King v Gosewisch
[2008] FMCA 1221
•29 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KING & ORS v GOSEWISCH & ORS | [2008] FMCA 1221 |
| HUMAN RIGHTS – Disability discrimination – indirect discrimination – harassment. |
| Disability Discrimination Act 1992, ss.3, 4, 6, 24, 39, 40, 122 |
| Clarke v Catholic Education Office (2003) 202 ALR 340 Rainsford v Victoria (2007) FCA 1059 Waters v Public Transport Corporation (1991) 173 CLR 349 |
| Applicant: | SHEILA KING & ORS |
| Respondent: | WILLIAM GOSEWISCH & ORS |
| File Number: | BRG 458 of 2006 |
| Judgment of: | Baumann FM |
| Hearing dates: | 13 & 14 August 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 29 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Shah |
| Solicitors for the Applicant: | Murphy Schmidt |
| Counsel for the Respondent: | Ms Anderson |
| Solicitors for the Respondent: | McDuff and Daniel Lawyers |
ORDERS
The Application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 458 of 2006
| SHEILA KING & ORS |
Applicant
And
| WILLIAM GOSEWISCH & ORS |
Respondent
REASONS FOR JUDGMENT
Introduction
The Burrum Chamber of Commerce published an open invitation to the community to “Meet the Council Candidates” on 17 October 2005. The meeting was to take place at the Burrum District Golf Club – in the relatively quite rural town of Howard.
As it turned out the events and meeting were anything but quiet. These reasons relate to that evening, and the claim made by the Applicants (who have a physical disability) that they were unlawfully the subject of discrimination and harassment. That claim is opposed by the Respondents who, at the time, were the office bearers of the Burrum Chamber of Commerce.
Evidence
The Court is aware it has been some time since the hearing and apologises for the delay. In such circumstances it is useful to record the evidence given by the various witnesses relied upon by the parties in more detail than might otherwise be necessary.
The circumstances surrounding the events in question, including leading up to the meeting and thereafter, coupled with the age of some of the parties all contributed in my view, to some parts of the evidence being expressed from a sincerely held perspective – but where conflicts on factual matters exist. Some are matters of importance in the disposition of this application and other facts are of less significance. I did not form a view, that any witness was dishonest or sought consciously to mislead the Court. As my reasons reveal, on some issues I prefer the evidence of one party over another.
Glenise Staff
Mrs Staff is a resident of the Hervey Bay area and says that for 35 years, her physical activities have been governed by severe physical impairments. She is as a result acutely aware of inaccessible built environments and has for some years been an advocate for people with disabilities.
She became aware of an open public invitation from the Burrum Chambers of Commerce to attend a “Meet the Council Candidates” meeting on Monday 17 October 2005 to be held at the Burrum District Golf Club Clubhouse. She had not attended that location previously. When she arrived at the meeting (accompanied by her husband Robert and a friend Sheila King), she was “astounded” to find that it was intended the meeting be held upstairs, which would require her to escalate 16 wooden steps. Mrs Staff says she arrived about 5-10 minutes before the scheduled start of the meeting.
On Exhibit 6, Mrs Staff marked where she says she remained (in her wheelchair) as persons, including candidates moved past her and walked up the stairs. One of the candidates offered Mrs Staff to carry her up. Understandably Mrs Staff rejected this offer. She says one of the candidates offered to come down and tell her what happened at the meeting, which was unacceptable to Mrs Staff. She became “very upset” and one candidate, Mr Kennedy, tried to comfort her.
Mrs Staff said after about 40 minutes (at about 7:40 p.m.) people came down the stairs with people carrying chairs downstairs. This took about five minutes, she says. During the period she was waiting downstairs, Mrs Staff advised one of the candidates that she “considered that having the meeting in an inappropriate venue was a matter of discrimination” and that she would be writing a letter to the paper and would seek legal advice.
Mrs Staff says, that whilst people were moving downstairs, she “was subjected to many sneering comments about the very fact I was there at all” and her decision not to be carried up the steps.
She alleges that when the meeting was convened downstairs a person she knows as Mr Gosewisch, acting as the Chair, remarked after apologising for the late start of the meeting that “these two ladies have hijacked the meeting” and motioned towards her, as she was sitting in the front. The room was crowded. She says both she and Mrs King were “his subjects of ridicule” and that the “audience followed his lead”, with “many people turning around staring, sneering and sniggering”. She says she felt uncomfortable.
