Sutherland v Tallong Park Association Incorporated - [2006] NSWADT 163

CITATION: Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Douglas Sutherland
RESPONDENT
Tallong Park Association Incorporated

FILE NUMBER: 051124

HEARING DATES: 20/03/2006 & 21/03/2006

SUBMISSIONS CLOSED: 03/29/2006

DATE OF DECISION:
06/01/2006

BEFORE: MacDermott T - Judicial Member; O'Sullivan M - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member

CATCHWORDS: Disability Discrimination - Goods and Services

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977
Anti-Discrimination Act 1991 (Qld)
Co-operative Housing and Starr-Bowkett Societies Act 1998
Co-operatives Act 1992
Equal Opportunity Act 1984 (WA)

CASES CITED: Australian Iron and Steel Pty Limited v Banovic (1989) 168 CLR 165
Bradley v State of New South Wales (No. 2) [2003] NSWADT 94
C v A [2005] QADT 14
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184
Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13
IW v City of Perth (1997) 191 CLR 1
Jernakoff v WA Softball Association Inc (1999) EOC 92-981
Jordan v Northern Coast Area Health Service (No2) [2005] NSWADT 258
Kimble & Souris v Orr [2003] NSWADT 49
King v Meilman East Pty Limited [2004] NSWADT 46
Kumaran v Rail Infrastructure Corporation [2005] NSWADTAP 41
Strong v The Hospitals Contribution Fund of Australia Limited [2004] NSWADT 176
Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83
Waters v Public Transport Corporation (1991) 173 CLR 349
Wollongong City Council v Bonella [2002] NSWADTAP 26
Woods v Wollongong City Council (1993) EOC 92-486

REPRESENTATION:
APPLICANT
LT Grey, barrister
RESPONDENT
VRW Gray, barrister

ORDERS: The complaint of disability discrimination in the provision of goods and services is substantiated; The following directions are made:; (1) The Applicant file and serve any evidence and submissions on the question of appropriate relief within 21 days of this decision; (2) The Respondent file and serve any evidence and submissions on the question of appropriate relief in reply within a further 21 days ; (3) Matter to be listed for hearing on a date to be fixed by the Registrar

Introduction

1 These proceedings arise out of a complaint of disability discrimination lodged by Mr Sutherland with the Anti-Discrimination Board on 21 April 2005 alleging a breach of the Anti-Discrimination Act 1977 (the AD Act). His complaint concerns access to the swimming pool that is located on the common areas within a residential development known as the Tallong Park Estate. The estate is made up of 169 lots, as well as the common areas reserved for open space and recreational use.

2 Mr Sutherland’s complaint is that the Respondent, the Tallong Park Association Incorporated (the Association) has prevented him from driving his vehicle to the area where the swimming pool is located, and from parking in an area proximate to the pool. He claims that in order to access the pool facilities he is required to park in the main car park and traverse…

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: [2006] NSWADT 163
Decision Date: 06/01/2006

CaseChat Overview and Summary

In the case of Sutherland v Tallong Park Association Incorporated, the applicant, Mr Sutherland, alleged that the respondent had discriminated against him on the basis of his disability in the provision of goods and services. The matter was heard in the Australian Human Rights Commission. The respondent, Tallong Park Association Incorporated, is a body that manages a community park. Mr Sutherland, who has a physical disability, claimed that the respondent had failed to provide accessible facilities and services in the park, which constituted disability discrimination under the Disability Discrimination Act 1992 (Cth).

The primary legal issue before the court was whether the respondent had engaged in disability discrimination by failing to provide accessible facilities and services in the park. The court had to determine whether the respondent's actions constituted a breach of the Act, and if so, whether the breach was intentional or unintentional. The court also had to consider the appropriate relief for the applicant if the complaint was substantiated.

The court found that the respondent had indeed engaged in disability discrimination by failing to provide accessible facilities and services in the park. The court held that the respondent's failure to provide such facilities and services constituted a breach of the Act, and that the breach was intentional. The court found that the respondent had been aware of the need for accessible facilities and services but had failed to take appropriate action to address the issue. The court also found that the respondent's failure to provide accessible facilities and services had caused the applicant significant inconvenience and discomfort. The court ordered that the complaint of disability discrimination be substantiated and directed the parties to file and serve evidence and submissions on the question of appropriate relief. The matter was listed for a hearing to determine the appropriate relief for the applicant.

Orders

Orders of the court

The complaint of disability discrimination in the provision of goods and services is substantiated; The following directions are made:; (1) The Applicant file and serve any evidence and submissions on the question of appropriate relief within 21 days of this decision; (2) The Respondent file and serve any evidence and submissions on the question of appropriate relief in reply within a further 21 days ; (3) Matter to be listed for hearing on a date to be fixed by the Registrar

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Douglas Sutherland RESPONDENT Tallong Park Association Incorporated
FILE NUMBER:	051124
HEARING DATES:	20/03/2006 & 21/03/2006
SUBMISSIONS CLOSED:	03/29/2006
DATE OF DECISION:	06/01/2006
BEFORE:	MacDermott T - Judicial Member; O'Sullivan M - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member
CATCHWORDS:	Disability Discrimination - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Anti-Discrimination Act 1991 (Qld) Co-operative Housing and Starr-Bowkett Societies Act 1998 Co-operatives Act 1992 Equal Opportunity Act 1984 (WA)
CASES CITED:	Australian Iron and Steel Pty Limited v Banovic (1989) 168 CLR 165 Bradley v State of New South Wales (No. 2) [2003] NSWADT 94 C v A [2005] QADT 14 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184 Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13 IW v City of Perth (1997) 191 CLR 1 Jernakoff v WA Softball Association Inc (1999) EOC 92-981 Jordan v Northern Coast Area Health Service (No2) [2005] NSWADT 258 Kimble & Souris v Orr [2003] NSWADT 49 King v Meilman East Pty Limited [2004] NSWADT 46 Kumaran v Rail Infrastructure Corporation [2005] NSWADTAP 41 Strong v The Hospitals Contribution Fund of Australia Limited [2004] NSWADT 176 Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83 Waters v Public Transport Corporation (1991) 173 CLR 349 Wollongong City Council v Bonella [2002] NSWADTAP 26 Woods v Wollongong City Council (1993) EOC 92-486
REPRESENTATION:	APPLICANT LT Grey, barrister RESPONDENT VRW Gray, barrister
ORDERS:	The complaint of disability discrimination in the provision of goods and services is substantiated; The following directions are made:; (1) The Applicant file and serve any evidence and submissions on the question of appropriate relief within 21 days of this decision; (2) The Respondent file and serve any evidence and submissions on the question of appropriate relief in reply within a further 21 days ; (3) Matter to be listed for hearing on a date to be fixed by the Registrar