Kelly v Netanya Noosa Pty Ltd
[2012] QCAT 439
•14 September 2012
| CITATION: | Kelly v Netanya Noosa Pty Ltd and Anor [2012] QCAT 439 |
| PARTIES: | Alan David Kelly (Applicant) |
| v | |
| Netanya Noosa Pty Ltd (Respondents) |
| APPLICATION NUMBER: | ADL097-11 / ADL118-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 11 May and 25 June 2012 |
| HEARD AT: | Southport and Brisbane |
| DECISION OF: | Dr Bridget Cullen, Member |
| DELIVERED ON: | 14 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | ADL097-11 ADL118-11 |
| CATCHWORDS: | ANTI-DISCRIMINATION MATTERS – visual impairment – guide dog – refusal of accommodation Anti-Discrimination Act 1991, s 85(1) Skinner v Sully [2011] QCAT 589 McNamara v Golonaise Pty Ltd & Janes [2006] QADT 7 |
APPEARANCES and REPRESENTATION (if any):
The parties were self represented.
REASONS FOR DECISION
Circumstances leading to complaints
This hearing deals with two separate complaints made by the Applicant, Mr Alan Kelly, which were heard together as the Tribunal considered this to be the best and most efficient approach. Both complaints centre around similar facts, and the Respondents (Netanya Noosa Pty Ltd and TriCare (Mermaid Beach) Pty Ltd were represented by the same individuals.
Mr Kelly is a visually impaired gentleman who uses a registered guide dog for assistance. Mr Kelly receives considerable care assistance from his wife, Mrs Judith Kelly, in their home.
In caring for her husband, Mrs Kelly assists with all aspects of Mr Kelly’s personal care, meal preparation, and mobility. If Mr Kelly wants to move from one location to another in their home, Mrs Kelly helps him. She also transports Mr Kelly to all of his external appointments. Providing full time care, even in the course of a familial relationship, can be physically draining and emotionally difficult. There are few opportunities for respite, and care givers must often sacrifice their own leisure time or employment opportunities in order to perform this role. And, for Mr Kelly, he is in a position where he has to deal with his own feelings about relying heavily upon his wife.
For these reasons, Mr and Mrs Kelly utilise the services of residential respite, so that Mrs Kelly has a break from her role as carer, and Mr Kelly can be supported by another carer for this brief period. Whilst this may provide a break for each of them from the roles of carer and care-recipient, it also creates a forced separation from each other as spouses. There are no easy answers to the complexities that persons in their situation face in getting on with everyday life.
Mr Kelly has been encouraged to seek respite care every 3-4 months. He accesses care providers by contacting the Commonwealth Respite and Carelink Centre (CRCC), which in turn contacts registered providers to ascertain what care options are available.
In relation to these matters, Mr Kelly telephoned the CRCC in March 2011 to seek respite care, for particular dates. The CRCC contacted both respondent care facilities on Mr Kelly’s behalf – TriCare (Mermaid Beach) and Netanya Noosa Pty Ltd.
Relevant Anti-Discrimination Law
The Anti-Discrimination Act 1991 makes it unlawful to refuse to rent accommodation to a person with an impairment who relies upon a guide dog. Relevantly, s 85(1) of the Act provides:
(1) A person must not discriminate by doing any of the following-
(a) refusing to rent accommodation to another person because the other person has an impairment and relies on a guide, hearing or assistance dog;
(b) requiring the other person to keep the dog elsewhere;
(c) requesting or requiring the other person to pay an extra charge because the dog lives at the accommodation.
(2)This section does not affect the liability of the person with the dog for any damage caused by the dog.
The legislation is clear in this respect. Where a person is refused accommodation on the basis of their reliance on a guide dog, this is unlawful discrimination.[1]
[1]See, for example, Skinner v Sully [2011] QCAT 589; and McNamara v Golonaise Pty Ltd & Janes [2006] QADT 7.
Complaint in relation to TriCare (Mermaid Beach)
Mr Kelly’s complains in relation to TriCare (Mermaid Beach) that he was refused accommodation, in circumstances where he was advised accommodation was available, on the grounds that there was no facility for toileting his guide dog, Cooper. Mr Kelly alleges that he was informed by Michelle Lavin of the CRCC that this was the reason supplied by TriCare (Mermaid Beach) for refusing his accommodation request.