Mrs Staff says she heard Mr Gosewisch use the “hijack” word twice. She asserts that “this undermining of us both continued into question time”, and when Mrs King asked a question she was heckled by a person in the audience.
When Mr Staff joined the meeting after it had started downstairs (and after the first “hijack” comment), he announced his digital recorder was missing. She denies her husband used “inappropriate language”, but he did speak loudly. She alleges Mr Gosewisch told her husband to “sit down, shut up or leave” and then when her husband said he was calling the police (which he did), Mrs Staff says Mr Gosewisch said “these people have hijacked the meeting long enough”.
Mrs Staff alleges Mr Gosewisch was not trying to control or calm the meeting. This witness acknowledged her attendance at the meeting was to enable her to hear and enquire of local candidates their views on public access issues. She strongly felt that to say the meeting was “hijacked” by she and Mrs King “was rude, arrogant and unreasonable”. She seeks an apology; damages for “humiliation in front of approximately 60 persons” and costs.
Sheila King
Mrs King is a retired person with a physical disability who has become an advocate for all people with a disability. She gave evidence of arranging to attend the “Meet the Council Candidates” meeting with Mr and Mrs Staff and was confronted with the same difficulty in accessing the upstairs area. This was the first occasion she had been at the Golf Club at Burrum Heads. Whilst sitting on a dustbin near the bottom of the stairs she says she was “astounded and upset – to the point of tears – with the fact that there were only stairs to the upstairs area”. She acknowledges she was “vocal about my anger.”
She had arrived at 6:55 p.m. for the 7:00 p.m. meeting and missed out on the pre-meeting socialising. She says that nasty comments were made to her and Mrs Staff by people coming down the stairs (with their chairs). In the meeting there were “no actual words, just sniggering”. She is unable to identify who made the remarks.
When she turned to ask a question, a person remarked what was her “hidden agenda” and who was she representing or acting for.
Mrs King was also seated at the front of the meeting when it started downstairs, and she recalls the remark made by the Chair, Mr Gosewisch, about the two ladies “hijacking” the meeting, and that he used the word a second time, although she was unclear about the context in which it was used the second time – perhaps when Mr Staff was told to sit down. She had no doubt the comment was directed to her and Mrs Staff.
Robert Staff
Mr Staff, the husband of Glenise Staff, says he arrived at the “Meet the Candidates” meeting approximately ten minutes before the advertised starting time of the meeting (7:00 p.m. – see Exhibit 9) to find the building was high set.
In his first affidavit filed 20 July 1996 Mr Staff said, in general terms:-
“My request to Mr Goeswisch (sic) to hold the meeting downstairs was flatly refused. At this point in time there was only one candidate present and about 25 other persons in attendance upstairs with Mr Goeswisch (sic) in the bar area. After many failed representations on our behalf by arriving candidates who also offered various unacceptable and ridiculous solutions and only after indicating that the matter may be put to HREOC, the meeting was moved downstairs…”
Under cross examination Mr Staff said:-
a)At the time I was upstairs, the people were socialising and nothing was set up for a meeting, with some person standing and some sitting “waiting for the formal part of the meeting”.
b)When he went upstairs he asked Mr Goseweich whether he could convene the meeting downstairs. He flatly refused saying “no.” Mr Staff denies Mr Gosewisch said he was “checking on it”.
c)The meeting did convene downstairs.
d)He could not recall if he mentioned anything to Mr Gosewisch about the disability issues but he “assumed” Mr Gosewisch was aware of it because he knows Mr Staff and knows Mrs Staff is in a wheelchair.
Although Mr Staff did not hear any persons make any “unpleasant” comments to his wife and Mrs King (who were downstairs at the time), he was aware his wife and Mrs King were quite upset.
After the meeting convened downstairs Mr Staff went upstairs again to get his wife some water. When he returned he noticed his recorder missing and “announced that my mini-disc recorder was missing”. He says Mr Gosewisch replied “in a terse voice”, whilst indicating to his wife and Mrs King “you people have hijacked this meeting, we are running late, so shut up and sit down or leave”.
Mr Staff replied that he was not going anywhere until the matter was “sorted out”, and he went upstairs to call the police. He then waited outside for the police to arrive and was not then in the meeting. He said (at paragraph 5) that “although having missed a lot of the meeting I did witness various jibes and comments directed at my wife and Mrs King by other attendees, which only added to our humiliation”.
