DATES OF HEARING 2, 3, 4, 9 and 16 February 2000

DECISION The complaint of indirect discrimination on the basis of the complainant's impairment, in the provision of services, is found proven. The form of the Orders to be made is reserved. A decision on the complainant's claim for costs is reserved. Oral submissions will be invited on both matters.

RESPONDENT Mr B. Lacy of Counsel, instructed by Herbert Geer & Rundle

A. The history of the complaint and procedural matters

1. The history of this complaint is as follows. Mr Frank Hall-Bentick, the Complainant, gave evidence that in mid to late April 1997, he telephoned the Greater Union Organisation Pty Ltd's Russell Street Cinemas at 131 Russell Street, Melbourne ("the Russell Cinemas") and asked whether a person in a wheelchair could gain access to the cinemas. Mr Hall-Bentick said he was told the answer was no.

2. Mr Hall-Bentick gave evidence that he visited the Russell Cinemas for the first time on the evening of Friday, 2 May 1997, to see a film that interested him. Mr Hall-Bentick said that he wanted to ascertain for himself whether a person in a wheelchair (such as himself) could gain access. He stated:

"... sometimes when people think ... there's no access, sometimes there may be or there may be some way of getting around it and I particularly wanted to go and see for myself ... I mean sometimes people don't know what wheelchair access means". (Transcript at page 117, hereafter "T 117").

3. Mr Hall-Bentick's account of his visit to the Russell Cinemas on the evening of 2 May 1997 was as follows:

"After initial difficulties in bypassing the front steps and opening the front doors, I could see only stairs leading to the upstairs and downstairs Cinemas.

I then tried to use the Male toilets but found them inaccessible to me in my wheelchair.

I then went to the ticket counter to see if there was any other way in which I could access these Cinemas in my electric wheelchair and was told that there wasn't so I left". (Exhibit A, paras. 10 - 12, and T 35).

4. After finding that he was unable to gain access to the theatres and male toilets at the Russell Cinemas, Mr Hall-Bentick gave evidence that he decided to lodge a complaint with the Human Rights and Equal Opportunity Commission (hereafter "HREOC") alleging unlawful discrimination under the (Commonwealth) Disability Discrimination Act 1992. He did so by a letter dated 6 May 1997 (Exhibit. 1). Mr Hall-Bentick subsequently signed a formal Statement of Complaint on 13 August 1997 (Exhibit 2).

5. On 25 May 1999, Mr Hall-Bentick wrote a letter to the Equal Opportunity Commission Victoria (hereafter "EOC"), which acts as an agent for HREOC, requesting that his complaint be treated as one made under the (Victorian) Equal Opportunity Act 1995 (hereafter "the EO Act") rather than as one made under the Disability Discrimination Act. The EOC acted on this request, accepting that as from 25 May 1999, Mr Hall-Bentick's complaint was one made under the EO Act.

6. The EOC came to the view that the complaint could not be conciliated successfully. The EOC informed Mr Hall-Bentick and the Greater Union Organisation Pty Ltd (hereafter "the GUO") of its view, pursuant to section 113(1) of the EO Act. On 12 July 1999, Mr Hall-Bentick exercised his right under section 113(2) of the Act to require the EOC to refer the matter to the Victorian Civil and Administrative Tribunal (hereafter "VCAT"). The EOC referred the matter to VCAT on 12 August 1999. VCAT held a Compulsory Conference on 3 September 1999 and made a direction that the matter be referred to mediation. Mediation took place on 30 September 1999 but the matter remained unresolved. VCAT then held a Directions hearing on 8 October 1999 and set dates for the filing and serving of various documents, and for the hearing of the matter.

7. The matter came on for hearing on 2 February 2000 and continued for a further four days during February.

8. At the hearing, Mr Hall-Bentick represented himself and did so in a measured and effective manner. Mr Hall-Bentick was assisted by his mother who on occasion took notes and located relevant documents. Mr Lacy of Counsel appeared for the Respondent, and, consistent with his duty to his client, provided appropriate assistance to Mr Hall-Bentick and to the Tribunal.

9. On the morning of 3 February 2000, the second day of the hearing, the Tribunal - accompanied by the parties - visited the Russell Cinemas for a view. The view was arranged by the Respondent. On the morning of 16 February 2000, the fifth and final day of the hearing, the Tribunal - again accompanied by the parties - visited the Catholic Regional College in St Albans and the Jam Factory in South Yarra for views of stair platform lifts (motorised, mechanical devices to enable people in wheelchairs to ascend and descend stairs). These two views were arranged by the Complainant.

10. At the conclusion of the hearing, the parties were invited to make their final submissions in writing. Both did so.

11. Mr Hall-Bentick's complaint is one of discrimination on the basis of his impairment in the provision of services, the relevant services being the provision of entertainment or recreation, and access to and use of any place that members of the public are permitted to enter.

12. Mr Hall-Bentick put forward his complaint in terms of both direct and indirect discrimination. His original Particulars of Complaint were later supplemented by more detailed Particulars of Complaint. Mr Hall-Bentick's two Particulars of Complaint documents served as his witness statements (Exhibits A and B).

13. In its Particulars of Defence, the Respondent denied that it had discriminated against Mr Hall-Bentick.

14. The same circumstances were at the heart of Mr Hall-Bentick's claims of direct and indirect discrimination. However, Mr Hall-Bentick decided to abandon his claim of direct discrimination (Complainant's written "Closing Statement", dated 7 March 2000, p. 2).

15. What was Mr Hall-Bentick's claim of indirect discrimination? He put the claim as follows:

"The Greater Union Organisation Pty Ltd is discriminating ... against me because of the steps and stairs I cannot climb at the front entrance and to each of their 6 Cinemas at 131 Russell Street Melbourne.

Further I cannot use their toilets because the aisle in the male toilet is not wide enough for my wheelchair to get near the toilets.

My impairment confines me to an electric wheelchair which cannot climb the steps and stairs to enter their toilets to use them.

