Jackson v Ocean Blue Queensland Pty Ltd & Ors - [2020] QCAT 23

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Jackson v Ocean Blue Queensland Pty Ltd & Ors [2020] QCAT 23

PARTIES: MARJORIE JACKSON

(applicant)

v

OCEAN BLUE QUEENSLAND PTY LTD

(first respondent)

MEDI-AID CENTRE FOUNDATION LTD

(second respondent)

APPLICATION NO/S:

ADL007-19

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

23 January 2020

HEARING DATES:
7 November 2019; 8 November 2019

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:
1. It is declared that Ocean Blue Queensland Pty Ltd is liable for a contravention of s 83 of the Anti-Discrimination Act 1991 (Qld).

2. It is declared that Medi-Aid Centre Foundation Ltd is liable for a contravention of s 83 of the Anti-Discrimination Act 1991 (Qld).

3.   Ocean Blue Queensland Pty Ltd and Medi-Aid Centre Foundation Ltd are jointly and severally liable to pay Marjorie Jackson the sum of $13,155.00 by 4:00pm on 14 February 2020.

4.   The parties must make submissions as to costs, if any, by 4:00pm on 14 February 2020.

5.   The parties must make submissions as to costs in reply, if any, by 4:00pm on 21 February 2020.

CATCHWORDS:
HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION – whether applicant had an impairment and relied on an assistance dog – where applicant evicted for having a dog in breach of “no pets” term in lease – whether complainant treated less favourably than other Medi-Aid tenants who did not rely on an assistance dog – whether “no pets” term constituted indirect discrimination - whether term imposed with which a higher proportion of people without applicant’s impairment comply or are able to comply being a requirement which is not reasonable having regard to the circumstances of the case and with which applicant not able to comply – whether contravention of ss 83 or 85 of the Anti-Discrimination Act 1991 (Qld)

Anti-Discrimination Act 1991 (Qld), s 6, s 7, s 8, s 9, s 10, s 11, s 83, s 84, s 205, s 209, Schedule

Guide, Hearing and Assistance Dogs Act 2009 (Qld), s 12A, Schedule 4

Catholic Education Office v Clarke [2004] FCAFC 197

Forest v Queensland Health, State of Queensland [2006] FCA 352
Hurst and Devlin v Education Queensland [2005] FCA 405
Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130
Qantas Airways Ltd v Christie (1998) 193 CLR 280
Queensland (Queensland Health) v Forest (2008) 168 FCR 532
Reurich v Club Jarvis Bay Ltd [2018] FCA 1220
State of Queensland v Mahommed [2007] QSC 18
Waters v Public Transport Corp (1991) 173 CLR 349

Woodforth v State of Queensland [2017] QCA 100

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented, assisted by Dr Christine Jeakings

Respondent:

G Rebetzke, of counsel instructed by Bell Legal Group

REASONS FOR DECISION

This matter concerns whether Marjorie Jackson was discriminated against because she had an impairment and relied on an assistance dog. In short, Marjorie alleges she was forced to leave her rental accommodation at Seacrest Apartments, Main Beach because the landlord, Medi-Aid, had a “no pets” policy. Whether Marjorie had an impairment…

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: [2020] QCAT 23
Decision Date: 23 January 2020

CaseChat Overview and Summary

Marjorie Jackson sought relief from the Queensland Civil and Administrative Tribunal (QCAT) against Ocean Blue Queensland Pty Ltd and Medi-Aid Centre Foundation Ltd, the latter being the body corporate responsible for the premises where she resided. Jackson, who suffers from a disability requiring the use of an assistance dog, alleged that she was discriminated against under the Anti-Discrimination Act 1991 (Qld) when she was evicted for having her assistance dog in contravention of a "no pets" clause in her lease. The dispute centred on whether the "no pets" term constituted indirect discrimination and whether the term was a requirement that was not reasonable, given Jackson's need for an assistance dog.

The central legal issues before the tribunal were whether Jackson had an impairment that relied on an assistance dog and whether the eviction constituted direct or indirect discrimination. The tribunal had to determine if the "no pets" term imposed a requirement with which a higher proportion of people without Jackson's impairment comply or are able to comply, and if such a requirement was not reasonable in the circumstances. The tribunal also needed to assess if the term contravened sections 83 or 85 of the Anti-Discrimination Act 1991 (Qld).

After examining the evidence, the tribunal found that Jackson had an impairment that necessitated the use of an assistance dog. The tribunal ruled that the eviction of Jackson for having her assistance dog amounted to indirect discrimination, as the "no pets" term imposed a requirement that Jackson could not comply with due to her disability, whereas a higher proportion of people without such an impairment could comply. The tribunal concluded that the "no pets" term was not reasonable in the circumstances and contravened section 83 of the Anti-Discrimination Act 1991 (Qld). Consequently, the tribunal declared both Ocean Blue Queensland Pty Ltd and Medi-Aid Centre Foundation Ltd liable for contravention of section 83 of the Act.

The tribunal ordered that Ocean Blue Queensland Pty Ltd and Medi-Aid Centre Foundation Ltd were jointly and severally liable to pay Jackson $13,155.00 by a specified date. The tribunal also required the parties to submit their views on costs by set dates. This decision underscored the importance of considering the needs of individuals with disabilities in the application of general rules and highlighted the potential discriminatory impact of seemingly neutral policies.

Orders

Orders of the court

1. It is declared that Ocean Blue Queensland Pty Ltd is liable for a contravention of s 83 of the Anti-Discrimination Act 1991 (Qld).

2. It is declared that Medi-Aid Centre Foundation Ltd is liable for a contravention of s 83 of the Anti-Discrimination Act 1991 (Qld).

3. Ocean Blue Queensland Pty Ltd and Medi-Aid Centre Foundation Ltd are jointly and severally liable to pay Marjorie Jackson the sum of $13,155.00 by 4:00pm on 14 February 2020.

4. The parties must make submissions as to costs, if any, by 4:00pm on 14 February 2020.

5. The parties must make submissions as to costs in reply, if any, by 4:00pm on 21 February 2020.

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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