The recorder was found in the bushes outside the meeting venue.
In response the Respondents filed affidavits and made themselves available for cross examination. The relevant parts of their evidence before the Court follow.
William Gosewisch
Mr Gosewisch was at the relevant time of the meeting in question, the President of the Burrum Chamber of Commerce (“BCOC”), which is a not for profit unincorporated association “established to serve the community” and had used the subject premises for its monthly meetings since 1998.
The BCOC has approximately 28 members who at the time subscribed to membership of $25 per year. He said that for meetings with an anticipated audience of 80 persons or less they used the Golf Club premises (the Club being a member of the BCOC). For larger attendances, the Burrum District Community Centre is used, if available at a cost. It is clear that most community meetings involved more than just members.
By about 6:55 p.m. approximately 60 residents, candidates and entourage had assembled upstairs. He says he stayed upstairs to welcome guests “and to control tempers and generally prevent hostilities and the type of comments such as ‘they are only agitators’ and ‘this is a set up’”.
Mr Gosewisch says he has no recollection of a discussion with Mr Staff and specifically denies flatly refusing to go downstairs or saying he was “checking into it”. However in his letter to HREOC (Exhibit 10) he says “a move downstairs was initially refused”. He does recall at around 7:10 p.m. someone came to him and said there was a “ruckus downstairs”.
After making an enquiry as to the availability of the Community Centre (but being unable to speak to the Manager), he decided to move the meeting downstairs. He said he did this:-
a)After speaking to the Manager of the Golf Club;
b)Without speaking to either Mrs Staff or Mrs King who were still, at that time, downstairs;
c)And directed persons present to take a chair downstairs;
d)Was not due to any threats “apparently made”;
e)He felt it was a “solution to what he understood was a difficulty with access”.
Importantly he says, although it is clear socialising was taking place upstairs, the meeting did not commence until it was convened downstairs.
Once the meeting commenced (at about 7:40 p.m.) Mr Gosewisch expressed some welcoming remarks. In paragraph 5 of his affidavit filed 10 August 2006 (similar but not exactly the same as paragraph 4 of his letter to HREOC), Mr Gosewisch says:-
“After settling down at 1940 hours, and in my role as chairperson and president I commenced my welcoming remarks. It was then that a gentleman stood up declaring his tape recorder had disappeared. I was not aware that anyone was taping the meeting as no person had sought permission. At this point I believed the meeting was getting out of hand and as chairperson it was up to me to put a stop to these constant disruptions. I stopped my address and stated to all persons at the meeting ‘this meeting has been hijacked long enough, please sit down or leave, it is late enough already’. The statement was directed at all person who had prior to that point in time made verbal comment to all present voicing their own opinion without first having addressed the meeting through the chairperson. At no stage did I address or point at the applicants as the remark was made to all persons present including the standing and complaining gentlemen whom I had never met before. I have several written statements from participants of the meeting verifying same.”
Not surprisingly, Counsel for the Applicants explored this paragraph at some length in cross examination, and Mr Gosewisch said:-
a)And denied he said the words to the effect “these two ladies have hijacked the meeting”.
b)Only used the word “hijacked” on one occasion, when responding to the remarks of Mr Staff that his tape recorder was missing.
c)The meeting was the subject of “constant disruptions” with people making comments around the room.
d)Comments about “hijacking” the meeting were directed to all attendees, but acknowledges that after his comments sniggers and gestures were directed to Mrs Staff and Mrs King.
e)Whilst he could not recall now how many questions were asked by Mrs King, at least one of her questions draw a response from the floor from George Adams, to the effect of “what is your agenda” – which he ruled out of order.
f)In re-examination, he recalled that when someone asked about going downstairs, he replied they couldn’t because downstairs was not suitable.
Allan Russell
Mr Russell was the Vice-President, and at the time acting Secretary of BCOC. At the time he was also an employee of Mr Gosewisch’s Real Estate Agency.
He recalls seeing the Applicants distressed before the meeting moved downstairs and says one of them said “they would call Channel 7”. It would have been “undignified and dangerous” for either of the ladies to be carried up the stairs he felt.
Mr Russell agrees he heard some attendees make some adverse remarks about the Applicants when they were upstairs and his recollection is that some were becoming “hostile” and a “number had left because of the delay”.