Greater Union Organisation (GUO) Pty Ltd are treating me less favourably than non disabled people ... Non disabled people can easily use the steps and stairs and have done so for the last twenty-two years.

My impairment is the substantial reason for this less favourable treatment by GUO for if I didn't have this impairment I would be able to climb the steps and stairs as can non disabled people.

Further I believe that the barriers created by the steps, stairs and inaccessible toilet is not reasonable ..." (Exhibit B, paras 13 - 18).

16. During the hearing, I clarified with Mr Hall-Bentick the "requirement, condition or practice" which he asserted the Respondent was imposing on him (in terms of the definition of indirect discrimination in section 9(1) of the EO Act). Mr Hall-Bentick said it was the requirement that to see films at the Russell Cinemas, a person needed to be able to get up stairs (and get down stairs). He was referring to the Cinemas' stairs. Because he is a person confined to a wheelchair, Mr Hall-Bentick could not meet this condition or requirement, whereas most people (who do not need to use wheelchairs because of impairment) could do so. In Mr Hall-Bentick's view, the condition or requirement was not reasonable (T 31, 39 - 40 and 42).

17. Implicit in Mr Hall-Bentick's claim of indirect discrimination in the context of his not being able to use the male toilets at the Russell Cinemas was that a condition or requirement for use of the male toilets was that a person not be confined to a wheelchair, that this was a condition or requirement that he - because of impairment which confined him to a wheelchair - could not meet; that most people (who did not need to use wheelchairs because of impairment) could meet the requirement; and that the requirement or condition was not reasonable.

18. It can be noted that Mr Hall-Bentick and some friends visited the Russell Cinemas on 25 October 1999 "to see if any changes have been made to enable me to use these facilities" (Exhibit A, para. 15). On this occasion, Mr Hall-Bentick met an employee of the Respondent, Ms Jeanine Kay Orr, and asked her about access for people with disabilities. Ms Orr replied that there was access to Cinemas 2 and 3 "via the exit ways to the cinemas which are in the laneways on either side of the building". (Ms Orr's affidavit dated 23 December 1999, para. 2). Ms Orr then conducted Mr Hall-Bentick and his colleagues some seventy metres down a laneway beside the Russell Cinemas and the group entered Cinema 2 through an emergency exit. From there, Ms Orr showed the group how Cinema 3 could also be accessed by people using wheelchairs.

19. As mentioned, Mr Hall-Bentick included in his Particulars of Complaint an account of his visit to the Russell Cinemas on 25 October 1999. However, the events outlined by Mr Hall-Bentick on 25 October 1999 (and confirmed by Ms Orr in her affidavit) do not form part of Mr Hall-Bentick's complaint in this matter. This is because Mr Hall-Bentick's visit to the Russell Cinemas occurred after he had lodged his complaint with the EOC.

20. The key matter for consideration in this case is Mr Hall-Bentick's visit to the Russell Cinemas on the evening of 2 May 1997, and whether the Respondent discriminated against him on that occasion.

21. Provisions of the EO Act that are relevant to this case are as follows:

(b) the presence in the body of organisms that may cause disease;

(ii) a condition or disorder that results in a person learning more slowly than people who do not have that condition or disorder;

(e) malformation or disfigurement of a part of the body;

"services" includes, without limiting the generality of the word -

(a) access to and use of any place that members of the public are permitted to enter;

(c) provision of entertainment, recreation or refreshment;

The following are the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 3 -

(1) Discrimination means direct or indirect discrimination on the basis of an attribute.

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including -

(a) the consequences of failing to comply with the requirement, condition or practice;

(b) the cost of alternative requirements, conditions or practices;

(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.

(3) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

In determining whether or not a person discriminates, the person's motive is irrelevant.

11. Discrimination by acting with others and by not acting

It is irrelevant whether discrimination occurs by a person -

(a) acting alone or in association with any other person;

This Act does not prohibit discrimination if an exception in Part 3 (whether or not in the same Division as the provision prohibiting the discrimination) or Part 4 or an exemption under Part 4 applies.

42. Discrimination in the provision of goods and services

(1) A person must not discriminate against another person -

(a) by refusing to provide goods and services to the other person;

(b) in the terms on which goods and services are provided to the other person;

(c) by subjecting the other person to any other detriment in connection with the provision of goods and services to him or her.

(2) Sub-section (1) applies whether or not the goods and services are provided for payment.

46. Exception - special manner of providing a service

A person may refuse to provide a service, or set reasonable terms for the provision of a service, to another person if the service would be required to be provided in a special manner because of the other person's impairment or physical features and -

(a) the person cannot reasonably provide the service in that manner; or

(b) the person can only reasonably provide the service in that manner on more onerous terms than the person could reasonably provide the service to a person without that impairment or those physical features.

22. So end the provisions of the EO Act that are relevant to this case.

23. It can be noted that discrimination on the basis of impairment became unlawful in Victoria late in 1982; the Equal Opportunity (Discrimination Against Disabled Persons) Act 1982 received assent on 21 December 1982.

24. If he is to succeed, the Complainant must prove his case on the balance of probabilities. The task for Mr Hall-Bentick is to prove, on the balance of probabilities, that the Respondent subjected him to discrimination.

25. In Miller v Minister of Pensions [1947] 2 ER 372 at 374, Denning J. (as he then was) spoke in the following terms of the degree of cogency which evidence must reach in order that it may discharge the legal burden of proving a case on the balance of probabilities:

"That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the Tribunal can say: `we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not".

26. When applying this standard, the Tribunal must take account of the fact that an allegation of discrimination on the grounds of impairment in the provision of services, is a serious matter. If the claim is found proven, this may have an adverse effect on the reputation and standing in the community of the Respondent. This does not make the burden of proof heavier or different from that ordinarily applied in civil cases. It is, however, a factor to be taken into account. (See Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR 336 at 360 - 361 per Dixon J).

