Grovenor v Eldridge

REASONS FOR JUDGMENT 1 This is an application for an order to enforce a determination made by the Human Rights and Equal Opportunities Commission pursuant to s 103(1) of the Disability Discrimination Act 1992 (Cth). The application is made under s 13 of the Human Rights Legislation Amendment Act (No. 1) 1999 (Cth) and s 105A of the Disability Discrimination Act 1992 (Cth). 2 The applicant's complaint arises out of an incident said to have occurred in January 1998 and in respect of which the applicant has submitted affidavit evidence. 3 In brief, the applicant's evidence is that on 2 January 1998, she visited a store known as Young Furniture Traders in Young, New South Wales accompanied by two friends. The applicant, who is visually impaired, was accompanied by a guide dog. On entering the store she was told by the owner of the store, Mr John Eldridge, the respondent in these proceedings, to take the dog out. Mr Eldridge refused to accept the applicant's claim that she is visually impaired and, in an aggressive and intimidating tone, ordered her out of the store saying he didn't care if the dog was a guide dog. 4 The applicant believes that Mr Eldridge may have had the impression that she could see because she has been trained in public relations, including to look at people when they speak. Using a mobile phone, the applicant telephoned the police for assistance but was told that the police could not intervene as it was "a discrimination matter". The applicant left the store and, while she was standing with her friends outside the entrance writing down details of the incident, Mr Eldridge again ordered her to get off his property. He also screamed at the applicant saying, "Go ahead, ruin me. Run me out of town". 5 The applicant claimed that she was very upset and embarrassed by the incident. Shortly after the incident she developed a rash on her stomach and legs that caused her discomfort and took some time to disappear. 6 Subsequently, as a result of a complaint by the applicant, the matter was brought before the Human Rights and Equal Opportunities Commission, and was heard by Inquiry Commissioner Alice Tay AM. The Commissioner conducted an inquiry into the matter in Young on 18 December 1998. At the hearing, the Commissioner received evidence concerning the incident from the applicant and the two friends who were with the applicant on the day in question. In addition the applicant's husband and daughter gave evidence as to the distress which the applicant had suffered. The respondent did not attend the inquiry and did not submit any evidence. However, the solicitor for the applicant advised the Commissioner that the respondent had given the applicant a written apology prior to the hearing. 7 The Commissioner gave an oral decision on the day of the hearing and provided written reasons on 3 February 1999. The Commissioner found that Mr Eldridge's conduct on the day in question was unlawful by reason of s 23(1)(a) of the Disability Discrimination Act 1992 (Cth) ("the Act"). Section 23(1)(a) states: "It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates; (a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not);…" Section 9 of the Actstates: "For the purposes of this Act, a person ("discriminator") discriminates against a person with (a) a visual disability…("aggrieved person") … [relevantly] if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person possesses or is accompanied by: (d) a guide dog…." 8 The Commissioner declared that Mr Eldridge should pay the sum of $1,000 by way of compensation for the injured feelings, distress and embarrassment caused to the applicant by the respondent's conduct. In deciding on this amount the Commissioner took into account the written apology provided to the applicant by the respondent. By letter dated 30 June 1999 (which was annexed to the applicant's affidavit read in these proceedings) the Public Interest Advocacy Centre wrote to the respondent demanding that the $1,000 compensation ordered by the Commissioner be paid. The letter advised that the decisions of the Human Rights and Equal Opportunity Commission are not binding but that, if the sum was not paid, proceedings would be brought in this Court. 9 The respondent did not enter an appearance in these proceedings and did not attend the hearing. At the hearing, he was called outside the court without response. The applicant read an affidavit of service, which was sworn by Timothy Tierney on 29 September 2000. This affidavit stated that the application, the affidavit of Laurie Grovenor sworn 1 September 2000 and the letter from the Public Interest Advocacy Centre dated 30 June 1999 referred to above were served on 15 September 2000. I accept this evidence and accordingly I am satisfied that the respondent was appropriately served. In these circumstances, and given the comparatively small amount which is involved and the disproportion of that amount to the costs that would be incurred in putting aside this matter and re-scheduling it for another time, it is appropriate for me deal with this matter now. 10 The respondent has not challenged the applicant's evidence in these proceedings and I accept her evidence. The evidence establishes that Mr Eldridge did not allow the applicant entry to his store solely because she was accompanied by her guide dog. This conduct amounts to discrimination within the meaning of s 9 of the Actand is unlawful conduct within the meaning of s 23(1)(a) of the Act. The applicant has seeks a declaration to this effect and damages. I see no reason to depart from the Inquiry Commissioner's assessment of damages and no argument has been put to me on that issue. I therefore propose to adopt that amount. 11 Accordingly the court: (1) declares that on 2 January 1998 the respondent engaged in conduct towards the applicant which is unlawful pursuant to section 23(1)(a) of the Disability Discrimination Act 1992 (Cth); and (2) orders that the respondent pay to the applicant damages in the amount of $1,000.