He heard Mr Gosewisch make a remark about “the delay of the meeting and it being hijacked” but regarded it as being made to the meeting generally. He says that Mr Gosewisch did not refer to “the ladies” at the start of the meeting.
Mr Russell maintained his impressions set out at paragraphs five, six and seven on his affidavit that:-
a)The meeting was hostile “at them due to their demeanour prior to the meeting and their attitude and interjections during the meeting”.
b)Mr Gosewisch endeavoured “to keep the meeting going and deal with all present in a fair evenhanded manner” and treated all persons at the meeting “with dignity and courtesy”.
Vonette Noble
Mrs Noble and her husband are members of BCOC and she attended the meeting as the honorary Treasurer. They arrived a few minutes late and although there seemed to be some sort of trouble (as voices were raised), Mrs Noble and her husband skirted around the downstairs group and went upstairs where “President Bill was upstairs speaking with and introducing people to the candidates, getting ready to start the meeting”.
People upstairs were becoming hostile “in as much as someone was taking up our space in Howard to ask questions”. She says a person whom she did not know spoke from the doorway and said:-
“It looks like we will all have to take our chairs downstairs and hold the meeting in the golf club locker room, as two women downstairs are threatening to take us all to the Anti-Discrimination Tirbunal for not having disability access to the meeting.”
When the meeting commenced downstairs, Mr Gosewisch called for quiet and said “lets get this meeting underway as it has been held up long enough”. Mrs Noble did not hear him make any comments directed to the Applicants.
She further deposed, that suddenly a man stood up and in a very loud voice said “someone has stolen my tape recorder”. She now knows the person to be Mr Staff. At paragraph 10 of her affidavit Mrs Noble records her recollection of the exchange between Mr Gosewisch and Mr Staff. She said, under cross examination, that she did not hear the word “hijack” used at all.
Her recollection was that more than one question was asked by one of the ladies relating to access issues in Hervey Bay, and that before the candidate could answer, someone from the crowd called out “why don’t you go to the Hervey Bay ‘Meet the Candidates’ meetings; we want to know what the candidates are going to do for us out here at Howard”. Her impressions were that Mrs King and Mrs Staff were “being generally disruptive” and they “kept putting up their hands to ask questions of the candidates”, after which Mrs Noble says she thinks she heard Mr Gosewisch say “I think you have had a fair go, give some others a go”.
It seemed clear to me that certainly Mrs Noble took the view that the meeting was for Howard residents and the Applicants could (and perhaps should) have attended meetings at Hervey Bay.
Russell Darcy
Mr Darcy, himself a disability pensioner, attended the meeting as a visitor as he was not a member of BCOC.
Before the meeting commenced downstairs, his impressions of the feeling of persons upstairs was not hostile or angry. He certainly felt the room downstairs was not adequate for the people at the meeting and was small and cramped.
Mr Gosewisch started the meeting and apologised for the delay. He saw some people had left. He did not hear Mr Gosewisch use the word “hijack” and said no comment was directed to the two ladies “who sat in a prominent position where they could face front on the candidates and the chairman”.
Mr Darcy was unable to recall any particular questions but heard some important comments like “let’s get this meeting going”.
George Adams
Mr Adams arrived at the Golf Club at about 7:15 p.m. and the area at the bottom of the stairs “was blocked by three individuals; two ladies one in a wheelchair, the other with a walking stick and a male, whom seemed to be having an altercation with a Chamber Member…”.
The ladies appeared to be upset and distressed, and he says he had to ask in a determined manner “as I might have done when in the military” whether they would move so that he could pass.
Some ten minutes or so later Mr Gosewisch apologise to those upstairs stating that the meeting would have to be relocated to the downstairs waiting room.
At paragraph 8 of his Affidavit Mr Adams refers to the remarks of Mr Staff which he said occurred “just as the meeting was about to start”, and using profanity in the use of the word “bastard” that someone had stolen his tape recorder.
Although he took no notes of the questions “because it was irrelevant to the Howard District”, he believes Mrs King asked more than one question.
Overall, in my view Mr Adams’ recall of events seemed less clear than the other witnesses, although I accept he probably made a comment about whether “the lady from out of town had her own agenda” and was ruled out of order by the chair Mr Gosewisch.
Yvonne Melverton
Mrs Melverton and her husband run a B & B in the area and their business is a member of BCOC.
