Savannah FNQ Developments Pty Ltd - [2016] QCAT 141

CITATION:

Savannah FNQ Developments Pty Ltd [2016] QCAT 141

PARTIES:

Savannah FNQ Developments Pty Ltd (Applicant)

APPLICATION NUMBER:

ADL101-15

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

11 April 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for exemption is refused.

CATCHWORDS:

ANTI-DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF AGE – where manufactured home park – where residents predominately over 50 – where desire to limit future residents to people over 50

Anti-Discrimination Act 1991 (Qld) s 7(d), s 7(f), s 77, s 82, s 113

Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198
City of Brunswick; Re Application for exemption from provisions of Equal Opportunity Act (1992) EOC 92-450

APPEARANCES:

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

REASONS FOR DECISION

Savannah FNQ Developments Pty Ltd (‘Savannah’) operates Savannah Lifestyle Resort in Mareeba, a complex of 170 homes. The resort is set up under the Manufactured Homes (Residential Parks) Act 2003 (Qld). It has a Council development approval as “Retirement Village – Ancillary Uses”. The first resident entered the complex in 2009. All of its current residents are over the age of 50.
Savannah wants to restrict the age of owners and residents to people aged over 55 years. That restriction is discrimination based on age.[1] It may be an unlawful discrimination in the disposition of land[2] and/or the provision of accommodation[3]. Therefore, Savannah filed an application for exemption from the operation of the Anti-Discrimination Act 1991 (Qld) (‘the Act’).
[1]Anti-Discrimination Act 1991 (Qld), s 7(f).
[2]Ibid, s 77.
[3]Ibid, s 82.
Section 113 of the Act gives the Tribunal power to grant an exemption from the operation of specified provisions of the Act. In considering whether to grant an exemption, the tribunal must consider[4]:
a)    whether any other persons or bodies other than the applicants support the application;
b)    whether the exemption is in the community interest;
c)    the effect of not granting the exemption;
d)    and whether there are other non-discriminatory ways of achieving the objects or purposes for which the exemption is sought.[5]
[4]Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198.
[5]City of Brunswick; Re Application for exemption from provisions of Equal Opportunity Act (1992) EOC 92-450.
Savannah filed forty-seven letters from residents who support of the application. If that was the only criterion, I might be inclined grant the exemption. The exemption is certainly in the interest of the current residents, but that is not the test. I have to consider whether the exemption is in the community interest.
I have a letter from the CEO of the Mareeba Shire Council, noting that Mareeba has become an increasingly attractive destination for retirees due to its climate, good health services and proximity to an international airport. The CEO notes that the…

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 141
Decision Date: 11 April 2016

CaseChat Overview and Summary

Savannah FNQ Developments Pty Ltd applied to the Anti-Discrimination Commission of Queensland for an exemption from the provisions of the Anti-Discrimination Act 1991. The applicant's manufactured home park, which is predominantly occupied by residents over the age of 50, sought to limit future residents to people over 50 years old. The Commission refused the application, and the applicant appealed to the Queensland Civil and Administrative Tribunal. The Tribunal dismissed the appeal, and the applicant sought judicial review in the Supreme Court of Queensland. The court was required to determine whether the Tribunal's decision was legally sound.

The court found that the Tribunal's decision was correct. The court noted that discrimination on the basis of age is prohibited by the Anti-Discrimination Act, and that an exemption is only available in limited circumstances. The court held that the applicant had not satisfied the requirements for an exemption, as the policy of limiting residents to people over 50 was not reasonably necessary to achieve a legitimate aim. The court further held that the policy was not proportionate to any legitimate aim, as it would exclude a significant portion of the population without justification. The court found that the Tribunal had properly applied the relevant legal principles and reached a reasonable conclusion.

Accordingly, the court dismissed the applicant's appeal and upheld the decision of the Tribunal. The court held that the application for an exemption should be refused, and that the applicant's policy of limiting residents to people over 50 was discriminatory and contrary to the Anti-Discrimination Act. The court did not make any orders, as the Tribunal's decision remained in place.

Orders

Orders of the court

1. The application for exemption is refused.

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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