D. The Complainant, his impairment and associated matters

27. It is relevant to say a little about Mr Hall-Bentick, his impairment, and associated matters.

28. In late 1999 when he lodged his Particulars of Complaint, Mr Hall-Bentick was 46 years of age. Mr Hall-Bentick gave evidence that he works at the Centrelink office in Sunshine, and that he has worked there since 1993. He works as a disability officer, assessing applicants for disability pensions, and assisting those on disability pensions or those on New Start allowances - who have medical conditions - to find work or training through specialist service-providers. Mr Hall-Bentick achieved Year 11 at school and has been working with people with disabilities since 1975. (T 231)

29. Mr Hall-Bentick has a condition, familial peripheral neuropathy, which means that he has been confined to a wheelchair since 1984. Mr Hall-Bentick's condition has resulted in a weakening of the muscles in his feet, legs, hands, arms, shoulders and chest. Mr Hall-Bentick sat in his wheelchair throughout the proceeding. He is not able to independently stand, walk, or ascend or descend stairs and steps.

30. Mr Hall-Bentick is not a robust person. When I asked if it would be accurate to say that he is not a particularly strong person, Mr Hall-Bentick said "weak" would be accurate. (T 235)

31. Mr Hall-Bentick said that he weighs about 50 kilos, approximately the same as the motorised electric wheelchair that he uses. By placing his right hand on a small T-bar control, Mr Hall-Bentick is able to steer his wheelchair, and to accelerate and brake, as needed. Each wheel on the wheelchair has an independent electric motor, so that steering is effected by applying more power - by use of the T-bar - to one side of the wheelchair than to the other. Mr Hall-Bentick's wheelchair has small, solid rubber wheels at the front, and the rear wheels have pneumatic tyres.

32. Mr Hall-Bentick gave evidence that the batteries in his wheelchair last for five to six hours of constant use. The time the batteries last depends mainly on the speed Mr Hall-Bentick chooses to travel and on the terrain over which he travels. If the terrain is uneven, the wheelchair uses power from the batteries more quickly. And if Mr Hall-Bentick chooses to travel faster than normal, this also uses battery power more quickly.

33. If Mr Hall-Bentick goes to a cinema to see a film, he turns off the wheelchair's power during the film. When he turns the wheelchair's power on again at the end of the film, the wheelchair has whatever remains of its five to six hours of battery capacity. Mr Hall-Bentick recharges the wheelchair's batteries overnight so that he has five to six hours capacity each day. (T 225)

34. Mr Hall-Bentick said his motorised wheelchair was a "Powertec", a British make, and that it was some six years old. He said his wheelchair would be regarded as a "very standard" motorised wheelchair, including in terms of its length and width. (T 138)

35. Mr Hall-Bentick does not have the strength to use a manual wheelchair. He said:

"I don't have the strength in my arms and I can't grip the wheels anymore so unfortunately I am not able to use a manual wheelchair". (T 233)

36. Mr Hall-Bentick lives in the inner-Melbourne suburb of Richmond and relies on trains for his transport needs. Using his wheelchair, Mr Hall-Bentick can board and leave trains by use of the metal platform carried on each train and used by the train driver to connect the train to the platform when a person in a wheelchair wishes to board or leave the train.

37. Mr Hall-Bentick occasionally uses maxi-cabs for special transport needs (maxi-cabs being large taxi-cabs that can accommodate a person in their wheelchair), but said he lacked confidence in their punctuality. Very occasionally, Mr Hall-Bentick is taken on outings by friends in their car. This requires his wheelchair to be dismantled and stowed in the boot of the car during the journey. Mr Hall-Bentick cannot use trams or buses for transport because of their entry steps (though Mr Hall-Bentick acknowledged that some buses are being made wheelchair-accessible: T 238).

38. Mr Hall-Bentick travels to the city once, twice or three times a week. He travels there from Richmond by train to visit restaurants with friends, bookshops in Swanston Street and Elizabeth Street, Ross House in Flinders Lane for monthly meetings of a disability group, and to go to films. For Mr Hall-Bentick, seeing films is an important leisure activity. There is no cinema in wheelchair distance of Mr Hall-Bentick's residence in Richmond. (T 234)

39. Mr Hall-Bentick often sees films at the Village City Centre at 206 Bourke Street, Melbourne. Each of the four theatres at this Centre is accessible for people in wheelchairs. Mr Hall-Bentick enjoys seeing films at the Village City Centre. He stated:

"... if I'm interested in going to see what films are on at Village, I can just go into the foyer, have a look and see what films are on, decide one out of four which one I want to see, decide on a particular time that's closest if I want to watch that one and then it's just access via the lift and flat all the way to the back of the cinemas ..." (T 121)

40. Mr Hall-Bentick has also seen films at the Kino at 45 Collins Street, Melbourne, but does not enjoy the specialist films shown there as much as the "mainstream" films shown at the Village City Centre. Mr Hall-Bentick has also seen films at Crown Casino (using a stair platform lift installed there to negotiate stairs). Mr Hall-Bentick said he sometimes goes to see films after work at the Market Place Village Megaplex in Sunshine. There are some twenty cinemas at this new "megaplex" and access presents no difficulty:

"... it's all flat and you can go unassisted from the very front door right up to actually getting into the seats by yourself so there's no problems there ..." (T 129)

41. Because of their arrangements with distributors, Hoyts, Village and the GUO do not show the same films as each other at their city cinemas. Mr Cody (of the Respondent) said that in Melbourne,

"... Hoyts, Village and Greater Union are almost within a block of each other and it wouldn't make a lot of sense for the three cinemas to be screening the same films." (Cody, T 364)

Mr Hall-Bentick wants to be able to see films at the Russell Cinemas to broaden the range of films available to him when he visits the city. If Mr Hall-Bentick wants to see a particular film that is screening at the Russell Cinemas - but is not able to gain access - he cannot simply go around the corner and see the same film at a cinema (such as Village) that is wheelchair-accessible. The reason is that the film will not be showing at the nearby (competitor's) cinema.

