Palmpoint Pty Ltd - [2016] QCAT 419

CITATION:

Palmpoint Pty Ltd [2016] QCAT 419

PARTIES:

Palmpoint Pty Ltd

APPLICATION NUMBER:

ADL004-16

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

8 September 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Palmpoint Pty Limited is exempt from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(f) of the Act from 7 April 2016 to 6 April 2021 in respect of its activities in relation to the property known as Bribie Pines Island Village and Island Breeze Resort situated on land described as Lot 15 on SP108119, County of Canning, Parish of Woorim.

CATCHWORDS:

ANTI-DISCRIMINATION – EXEMPTION – 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 – whether 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 finding 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 two 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

ABC Business Australia Pty Ltd ATF ABC50plus Trust [2013] QCAT 719
Burleigh Town Village Pty Ltd and Anor [2011] QCAT 646
Exemption Application re: Palmpoint Pty Limited [2006] QADT 12
Ghostgum Developments Pty Ltd ATF Coomera Development Trust [2015] QCAT 500

Palmpoint Pty Limited [2011] QCAT 140
Re Body Corporate for Village Green (Caloundra) No 1 CTS 22630 [2015] QCAT 101

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

What is this Application about?

On two previous occasions, the Tribunal has exempted Palmpoint Pty Ltd from the operation of the Anti-Discrimination Act 1991 (Qld) to allow it to discriminate on the basis of age for its activities at Bribie Island Village and Island Breeze Resort. On each occasion, Palmpoint was exempted for a period of five years.[1]
[1] Exemption Application re: Palmpoint Pty Limited [2006] QADT 12; Palmpoint Pty
Limited [2011] QCAT 140.
Palmpoint has applied to the Tribunal to extend its exemption from the operation of the Act for a further period of five years. Unlike the previous occasions, the Anti-Discrimination Commission Queensland considers an exemption is no longer necessary.

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) Palmpoint has operated the accommodation facility as a residential village with the same facilities and services for persons over 50 years of…

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: [2016] QCAT 419
Decision Date: 8 September 2016

CaseChat Overview and Summary

In this case, the plaintiff, Palmpoint Pty Ltd, sought an exemption from the anti-discrimination provisions under the Anti-Discrimination Act 1991, specifically those that prohibit discrimination on the basis of age. The defendant, the Anti-Discrimination Commissioner, contested the exemption, which was requested for a property that the plaintiff operated, providing accommodation for persons over 50 years of age. The case was heard in the Queensland Civil and Administrative Tribunal.

The central legal issue before the Tribunal was whether the plaintiff could be granted a further period of exemption from the age discrimination provisions. The Tribunal had to consider whether there had been a change in circumstances since the previous exemptions were granted, and if there was no evidence of a decline in the availability of affordable housing in the area. Additionally, the Tribunal needed to determine whether there was a non-discriminatory way to achieve the same result and if it would be fair to the residents to not grant a further exemption, particularly given the recent shift in the Tribunal's decisions on such matters.

The Tribunal concluded that the plaintiff's circumstances had not changed significantly since the previous exemptions were granted. It was noted that the Tribunal had previously found a need for an exemption, and a further exemption would not be unfair to the residents. Given that the exemptions had already been granted on two previous occasions, without proper notice, the Tribunal found it appropriate to grant another exemption period. The Tribunal ruled that it would be unjust to the residents to deny the plaintiff a further exemption, especially in light of the recent shift in the Tribunal's approach to such cases.

The Tribunal granted the plaintiff's application for an exemption from the specified sections of the Anti-Discrimination Act for the period from 7 April 2016 to 6 April 2021. This decision allowed the plaintiff to continue operating its property with accommodation for persons over 50 years of age, without being subject to the anti-discrimination provisions for the specified period.

Orders

Orders of the court

1. Palmpoint Pty Limited is exempt from the operation of sections 45, 46, 76, 77, 81, 82 and 83 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(f) of the Act from 7 April 2016 to 6 April 2021 in respect of its activities in relation to the property known as Bribie Pines Island Village and Island Breeze Resort situated on land described as Lot 15 on SP108119, County of Canning, Parish of Woorim.

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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