She says that on the way upstairs, she was “accosted by a lady in a wheelchair, another old lady and a gentleman…asking ‘did we have anything to do with the organisation of the imminent meeting and were we going upstairs, as there was no point going up because we’d soon have to come back down as they were determined to have the meeting transferred to downstairs”. I accept this conversation took place.
Mrs Melverton says the people downstairs were very agitated.
When the meeting started downstairs Mr Gosewisch said “to the entire room full of guests, something about the meeting had been hijacked and we needed to get on with business and that we were running late”. Although Mrs Melverton said “at no time did he single out any individual person” but conceded the word “hijack” could have referred to the Applicants. She does not recall the word “hijack” being used twice but does recall there was a degree of “sniggering and sneering” during the meeting.
Findings of Fact on the Evidence
On the evidence as a whole I make the following factual findings:-
a)The public invitation for the meeting on 17 October 2005 was not just restricted to Howard residents or members of the BCOC. Anyone was entitled to attend.
b)It was not necessary for the Applicant’s to enquire about access issues or to ring ahead to advise of their difficulty in negotiating stairs.
c)The meeting did not start upstairs although introductions and socialising did take place upstairs.
d)It was not reasonable, to expect the female Applicants to escalate the stairs. They both became upset, angry and vocal. I find that they did make a remark indicating that they would write a letter to the paper complaining of the lack of access. I am not satisfied they mentioned “Channel 7”.
e)I am not satisfied Mr Gosewisch “flatly refused” to move the meeting downstairs although he did not immediately agree to do so. I find that he made enquiries about an alternate venue and discussed moving downstairs with the Golf Club Manager and then made a decision to move downstairs. I accept that some persons at the meeting were not happy to move downstairs.
f)When the meeting began downstairs at approximately 7:40 p.m. both female Applicants were seated at the front of the Audience in close proximity to the Chairman and assembled candidates. Some persons had left he meeting before it began.
g)In his introductory/welcoming remarks Mr Gosewisch used the work “hijack” but did not refer specifically to the Applicants by using the word “these two ladies”. I find however in apologising for the late start he made a comment which could reasonably be regarded as referring to the two female Applicants.
h)Shortly after those remarks when Mr Staff returned, Mr Staff in a loud voice and in an angry tone, told the audience his tape recorder was missing. It is not necessary to find what exact words he used, but it was clear he was not happy.
i)I am satisfied that Mr Gosewisch said, as he deposes at paragraph 5 of his Affidavit. This was the second time Mr Gosewisch used the “hijack” word, but its use in this exchange was, I find in a more generalised sense.
j)The meeting was disruptive with many interruptions and comments from the floor of the meeting, including Mrs King and Mrs Staff. It is likely, I find, that Mrs King asked more than one question and both she and Mrs Staff were anxious to ask more and were persistent.
k)I find that Mr Gosewisch used his best endeavours to control the meeting, but in the best traditions of Australian political type meetings, the conduct of the persons was challenging. Sniggering and sneering would have, I suspect taken place, but that Mr Gosewisch in very difficult circumstances did his best and was generally courteous in his management of the meeting.
Statutory Framework
It is important to record the object of the Disability Discrimination Act 1992 (DDA) in s3, which underpin the Acts purpose, namely:-
“ The objects of this Act are:
(a) to eliminate, as far as possible, discrimination against persons on the ground of disability in the areas of:
(i) work, accommodation, education, access to premises, clubs and sport; and
(ii) the provision of goods, facilities, services and land; and
(iii) existing laws; and
(iv) the administration of Commonwealth laws and programs; and
(b) to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community; and
(c) to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.”
The Applicants allege indirect disability discrimination, under s6 of the Act, which provides:-
For the purposes of this Act, a person ( discriminator ) discriminates against another person ( aggrieved person ) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply.”
In circumstances where the Applicants no longer rely upon s23 of the Act, relevantly s24 provides:-
“ (1) 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 or a disability of any of that other person’s associates:
(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.
(2) This section does not render it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.”
The definition of services (in s4) includes:
“(a) an office established by, or an appointment made under, a law of the Commonwealth; and
(b) an office established by, or an appointment made under, a law of a Territory; and
(c) an appointment made by the Governor‑General or a Minister otherwise than under a law of the Commonwealth or of a Territory; and
(d) an appointment as a director of an incorporated company that is a public authority of the Commonwealth;
but does not include:
(e) an office of member of the Assembly, member of the Executive, or Minister within the meaning of the Australian Capital Territory (Self‑Government) Act 1988 ; or
(f) an office of member of the Legislative Assembly, member of the Council or Minister of the Territory, within the meaning of the Northern Territory (Self‑Government) Act 1978;…”
An additional platform of the Applicants’ case was that hey had been harassed within the meaning of ss39 and 40, which provide:-
“39.It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to harass another person who:
(a) wants to acquire the goods or services or to make use of the facilities; and
(b) has a disability;
in relation to the disability.