42. In his Particulars of Complaint, Mr Hall-Bentick set out a program of building renovations which he considered the Respondent "and parent company Amalgamated Holdings" should be ordered to undertake over a three year period. (Exhibit A, paras 25 - 27)

43. In the first twelve month period, Mr Hall-Bentick stated that he considered the Respondent (and Amalgamated Holdings) should be required to undertake a number of renovations, including the following:

25.5 provide accessible toilets on the ground floor;

25.7 provide a stair lift platform to the main upstairs Cinema;

25.8 remove some internal seating to provide central viewing for up to five people in wheelchairs in above Cinemas;

44. In the second twelve month period, Mr Hall-Bentick stated that he considered the Respondent (and Amalgamated Holdings) should be required to undertake a number of further renovations, including the following:

"26.1 provide stair lift platforms to the remaining two upstairs Cinemas;

26.2 remove some internal seating to provide central viewing for up to five people in wheelchairs in the remaining two upstairs Cinemas;

45. In the third twelve month period, Mr Hall-Bentick said that he considered the Respondent (and Amalgamated Holdings) should be required to undertake a number of additional measures, including the following:

"27.1 provide a stair lift platform to the remaining basement Cinema;

27.2 remove some internal seating to provide central viewing for up to five people in wheelchairs in the basement Cinema;

27.3 provide accessible toilets on the upstairs floor;

46. As will be apparent, Mr Hall-Bentick was seeking orders, the effect of which would be to make all six theatres at the Russell Cinemas fully accessible for people in wheelchairs. It can be noted that Mr Hall-Bentick did not suggest that the Respondent be required to install a lift - a more expensive option - to make the theatres accessible to people in wheelchairs.

47. Mr Hall-Bentick was also seeking orders that would require the Respondent (and Amalgamated Holdings) to conduct disability audits of:

"... all other premises partly or fully owned or leased by Greater Union or parent company Amalgamated Holdings ... and the implementation of a three year program to make all premises partly or fully owned or leased by Greater Union or parent company Amalgamated Holdings accessible to people using wheelchairs".

48. In this proceeding, Mr Hall-Bentick was seeking costs, meaning the out-of-pocket expenses that he incurred during the course of bringing and conducting the case himself. (Exhibit A, para. 28 and T 29). Mr Hall-Bentick also sought, "Any other order that the Tribunal deems appropriate". (Exhibit A, para. 29)

49. On the first day of the hearing, I asked Mr Hall-Bentick the following question:

"Are you ... seeking in this particular case that the Tribunal award a sum of money to you because of what you say has happened to you? I ask that question because it's not clear to me whether that's what you are seeking, as well as various building works which you are clearly seeking to the building in question."

"No, I'm not seeking any funds other than some out-of-pocket expenses." (T 29)

50. The case therefore proceeded on the basis that Mr Hall-Bentick was seeking out-of-pocket expenses, but no monetary award of compensation.

51. The Russell Cinemas are owned and operated by the GUO, the Respondent. They are housed in a large, stand-alone building that was opened in 1978. The building houses six cinemas (called "theatres" in these Reasons) that have a total seating capacity of some 2,600 patrons. The building has stair access to all theatres; it has no lift. Even though it is only twenty-two years old, the building could be described as an older-style cinema complex, particularly in comparison with the "megaplexes" that have been built in suburban areas in recent years. ("Megaplexes" typically have sixteen or more theatres; the theatres in a megaplex are generally smaller in seating capacity than those at the Russell Cinemas.)

52. Since its opening in 1978, there have been minor changes to the building. The removal of rendering at the front of the building occurred in the late 1980's and a liquor bar was installed on the mezzanine level in the early 1990's; the bar has since been closed. In late 1999 and early 2000, a minor renovation was undertaken to improve access for staff to a projection facility. (Exhibit 4, paras 3 - 4)

53. As mentioned, the Russell Cinemas' six theatres are contained in a "stand-alone" building. The building's entrance is in Russell Street. There are laneways on the north and south sides of the building, and at the rear. The laneways on the north and south sides have lighting and security cameras, a response to people selling drugs and shooting-up in the laneways (evidence of Mr Mannswirth of the Respondent, T 280 and 287 - 288).

54. At my request, the Respondent produced a written statement setting out the seating capacity of each of the Russell Cinemas' six theatres, and a short narrative as to how a person would enter the building and proceed to each of the theatres as at April/May 1997, the relevant time so far as Mr Hall-Bentick's complaint is concerned. Mr Hall-Bentick agreed that the written statement was accurate, and it became Exhibit 3, a joint exhibit of the Respondent and Complainant.

55. The Russell Cinemas' building is built on an incline. To gain entry in April/May 1997, a person needed to ascend between one and four steps, depending on which part of the entrance a person chose to use. If a person chose to enter at the south end of the entry steps, the single step was 2 to 3 centimetres in height. At the north end of the entry, there are four steps. Once a patron has entered the building, it is then approximately 12 to 18 metres to the ticket box. Exhibit 3 indicates the following about how a patron would then proceed to each of the six theatres.

56. Leaving the ticket box, to gain entry to Theatre 1, a patron would:

* Walk approximately 3 metres to the start of the cinema seating;

* Patrons who choose to sit towards the front ... need to descend steps to the East which are spaced approximately 1 metre apart down both side aisles".

57. Leaving the ticket box, to gain entry to Theatre 2, a patron would:

* "Walk approximately 30 metres in a diagonal direction;

* Descend 6 stairs and walk approximately 7 metres to the entrance of the cinema;

* Once inside the cinema a patron can choose whether to turn left or right and proceed approximately 8 metres to the aisles running down both sides of the cinema;

* To proceed to seats at the front of the cinema there are no stairs however the floor does slope downwards towards the screen which is to the western side of the building".

58. Leaving the ticket box, to gain entry to Theatre 3, a patron would:

* "Walk approximately 30 metres in a diagonal direction;

* Once inside the cinema a patron can then choose to turn left or right and walk approximately 3 metres to the two aisles descending into the auditorium. Patrons who wish to sit at the front of the cinema must descend a step approximately each metre".

