Miami Recreational Facilities Pty Ltd - [2017] QCAT 253

CITATION:

Miami Recreational Facilities Pty Ltd [2017] QCAT 253

PARTIES:

Miami Recreational Facilities Pty Ltd
(Applicant)

APPLICATION NUMBER:

ADL033-17

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

26 July 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

Miami Recreational Facilities Pty Ltd is exempt from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute referred to in section 7(f) of the Act from 27 July 2017 to 26 July 2020 in respect of the occupation of units at the property known as Miami Village Residential Complex situated on land comprised in seven plans being GTP428, GTP531, GTP530, BUP3994, BUP4093, BUP4130 and BUP 4291.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION ON THE BASIS OF AGE – where further period of exemption sought from age discrimination provisions – where accommodation for persons over 50 years of age – where no change in circumstances – where no evidence of decline in availability of affordable housing in particular area – whether non-discriminatory way to achieve same result – where previous findings of need for exemption – where not fair to residents to not grant a further exemption because of a recent shift in emphasis of Tribunal decisions and after exemptions have been granted on three previous occasions, without proper notice

Anti-Discrimination Act 1991 (Qld), s 7(f), s 45, s 46, s 77, s 81, s 82, s 83, s 113

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Savannah FNQ Developments Pty Ltd [2016] QCAT 141

APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

What is this Application about?

On three previous occasions, the Tribunal has exempted Miami Recreational Facilities Pty Ltd from the operation of the Anti-Discrimination Act 1991 (Qld), to allow it to discriminate on the basis of age in providing accommodation services and in disposing of interests in land.[1]
[1] Exemption application re: Miami Recreational Facilities Pty Ltd, Application EXE06/113;
Miami Recreational Facilities Pty Ltd, Application ADL012-10; Miami Recreational Facilities Pty Ltd [2013] QCAT 635.
Miami has applied to the Tribunal to extend the exemption for a further period of five years. Although Miami has had no change in circumstances, the Anti-Discrimination Commission Queensland has expressed concerns.

What are the relevant considerations?

The Tribunal may grant an exemption from the operation of a specified provision of the Act.[2] Relevant considerations[3] not in dispute were:
(a) Miami has operated the complex as an accommodation facility with the same facilities and services for…

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: [2017] QCAT 253
Decision Date: 26 July 2017

CaseChat Overview and Summary

Miami Recreational Facilities Pty Ltd sought an exemption from certain provisions of the Anti-Discrimination Act 1991 (Qld) to continue offering accommodation for persons over the age of 50 at its Miami Village Residential Complex. The Queensland Anti-Discrimination Tribunal was tasked with determining whether such an exemption was justified, considering the lack of changed circumstances and the absence of evidence indicating a decline in the availability of affordable housing in the area.

The primary legal issue before the Tribunal was whether Miami Recreational Facilities Pty Ltd could be granted a further exemption from the age discrimination provisions in the Act, despite the Tribunal's previous findings that such exemptions were necessary. The Tribunal had to assess whether the current application for exemption was fair to existing residents, particularly in light of recent shifts in the Tribunal’s approach to such exemptions and the fact that the company had already been granted exemptions on three previous occasions.

The Tribunal concluded that it was fair to grant the exemption, despite the recent shift in its approach. It found that the company had not been given proper notice of any change in the Tribunal's stance and had consistently relied on the Tribunal's previous decisions to justify its actions. Given these circumstances, the Tribunal determined that it would be unfair to residents to deny the company a further exemption. Consequently, the Tribunal granted the exemption for a period from 27 July 2017 to 26 July 2020.

The Tribunal's final order was that Miami Recreational Facilities Pty Ltd would be exempt from sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute of age for the specified period and property. This decision allowed the company to continue its practice of accommodating persons over 50 years of age at Miami Village Residential Complex.

Orders

Orders of the court

Miami Recreational Facilities Pty Ltd is exempt from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 (Qld) in relation to the attribute referred to in section 7(f) of the Act from 27 July 2017 to 26 July 2020 in respect of the occupation of units at the property known as Miami Village Residential Complex situated on land comprised in seven plans being GTP428, GTP531, GTP530, BUP3994, BUP4093, BUP4130 and BUP 4291.

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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