40.It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to harass another person who:
(a) wants to acquire the goods or services or to make use of the facilities; and
(b) has an associate with a disability;
in relation to the disability.”
Furthermore, the Applicants rely on s122 of the Act, as follows:-
“122. A person who causes, instructs, induces, aids or permits another person to do an act that is unlawful under Division 1, 2 or 3 of Part 2 is, for the purposes of this Act, taken also to have done the act.”
It is admitted that Mrs King and Mrs Staff are disabled person as defined by s4 and that Mr Staff is an “associate” by definition.
Indirect Discrimination
The Applicants seek to establish that the Respondents indirectly discriminated against them on the ground of their disability. It is alleged the Respondents were:-
a)Providing services; and
b)Making facilities available.
Particulars of the claims under s24(1) are set out in the further amended points of claim. As earlier noted, the Applicants did not press the claims under s23 of the Act.
An initial issue arrises as to whether the Respondents were acting in their own capacity; on behalf of BCOC; or both. In my view the Respondents were acting at all times in their capacity as President, Secretary and Treasurer respectively of BCOC. It was BCOC which authorised the meeting to be called and publicised.
The issue of whether the Respondents were providing “services” as defined in s4 is not without doubt. At first blush, the organising of a meeting, even by a voluntary community organisation who’s object and duties include to:-
“discuss and deal with any subjects affecting the best interests of members and the community in its region” (object 3(a) of the Association Constitution – Exhibit 5)
does not neatly fit within the definition of:-
·“(b) services relating to entertainment, recreation or refreshment”;
·“(f) services of a kind provided by a government, a government authority or a local government body”.
The definition section might be read very liberally where the word “includes” is used – namely that the class of “services” is not restricted to those specifically defined.
The Applicant contends for a wide interpretation and, not surprisingly, the Respondents disagree. The judicial interpretation of “services” has been minimal. In Clarke v Catholic Education Office (2003) 202 ALR 340 although the complaint related to the terms and conditions of enrolment (under s22), an alternate claim alleging discrimination in the provision of education services contrary to s24(1)(b) was included and Madgwick J, in finding for the Applicant in that case, did not specify under which specific provision the discrimination was found to be unlawful. The Applicant referred me to the decision of Rainsford v Victoria (2007) FCA 1059 where the Court found, in seeking to determine whether a service was provided, that the touchstone of service should be whether the act involves a “helpful or beneficial activity” although most activities are helpful or beneficial to someone. Such a concept of service accords with the Macquarie Dictionary definition as:-
“1. An act or helpful activity. 2. the supplying or supplier of any activities, commodities, activities etc, required or demanded”.
I do not regard this case as the appropriate vehicle to determine conclusively, this point of interpretation. The general thrust to read discrimination legislation liberally (see Waters v Public Transport Corporation (1991) 173 CLR 349) is not a invitation to unreasonably expand an unclear definition applying in this case.
I shall assume, without formally deciding, that the organising of this public meeting by BCOC (through the Respondents) is a “service” for the purpose of the Act.
I find no merit in the argument of the Respondents that they can deny any responsibility for making available the facilities at the Burrum Golf Club simply because they have no ownership of those facilities. Although it seems they clearly had the consent of the “owner” or management of the Burrum Golf Club to hold their gatherings at the Clubhouse, the formal nature of their right or licence to do so is not the subject of evidence. They were not trespassers. They exercised some implied licence at least. I am satisfied, for the purposes of section 24 that the Respondents were making “facilities available”.
I find that the facilities made available “included the area or space within which the public meeting was or could take place”.
In respect of the particular points of claim specified at points 9,10 and 11 of the further amended points of claim, I make the following decisions on the facts as found by me.
Section 24(1)(a) – Refusing to provide the other person with those goods or services or to make those facilities available to the other person.
Mr Shah says that the relevant time at which to determine when the refusal occurred was 7:00 p.m. – namely the time of scheduled commencement of the meeting. I disagree.
