed not to respond to any concerns Mr Hewit may raise about the care of Mrs Hewit. Further, even if there was a prima facie case that the lifestyle manager was directed not to deal with Mr Hewit’s concerns, I am not satisfied there would be a prima facie case that the direction would have been made because Mr Hewit suffers from a disability.

   [25] Exhibit 1, page 29, [2]

   [26] Exhibit 1, page 186

10. Before I leave this part of my reasons, I should note that I have read Mr Hewit’s affidavit made on 29 March 2016 in which he deposes to his conversation on 28 March 2016 with the Facility’s general manger. The conversation relates to the general manager requesting Mr Hewit move his truck to the other side of the car park, away from the disabled car park. The apparent relevance of this conversation is to show that Mr Hewit has been treated differently. In my opinion, the affidavit does not disclose a prima facie case that Moran treated Mr Hewit less favourably than a person who does not have his disability in circumstances not materially different or, if there were any such prima facie case, that Moran treated Mr Hewit differently because he has a disability.

Conclusion and disposition

1. There is no prima facie case that, based on the allegations contained in the complaints Mr Hewit made to the Commission on behalf of Mrs Hewit and on behalf of himself, that Moran engaged in unlawful discrimination against Mrs Hewit or against Mr Hewit. Even if there were a prima facie case of unlawful discrimination, the balance of convenience would favour my not granting the injunctions Mr Hewit seeks.

2. I propose, therefore, to dismiss Mr Hewit’s application for injunctions.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 20 April 2016