59. Leaving the ticket box, to gain entry to Theatre 4, a patron would:

* "Walk approximately 10 metres west to the foot of a staircase;

* Walk approximately 18 metres in a diagonal west south west direction;

* Patrons can turn left or right and proceed 4 metres to the aisles which run either side of the auditorium.

* A patron who chooses to sit at the back of the cinema must climb 4 additional stairs leading east and as they proceed further back small steps are in place approximately every 50 centimetres - seats in the front can be accessed via a sloping floor heading west".

60. Leaving the ticket box, to gain entry to Theatre 5, a patron would:

* "Ascend to the top of the two flights of stairs as described in the explanation regarding Theatre 4 above;

* Walk approximately 14 metres west in a straight line;

* Ascend 16 stairs and enter the cinema. Patrons can choose to walk 3 metres to the left or right and proceed along the aisles at the front of the cinema;

* Patrons who choose to sit at the back of the cinema have to ascend 4 steps;

* As they proceed further to the back of the cinema, small steps are placed at 50 centimetre intervals".

61. Leaving the ticket box, to gain entry to Theatre 6, a patron would:

* "Ascend to the top of the two flights of stairs as described above (for Theatres 4 and 5);

* Patrons can choose to turn left or right and walk approximately 4 metres or another 4 metres to reach one of the 4 aisles at the front of the cinema.

* Should patrons choose to sit at the back of the cinemas they must ascend 4 further steps.

* To proceed further to the back of the cinema small steps are spaced every 50 centimetres".

62. Exhibit 3 also outlines how a patron would visit the nearest toilet in the building, once a film had finished.

63. Exhibit 3 indicates that to leave any of the six Theatres, a patron would take the same route as that used to gain access - but in reverse.

64. It will be apparent that to gain access to any of the Theatres at the Russell Cinemas in April/May 1997, a patron needed to be able to ascend between one and four steps at the Russell Street entrance to gain access to the building, and to then be able to negotiate a minimum of six stairs (to gain access to Theatre 2) or a maximum of forty-three stairs to gain access to Theatres 4 or 5.

65. Exhibit 3 states that Theatres 2 and 3 could be accessed in April/May 1997 by a person in a wheelchair, as follows.

66. To move from the ticket box to Theatre 2, a patron in a wheelchair would:

* "Proceed out of the cinema the way they entered;

* Proceed approximately 70 metres down the lane on the southern side of the building;

* During this process another employee from Greater Union would have proceeded to Theatre 2 and opened the emergency exit doors from the inside;

* Inside the cinema proceed 2 metres to the right.

* The patron would then be assisted out of their wheelchair and would sit in a cinema seat anywhere along the aisle on the south side of the theatre.

* The wheelchair would be stowed in a safe place".

67. To move from the ticket box to Theatre 3, a patron in a wheelchair would proceed as follows.

* "An employee from Greater Union would assist the patron out of the cinema the way they had entered. There were then two options. Proceed down the left hand lane as explained above (in relation to Theatre 2: wheelchair access);

* The patron would then be wheeled through Theatre 2 as it has a ramp, they would then be wheeled approximately 15 metres across the lower foyer to the entrance of Theatre 3;

* As Cinema 3 has a step every 1 metre patrons would be assisted down the steps to where they chose to sit;

* They would be assisted from the wheelchair into a seat and the wheelchair would be stowed in a safe place;

* An alternative way was to exit the cinema, assisted by an employee from the Greater Union. Turn left and proceed for 15 metres, turn left and proceed approximately 70 metres down the laneway;

* At the end of the laneway patrons would then be assisted up a 4 to 5 centimetre lip on the step;

* During this process a Greater Union employee would have proceeded to Theatre 3 and opened the door from the inside. Patrons would then be assisted approximately 3 metres to the front row".

68. Exhibit 3 indicates that as at April/May 1997, a person in a wheelchair could not gain access to Theatres 1, 4, 5, or 6.

69. The screen sizes in the Theatres vary. The larger the theatre, the larger the screen. Exhibit 8 (provided by the Respondent) sets out the screen sizes at the Russell Cinemas' Theatres, as follows:

70. It can be noted that the sound systems in the Theatres may vary. The Russell Cinemas' Manager, Mr Mark Mannswirth, explained that all the Theatres have Dolby sound, but that three have (the superior) Dolby Digital. Generally the Dolby Digital system is used in Theatre 6, the largest theatre, but the other two Dolby Digital processors can be moved between the other Theatres, depending on the films being shown. (T 282 - 283)

71. Immediately prior to this case being heard, the Respondent had arranged for certain building works to be undertaken at the Russell Cinemas to improve access for people with mobility disabilities, including people in wheelchairs. The building works are outlined later (in Part H of these Reasons).

72. While witnesses for the Respondent emphasised that the Russell Cinemas are "a stand-alone profit centre" within the GUO organisation, it has to be noted that the Respondent in this proceeding is the Greater Union Organisation Pty Ltd, not the Russell Cinemas. This means that in any consideration of "reasonableness" - whether in terms of section 9(1)(c) of EO Act (bearing in mind section 9(2)(b) and (c)) or of section 46 of the same Act - the financial circumstances of the GUO are a relevant consideration.