The facts make it clear that, although it took some 40 minutes for the meeting to commence, when it did commence the Applicants were not in any manner refused access to the meeting or the downstairs area. I do not regard the fact that socialising took place upstairs before the meeting denied the Applicants the full access to the meeting. On the evidence, at least, they met most of the candidates on the way up and certainly it seems nearly everyone including candidates and other members of the public when they came down with their chairs, before the meeting commenced.
I do not regard Mr Gosewisch’s enquiries as to other venues and then his ultimate decision to commence the meeting downstairs as other than reasonable. Clearly, had he as Chairman, decided to run the meeting upstairs that would make the Applicants’ case much stronger. But he did not do that.
It does not seem particularly relevant whether or not his decision was influenced (if at all) by the remarks made by Mrs Staff about writing to the paper. He made the proper decision, in circumstances where it seems a number of person who were becoming angry upstairs, I infer, disagreed. He directed that the meeting be held in a somewhat smaller area, but nonetheless still capable of allowing the meeting to be conducted.
I find no violation of s24(1)(a).
Section 24(1)(b) – imposing terms and conditions on which the Respondents provided the Applicants with those goods or services or makes those facilities available to the other person.
The contentions relied upon assert those terms and conditions to be:-
a)Having to ascend the stairs;
b)Having to be carried up the stairs;
c)Making the Applicants wait 40 minutes and negotiate to attend the meeting;
d)Requiring the Applicants to give prior notice they had a disability and would be attending.
The Applicants were not required to ascend the stairs to attend the meeting which was convened downstairs. I am satisfied that the nature of their disability would have made that impossible and being “carried up” would have been unfair, undignified and possibly dangerous.
However the Respondents never suggested they do either. Certainly it seems some other attendees thought that should occur. They were wrong. If they were the ones providing the service or making the facilities available, that might have made the Applicants’ case stronger. There is no evidence that satisfies me that the Respondents either suggested or imposed such a term or condition or authorised a person on their behalf to do so.
Waiting for the meeting to start, which was the advertised function, was a delay everyone attending (including the candidates) had to endure. The delay is explainable by Mr Gosewisch’s need to consider where the meeting could be properly held. The Applicants, in having to wait were not treated differently on the grounds of their disability than anyone else at the venue for the meeting that night.
No violation of s24(1)(b) occurred.
Section 24(1)(c) – in the manner in which the Respondents provided the Applicants with those goods or services or makes those facilities available.
There is some degree of overlap with matters dealt with above. Because I have found that the time at which the services are provided is at the time the meeting begins, there is no merit in the submission at point 12. For completeness, I should say that of course, the Applicants were entitled to attend this public meeting even though they were not members of BCOC or residents, it seems, of Howard. The comments by some, including Mrs Noble in her evidence, that the meeting was for Howard residents and the Applicants should have attended Hervey Bay meetings is simply a nonsense. I am not required to decide whether Hervey Bay meetings occurred. There was nothing preventing residents from any part of the City of Hervey Bay attending public meetings to “Meet the Candidates”.
Furthermore, I agree that it would be unreasonable for the Applicants to be required to ring before hand. They were not required by the Respondents to do so. If they had, it may have meant the decision as to where or the premises in which the meeting could be held might have been made earlier, but the Applicant’s certainly had not obligation to do so, and the Respondents did not ask them to do so.
There is no violation of s24(1)(c).
Conclusion on Indirect Discrimination
It follows from my analysis that I have decided on the evidence that the Respondents did not unlawfully discriminate against the Applicants, or either of them, on the ground of a disability. The Application in that respect shall be dismissed.
Harassment
It has recently been noted that:-
“The relationship between harassment and discrimination is yet to have received much judicial consideration. There is certainly considerable overlap between these two concepts, given that harassment of a person with a disability in relation to that disability will typically also constitute less favourable treatment because of that disability for the purposes of establishing direct discrimination. Indeed, the sub-heading of Division 3 of Part 2 is entitled ‘Discrimination involving harassment’; which suggests that harassment is to be regarded as a discrete kind of discrimination, albeit with separate statutory force”
(See Federal Discrimination Law 2008 – HREOC at page 215).
Harassment or harass is not defined. However it is clear under s39 and s40 that the harassment is “in relation to the disability”.