On the initial date of the hearing of this matter in Southport, there was dispute between the parties in relation to this matter; specifically, whether any representative of TriCare (Mermaid Beach) made any statements that Cooper could not be accommodated, and therefore neither could Mr Kelly. I asked Mr Kelly why he had not called Ms Lavin, as her evidence, in circumstances where the parties presented polar opposite views about this issue, may assist me in forming a view. Mr Kelly indicated that he tried to obtain some evidence about these matters from Ms Lavin, but was told that she was unable to assist him.
As Ms Lavin’s evidence, if given in the manner that Mr Kelly had assumed it would be, would be of pivotal importance in establishing his complaints of discrimination, I considered it essential as a matter of fairness to Mr Kelly to adjourn the hearing and have the Tribunal issue a Notice to Attend so that Mr Kelly could put these matters to Ms Lavin on a subsequent and further hearing date. The parties agreed with this course of action.
Ms Lavin did, in fact, appear when the hearing was recommenced, but categorically denied having told Mr Kelly or his wife that the reason he was unable to obtain accommodation at TriCare (Mermaid Beach) was that the facility lacked any suitable areas to toilet his guide dog, Cooper. Self-evidently, Ms Lavin’s evidence in this regard did not assist Mr Kelly’s claim, as it was the primary evidence upon which his complaint was premised.
In regards to Ms Lavin’s evidence, I see no basis for believing that she was not fully frank with the Tribunal. Her evidence is consistent with the evidence of TriCare (Mermaid Beach)’s General Manager, Grant Clonan, who indicated that he had become aware that both the TriCare (Mermaid Beach) and Bayview facilities had been contacted by the CRCC to see if there was room for Mr Kelly. As Mr Clonan was aware that Mr Kelly had stayed at Bayview previously, he suggested that Mermaid Beach contact Bayview, and perhaps Mr Kelly, to find out how best to accommodate his guide dog, Cooper.
Having accepted Ms Lavin’s and Mr Clonan’s evidence in these respects, I am obliged to dismiss Mr Kelly’s complaint of discrimination against TriCare (Mermaid Beach).
Complaint in relation to Netanya Noosa
Mr Kelly gave evidence that he was informed by the CRCC that he been refused accommodation at the TriCare Pimpama Nursing Centre (Netanya Noosa Pty Ltd) for the reason that there was painting underway at the facility. Mr Clonan confirmed that there was painting underway at the facility in March 2011.
However, Mr Kelly complains that the day following the CRCC’s telephone call, his wife contacted the facility at Pimpama and was told by the staff that the true reason he was refused accommodation was because there was a small dog on the premises, and therefore his guide dog would not be allowed. I understood Mrs Kelly to also assert this, but at times it was not clear whether it was her, or Mr Kelly, who had the various conversations they gave evidence about. I formed the view that they spent so much time together, and had discussed their strong feelings of injustice about these matters to such an extent, that whatever transpired, it had, for Mr and Mrs Kelly, become one story over time.
On behalf of Netanya Noosa, Mr Clonan denied that anyone at the Pimpana facility spoke to Mrs Kelly regarding Mr Kelly’s accommodation. Mr Clonan conceded that one Netanya Noosa staff member, Rosemary Di Marti, had a conversation with the CRCC, and was asked whether there were any animals at the facility. In an affidavit sworn on 1 March 2012, Ms DiMarti says that she told the CRCC representative that Netanya Noosa had a staff member who owned a small dog that they occasionally brought onto the premises. Netanya Noosa denied that any staff member conveyed that they could not accommodate Mr Kelly because of his guide dog.
Ms Di Marti also indicated that shortly before Mrs Kelly confirmed a booking for Mr Kelly at Netanya Noosa, the room that was available became occupied as an emergency respite client had been admitted. The room was still available and on offer to the Kellys, however, not until the following week.
Mr Kelly sought to cross-examine Ms Di Marti at the hearing. Netanya Noosa had made efforts to contact her, as she had since left their employment, but without success. The Tribunal endeavoured to contact Ms Di Marti during the hearing, on her last known mobile phone contact details, but without success. As such, the Tribunal issued a Notice to Attend to Ms Di Marti, at her last known address, requiring her attendance on 25 June 2012. However, the Notice to Attend was returned to the Tribunal un-opened, and Ms Di Marti did not appear.
On balance, I find that Mr Kelly has been unable to establish that Netanya Noosa discriminated against him; ultimately, it was the intervention of the emergency respite patient that rendered that accommodation unavailable to Mr Kelly. As such, I am obliged to dismiss his complaint against Netanya Noosa.
ORDERS
ADL097-11
The complaint by Mr Kelly against Netanya Noosa Pty Ltd is dismissed.
ADL118-11
The complaint by Mr Kelly against TriCare (Mermaid Beach) Pty Ltd is dismissed.
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