73. >From the Respondent's evidence, it is clear that the business of operating cinemas has changed significantly over the last decade. In recent years, there has been a significant expansion in the number of "megaplexes", cinema complexes with sixteen screens or more (Mannswirth, T 287) in suburban and outer suburban locations. Mr Peter Cody, Group Film Buying and Programming Manager of the Respondent, gave evidence that the number of cinema complexes under the GUO banner has increased significantly over the last ten years because of the expansion in the number of megaplexes (which are typically built in suburban shopping precincts). He went on to say that, "the suburban expansion has been at the expense of the CBD cinemas". (Cody, T 392)

74. The financial performance of the Russell Cinemas has declined over recent years, as has the performance of GUO central city cinemas in Sydney, Brisbane, Adelaide and Darwin. In May and June 1999, the GUO closed a cinema in Pitt Street, Sydney, and the Sydney Stanmore cinema, due to their poor performance. (Exhibit 15, paras 2 - 6, and T 470)

75. While the financial performance of the Russell Cinemas has declined in recent years due to "the opening of the Casino, Jam Factory, Southland, Century City and other suburban multiplex cinemas" (Exhibit 15, para 2), the GUO is not contemplating a total redevelopment of the site, that is, an increase in the number of screens, to try and attract business back. This is because the site occupied by the Russell Cinemas is not considered a prime location for cinema exhibition, and because in the view of a witness for the Respondent, Melbourne is "over-screened". (Mr Bruce Yahl, T 472 - 473). However, Mr Yahl (a Director of the Respondent and Group Legal Counsel and Company Secretary of Amalgamated Holdings Limited) alluded to a strategic reason for the GUO to continue operating the Russell Cinemas: to ensure a Melbourne CBD screening presence so that certain arrangements with distributors could continue to be made. (Yahl, T 472 and L Robinson, T 399)

76. The GUO is a wholly-owned subsidiary of Amalgamated Holdings Limited. Mr Neil Merrin, National Operations Manager of the GUO, gave evidence that both the GUO and Amalgamated Holdings Limited are trading profitably (Merrin, T 484). So far as Amalgamated Holdings Limited is concerned, for the financial years of 1994, 1995, 1996, 1997 and 1998, it had operating profits after tax and abnormals of $16.5 million, $40.6 million, $38.1 million, $44.7 million and $47.4 million respectively (Exhibit D, p. 1). Amalgamated Holdings Limited has extensive interests in motion picture exhibition in cinemas and drive-in theatres; ownership of cinema, drive-in and office properties; operation of a film processing laboratory and post-production facility; supply of theatre and film laboratory equipment; operation of leisure facilities for adults and children; operation of hotels, motels, resorts, restaurants and investment in hotel properties; ownership and operation of Thredbo Alpine Resort; ownership and operation of Sydney Harbour cruising and ferry services; and investment in shares in various listed and unlisted companies (Exhibit D, p. 2). The structure of the Amalgamated Holdings Limited group is set out in the Employee Manual provided to GUO staff members (see pages 4 - 1 to 4 - 5 of Attachment CR1 to Exhibit 11).

77. Across Australia, the Respondent and a subsidiary, Birch Carroll and Coyle, operate some ninety-four cinema complexes. At all but four of these cinema complexes, wheelchair access is provided to all the theatres in each complex, or to a proportion of the theatres in each complex. It is only at four older-style cinema complexes, including the Russell Cinemas, that wheelchair access is an issue. (Yahl, T 473 - 475)

78. The Respondent does not have a policy or plan for improving access to, or in, its small number of older-style cinema complexes which do not provide for wheelchair access. (Yahl, T 473 and Merrin, T 482). If the Respondent were to decide to undertake a major renovation or redevelopment at one of its older sites, access for those in wheelchairs would be given appropriate attention (as is the case in the planning and building of new megaplexes). But in the absence of a major redevelopment at its older sites, the Respondent does not have a program for upgrading access arrangements.

79. Mr Hall-Bentick's complaint is one of indirect discrimination, as defined in section 9 of the EO Act, in the provision of services, pursuant to section 42(1) of the Act. Mr Hall-Bentick contended that he was subjected to discrimination:

* in that the Respondent refused to provide services to him (section 42(1)(a));

* in the terms on which the Respondent provided services to him (section 42(1)(b)); and

* in that the Respondent subjected him to a detriment in connection with the provision of services (section 42(1)(c)).

80. What were the services in question? Mr Hall-Bentick contended that the relevant services were:

* "provision of entertainment, recreation ..." ((b) of the definition of "services" in section 4, meaning the provision of films); and

* "access to and use of any place that members of the public are permitted to enter" ((a) of the definition of "services" in section 4, meaning access to the Russell Cinemas, including its theatres, ticketing facilities, kiosk and toilets).

81. The Respondent acknowledged that at all material times, Mr Hall-Bentick was a person with the attribute of "impairment" (within the meaning of that term in section 6(b) of the EO Act). The Respondent acknowledged that Mr Hall-Bentick is "capable of gaining vertical access to or within a building only if the building has a conventional lift, a stairway platform lift or a ramp". (Respondent's final submissions, dated 5 April 2000, para 31).

82. The first question for determination is whether the GUO subjected Mr Hall-Bentick to "indirect discrimination" as that term is defined in section 9(1). In addressing this question, one needs to consider the "requirement, condition or practice" which Mr Hall-Bentick put forward as the basis of his case. My understanding of the specific "requirement, condition or practice" which Mr Hall-Bentick put forward was as follows: to be able to see any of the films screening at the Russell Cinemas on the evening of Friday, 2 May 1997, a person needed to be able to get up stairs (and needed to be able to get down stairs).

83. Before considering the elements of indirect discrimination set out in section 9(1), I state that I accept Mr Hall-Bentick's evidence that when he approached the ticket counter at the Russell Cinemas on the evening of 2 May 1997 to enquire whether he could access the theatres in his electric wheelchair, he was told that he could not. I find that the person responding to Mr Hall-Bentick's enquiry made no mention of the possibility of Mr Hall-Bentick being able to access Theatre 2 or Theatre 3 by going down a laneway at the side of the building in his wheelchair (while an attendant opened one of the Russell Cinema's emergency exit doorways at the end of the laneway).

84. I make this finding because Mr Hall-Bentick impressed as a truthful witness throughout the lengthy period that he gave evidence. Mr Hall-Bentick was responsive to questions during cross-examination and answered in a direct manner.

85. I find that the person responding to Mr Hall-Bentick's enquiry made no mention of the possibility of Mr Hall-Bentick being able to access Theatre 2 or Theatre 3 via a laneway, notwithstanding the evidence of Mr Christopher Ryan, Assistant Manager of the Russell Cinemas. Mr Ryan doubted that a staff member would have given Mr Hall-Bentick incorrect information (that is, that no wheelchair access was possible at the Russell Cinemas) because of the way staff were trained about the need to assist patrons with disabilities. (T 312, 316 - 317 and 340 - 341).

