Vuga v Persal & Co. Trading Pty Ltd - [2017] QCAT 368

CITATION:

Vuga v Persal & Co. Trading Pty Ltd [2017] QCAT 368

PARTIES:	Kim Vuga (Applicant)
v
Persal & Co. Trading Pty Ltd (First Respondent) Paul Robins (Second Respondent)
APPLICATION NUMBER:	ADL072-16

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

23 to 25 October 2017

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

DELIVERED ON:

31 October 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. In contravention of section 46 of the Anti-Discrimination Act 1991 (Qld), Persal & Co. Trading Pty Ltd and Paul Robins did directly discriminate against Kim Vuga on the basis of political belief by:-

(a) stating to Ms Vuga in a telephone conversation on 8 April 2016 that Beach House Hotel did not want anything to do with her political party and the party was not welcome at the hotel;

(b) not permitting Ms Vuga and supporters of her political party on 9 April 2016 to enter the hotel or gather on the hotel premises including the car park.

2. Kim Vuga is to be paid the sum of $2,500 as compensation for these contraventions and Persal & Co. Trading Pty Ltd and Paul Robins are jointly and severally liable to pay this amount.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION DUE TO RELIGIOUS OR POLITICAL BELIEFS – where applicant wished to hold a “meet for drinks” gathering of her party supporters in a hotel – where this was refused by the hotel – whether it was refused on the basis of the attribute of political belief or activity

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – whether the Queensland legislation requires a finding of the reason for the treatment as a first step, instead of the approach required by Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – OTHER MATTERS – where respondents claimed to have done an act that was reasonably necessary to protect the health and safety of people at a place of work – whether this defence succeeds

Anti-Discrimination Act 1991 (Qld), s 7, s 10,
s 10(4), s 46, s 108, s 204, s 206, s 209

Alexander v Home Office [1988] 2 All ER 118 referred to
Cairns v Reginal Council v Carey [2012] QCATA 150 followed
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92 distinguished
Yu Ping Xi v WorkCover Queensland [2016] QCATA 134 followed

APPEARANCES:

APPLICANT:

Self-represented

RESPONDENT:

Max Spry, counsel, instructed by Cooper Grace Ward

REASONS FOR DECISION

This is a complaint made by Kim Vuga that Beach House Hotel directly discriminated against her in April 2016. In brief, she alleges that a duty manager had said it would be no problem if she and supporters of her party gathered for drinks at the hotel with a view to going on to a meeting elsewhere, and that a duty manager had seen and approved a flyer which her party intended to use to advertise…

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 368
Decision Date: 31 October 2017

CaseChat Overview and Summary

In the case of Vuga v Persal & Co. Trading Pty Ltd, Kim Vuga sought to hold a social gathering with her political party supporters at the Beach House Hotel, but was refused by the hotel management. The dispute was heard in the Queensland Civil and Administrative Tribunal (QCAT), where Vuga alleged that the refusal was due to discrimination based on her political beliefs. The respondents, Persal & Co. Trading Pty Ltd and Paul Robins, denied the discrimination and claimed the refusal was due to health and safety concerns.

The central legal issue was whether the refusal to allow the gathering was based on Vuga's political beliefs, thereby constituting discrimination under the Anti-Discrimination Act 1991 (Qld). Additionally, the court had to determine whether the Queensland legislation required a finding of the reason for the treatment as a first step, as opposed to the approach outlined in Purvis v New South Wales (Department of Education and Training). Lastly, the court had to consider whether the respondents' health and safety defence was valid.

The tribunal found that the refusal to allow the gathering was indeed based on Vuga's political beliefs, as evidenced by the direct communication from the hotel management expressing their unwillingness to associate with her party. The tribunal rejected the respondents' argument that they were required to first determine the reason for the treatment, instead following the established approach in Purvis v New South Wales. The tribunal also dismissed the respondents' health and safety defence, finding it was not reasonably necessary to protect the health and safety of people at the hotel.

The tribunal ordered that Persal & Co. Trading Pty Ltd and Paul Robins had contravened section 46 of the Anti-Discrimination Act 1991 (Qld) by directly discriminating against Vuga based on her political beliefs. They were jointly and severally liable to pay Vuga $2,500 as compensation for the contraventions.

Orders

Orders of the court

1. In contravention of section 46 of the Anti-Discrimination Act 1991 (Qld), Persal & Co. Trading Pty Ltd and Paul Robins did directly discriminate against Kim Vuga on the basis of political belief by:-

(a) stating to Ms Vuga in a telephone conversation on 8 April 2016 that Beach House Hotel did not want anything to do with her political party and the party was not welcome at the hotel;

(b) not permitting Ms Vuga and supporters of her political party on 9 April 2016 to enter the hotel or gather on the hotel premises including the car park.

2. Kim Vuga is to be paid the sum of $2,500 as compensation for these contraventions and Persal & Co. Trading Pty Ltd and Paul Robins are jointly and severally liable to pay this amount.

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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