In the points of claim relied upon the Applicants assert that:-
“1.The first respondent in not initially allowing the meeting to be held on the lower level of the Club thereby caused, induced, aided or permitted other person who were descending the stairs to the lower level to harass or humiliate the applicants’ with statements such as:-
- ‘why don’t you two get a life’
- ‘its not our fault you’re disabled – you should learn to live with it’
2. During the meeting being harassed by the first respondent and the first respondent causing, inducing, aiding or permitting other person present at the meeting so harass the applicants.”
In so contending, the Applicants’ rely on s122 of the DDA to also submit that the Respondents should be taken “also to have done the act”.
Before dealing with this complaint, nothing I say in these reasons should be construed as any lack of empathy for the disabilities which the Applicants Mrs Staff and Mrs King must carry every day. It is a sad reflection that a degree of both intolerance and misunderstanding in respect of persons with disabilities, bordering at times on absolute prejudice, still exist in contemporary Australian society. While that regrettably remains the case, advocates with a strong determination to change both attitude and our built environment have a deserved place in our community. Mrs Staff and Mrs King are two such persons.
However, on the evidence I am not satisfied that the Respondents or either of them incited the hurtful and inappropriate remarks that a small minority of members of the public directed to the Applicants who remained, in an upset state, at the bottom of the stairs. I cannot be satisfied that he remarks complained of, by unidentified persons, descending the stairs all were made however I am prepared to accept they were.
Nonetheless there is no link to any conduct of the Respondents in my view. It is far too tenuous to suggest that Mr Gosewisch’s decision to start the meeting downstairs (a proper one) or the time it took to make that decision, was a contribution to any large extent to the abusive remarks. It seems to me that a perception that the Applicants were not locals, and as Mrs Noble described it, were taking locals’ opportunity to ask questions was also a contributor. The suggestion raised by Mrs Staff that she would write to the local newspaper to complain (I speculate) could also reasonably have contributed to some of the reported anger and “hostility” apparent to some of the witnesses.
However inappropriate those comments were, the Respondents neither made them or in my view could be said to have attracted any liability for the purposes of s122.
In respect of the words spoke by Mr Gosewisch, as found by me earlier in these reasons some, attention was given to the use of the word “hijack”.
The Macquarie Dictionary defines “hijack” as:-
“1. To steal (something) in transit, such as a truck and the goods it carries. 2. To seize by force or threat of force (a vehicle, especially a passenger-carrying vehicle, as an aircraft), and attempt to divert it to a different destination. 3. To seize control of (something) for one’s own purpose: clearly his ideas had been hijacked by Ted – verb (i). 4. To engage in such seizing or stealing.”
It seems to me that in the context of this meeting, the word was used to convey an impression that the two female Applicants had seized control of the meeting for their own purpose.
I do not regard the remarks of Mr Gosewisch as constituting harassment of the Applicants “in relation to the disability”, even though I am satisfied he used the word “hijack” on two separate occasions. I say that whilst it was reasonable for the audience to have inferred the word “hijack” was a reference to the Applicants (including Mr Staff on the second occasion), I do not find that was the sole or even predominant contribution to this unruly political meeting.
Rightly or wrongly, some of the members and public regarded the behaviour and intervention in the meeting of the Applicants as disruptive. Political type public gatherings often engender robust sharing of views and comments with asides that can be, either directly or indirectly, focused on personalities rather than issues.
As the Applicants during the meeting continued to advocate for an exchange of views with candidates about their case are of interest, namely access issues for the disabled across the city, some of the public became heated and disrespectful. However those remarks were, in my view, in relation to the perceived behaviour of the Applicants in the meeting, not “in relation to the disability”. In those circumstances, the remarks do not, in my view, constitute harassment within the meaning of ss39 and 40.
It follows that as no unlawful conduct took place as defined under the Disability Discrimination Act 1992; s122 has no application and does not arise. If I had found the conduct complained of did violate ss39 or 40, I would not find the Respondents’ actions (particularly Mr Gosewisch), as causing, inducing, adding or permitting those persons to act unlawfully. Mr Gosewisch, in a difficult situation, generally handled the matter well and did his best to enforce proper meeting procedure and conduct whilst allowing the public to “have their say”.
Conclusion
It follows from the above that no unlawful conduct under the Disability Discrimination Act 1992 can be established by the Applicants. The application will be dismissed.
I propose to set a timetable for the delivery of any submissions as to costs after the parties have had an opportunity to consider these reasons.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate: L Parke
Date: 29 August 2008
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