86. It can be noted that the Greater Union Employee Manual (Att. CR1 to Exhibit 11) was designed for use by Greater Union employees employed at any Greater Union cinema. It does not contain any specific direction or advice about dealing with patrons in wheelchairs. The Tribunal was referred to documents used by Greater Union in training more senior staff. These documents referred to the need to ensure that patrons were not subjected to any discrimination (including on the basis of disability) and noted that patrons "who have mobility problems should be offered help". The Tribunal was not referred to any document which set out the procedures outlined by Mr Ryan for providing access for people in wheelchairs to the Russell Cinemas' Theatres 2 or 3 (that is, via a laneway with an employee opening an emergency exit at the end of the laneway to provide access).

87. It is perhaps regrettable that Mr Hall-Bentick did not ask the name of the ticket box attendant who was on duty at the relevant time. However, Mr Hall-Bentick gave evidence that it was busy when he approached the ticket box on the evening of Friday, 2 May 1997; that the attendant he approached did not indicate their name; and that he could not remember the attendant wearing a name-tag (T 60 and 117 - 118).

88. Given that I accept Mr Hall-Bentick's account of what happened when he visited the Russell Cinemas on the evening of 2 May 1997, has there been indirect discrimination?

89. Mr Hall-Bentick's case is that, because of indirect discrimination, the Respondent:

* Refused to provide him with a service, that being "entertainment" or "recreation", and

* Refused him "access to and use of any place that members of the public are permitted to enter", that being access to any of the theatres at the Russell Cinemas, and access to the male toilets.

90. Returning to consider the elements of indirect discrimination set out in section 9(1), I am satisfied that section 9(1)(a) and 9(1)(b) are made out. In short, Mr Hall-Bentick could not comply with the requirement that the Respondent imposed (to be able to ascend and descend stairs in order to access a theatre to see a film) whereas most people - who do not use wheelchairs - could comply with the requirement. The next question is whether the requirement was reasonable (in terms of section 9(1)(c), bearing in mind section 9(2)).

91. In my view, the requirement that intending patrons be able to get up stairs (and be able to get down stairs) to access relevant services was not reasonable. I have formed this view for the following reasons.

92. First, Victoria's equal opportunity legislation was amended in 1982 to include impairment as a ground of unlawful discrimination - in certain circumstances. During the 1980's and 1990's, the Russell Cinemas took some measures to assist patrons in wheelchairs but on the whole of the evidence, I find that the measures were not part of a coherent policy to improve access for people with mobility disabilities. Rather, the measures were patchy. The measures taken do, however, indicate a recognition by the Respondent of an obligation not to discriminate against those with impairments.

93. What were the measures taken by the Russell Cinemas to assist patrons in wheelchairs? There were three. First, in 1986, the Russell Cinemas bought a "stair tractor" (called a "Stairmate"), a mechanical device to carry a person in a wheelchair up and down stairs. Mr Mannswirth gave evidence about the Stairmate, and about the other two measures used to assist patrons in wheelchairs, as follows:

" ... We stopped using the Stairmate in March 1988 when an employee, Peter Wilkins, assisted a disabled patron up the stairs in the Stairmate which then toppled over. The patron rolled backward down the stairs and then landed on top of Mr Wilkins. The Stairmate was sent back to the manufacturer to see whether any adjustments could be made to increase its safety. No adjustments could be made. Accordingly the Stairmate was not used again due to safety concerns and union bans on its use.

For some time after the Stairmate ceased to be used, employees at Greater Union assisted patrons [in wheelchairs] to enter Cinemas 4, 5 and 6 by carrying them up the stairs. However this practice ceased due to occupational health and safety concerns.

Currently, the practice is to inform employees that there is limited access to Cinemas 2 and 3 via the laneways on either side of the Cinema. All employees at the Cinema are aware of the access that we have and are fully apprised of what must be said to patrons who make such enquiries. This information is reinforced to staff at all staff meetings". (Exhibit 4, paras 6 to 8).

94. Second, and this follows from the previous point, when the Stairmate stair tractor proved unsatisfactory, the Respondent's management was not proactive in surveying other options for providing access for people in wheelchairs. (Mannswirth, T 283 - 284). Options that might have been explored would have included the installation of a lift, the installation of stair platform lifts, and/or the installation of ramps.

95. On the evidence of Mr Anthony Robinson (Sales Manager of P R King, a firm specialising in the sale and installation of stair platform lifts, sometimes called "wheelchair lifts") who was called by Mr Hall-Bentick, stair platform lifts have been in existence for some fifteen to twenty years, with the oldest in Victoria being installed some twelve years ago at the Footscray Institute of Technology, and the second oldest being installed some ten years ago at Stawell Secondary College. (Photos of stair platform lifts appear in Exhibits H and J). Mr Robinson gave evidence that:

"Around Australia, probably just a round estimate, we would have about 500 units installed in various schools and Colleges. And to answer particularly to Melbourne we have installed the units at Crown Casino and the Village City Centre". (T 152)

96. Mr Robinson gave evidence that stair platform lifts can be retrofitted to buildings, and he gave Wilson Hall at Melbourne University as an example of a retrofit undertaken by his company (T 158).

97. Mr Robinson gave evidence that he was contacted by Ms Christine Bantos, the present manager of the Russell Cinemas, on 7 September 1999, and asked to assess whether stair platform lifts could be installed at the Russell Cinemas, and if so, the cost. Mr Robinson prepared a proposal for the Respondent (Exhibit K).

98. At this point, I do not express a view as to whether the Russell Cinemas should or should not have installed stair lift platforms to enable would-be patrons in wheelchairs to access the Theatres. The point is that the Respondent's management took no step, until September 1999, to explore the option of installing stair platform lifts (or other options such as the installation of ramps and/or the installation of a lift). The Respondent's inaction so far as exploring these possible options is concerned must be seen in the context of growing community awareness about the need to provide reasonable access to public places, public entertainment and events, for those with mobility disabilities.

99. I accept the evidence of GUO staff members that on occasions, they lifted patrons in wheelchairs up and down stairs, so the patrons could view films at the Russell Cinemas (for example, evidence of Mr Mannswirth, Exhibit 4, para 7).

100. I also accept evidence that in recent times, GUO staff members have assisted patrons with disabilities to enter the Russell Cinemas through a laneway (Mr Mannswirth's witness statement, Exhibit 4, para. 9; Mr Christopher Ryan's witness statement, Exhibit 11, paras. 9 - 12; and affidavit of Ms Bantos, paras. 4 - 6). However, as mentioned, I have found that Mr Hall-Bentick was not offered such access on the relevant occasion (that being on the evening of Friday, 2 May 1997). I make no comment on whether access via a laneway for a person confined to a wheelchair (such as Mr Hall-Bentick) would or would not meet the requirements of the EO Act. In the present context, the matter does not need to be addressed.

101. Third, while witnesses for the Respondent gave evidence - which I accept - that the financial viability of the Russell Cinemas has been in decline in recent years (due principally to the Jam Factory and Casino Cinemas attracting custom away from the Russell Cinemas), the costs of implementing measures at the Russell Cinemas to improve access for people in wheelchairs do not appear prohibitive, nor is the Respondent in financial circumstances which would prevent such expenditure.

102. The fact of the matter is that the Respondent undertook works at the Russell Cinemas on the eve of the hearing of this case to improve access for those with mobility disabilities, including those who use wheelchairs. The nature of the works undertaken on the eve of the hearing is considered in Part H of these Reasons. At this stage, it is sufficient to note that the works - costing some $66,750, a sum the Respondent is clearly able to bear - were not undertaken at an earlier stage in the history of the Russell Cinemas, even though they could have been.

103. In my view, on the evening of 2 May 1997, the Respondent discriminated against the Complainant by refusing to provide services to the Complainant, thus breaching section 42(1)(a) of the EO Act. The services that the Respondent refused to provide were:

* The provision of entertainment or recreation in one or more of the Russell Cinemas' theatres (that is, the experience of being able to view a film, which the Complainant wanted to do); and

* Access to and use of any place that members of the public are permitted to enter (that being access to one or more of the Russell Cinemas' theatres).

104. In my view, the Respondent also discriminated against the Complainant by refusing to provide services to the Complainant, that being access to the male toilets so that the Complainant could make use of them. Regarding this matter, Mr Hall-Bentick's evidence was that the aisle in the male toilets was not wide enough to allow him - seated in his wheelchair - to get near the toilets (Exhibit B, paras 3 and 4).

105. In these instances, discrimination occurred - in terms of section 9(1) of the EO Act - because Mr Hall-Bentick, a person confined to a wheelchair because of an impairment:

* could not comply with the requirement or condition that he be able to get up stairs (and get down stairs) in order to access the services;

* a higher proportion of people (without impairments) could get up the stairs (and could get down the stairs); and

106. In my view, the requirement was not reasonable because the Respondent could have remedied it, in whole or in part, through building renovations involving the installation of a lift, the installation of stair platform lifts and/or the installation of ramps (and in the case of the male toilets, through widening the entry aisle). In reaching the conclusion that the relevant requirement - that would-be patrons to the Russell Cinemas be able to negotiate stairs - was not reasonable, I have taken into account the matters set out in section 9(2).

107. It is important to state that discrimination occurred in this case not through action taken by the Respondent, but through the Respondent's inaction. The EO Act (in section 11(b)) provides for the possibility of discrimination occurring through a Respondent's omitting to act. Section 11(b) applies in the present case. So does section 10 which states that, "In determining whether or not a person discriminates, the person's motive is irrelevant."

108. Having formed the view that the Respondent has breached section 42 of the EO Act, the question arises whether an exception applies. If an exception applies, circumstances which would otherwise constitute unlawful discrimination will be excused.

109. The Respondent contended that if the Tribunal considered that unlawful discrimination had taken place, the exception set out in section 46 of the EO Act was relevant and would operate in the Respondent's favour. (See para 8 of the Respondent's final submissions, dated 5 April 2000).

110. It is for the Respondent to establish that the exception provided in section 46 can be made out in the present case. In effect, the Respondent has to establish that it (the Respondent) fits within one of two circumstances contemplated by section 46.

111. In considering the wording of section 46, it is clear that the GUO may refuse to provide services to Mr Hall-Bentick (as I have found it did on the evening of 2 May 1997), if the services would be required to be provided in a special manner because of Mr Hall-Bentick's impairment, and:

* the GUO cannot reasonably provide the services in that manner; or

* the GUO can only reasonably provide the services in that manner on more onerous terms than the GUO could reasonably provide the services to a person without Mr Hall-Bentick's impairment.

112. To provide Mr Hall-Bentick with access to films at the Russell Cinemas and with access to the male toilets, services will need to be provided to him in a "special manner" (the services being provision of entertainment and access to, and use of, any place that members of the public are permitted to enter.) However, the "special manner" that will be required - measures to enable Mr Hall-Bentick (in his wheelchair) to negotiate stairs on the way to and from a theatre, and to enable him to negotiate an aisle leading to the toilets in the Male toilets - are not of the kind that the GUO cannot reasonably provide (given the company's financial health). Nor can it be said, in my view, that the GUO can lawfully refuse to provide services to Mr Hall-Bentick in a special manner because of his impairment and because the GUO can only reasonably provide the services in that manner on more onerous terms than the GUO could reasonably provide the services to people not confined to wheelchairs because of impairment.

113. In considering whether section 46 operates so as to excuse the Respondent from that which will otherwise be discrimination under section 42, one is required to make a judgment as to whether the measures that the Respondent would need to implement to remove the discrimination are ones that the Respondent cannot reasonably undertake. In the present circumstances, my judgment is that the Respondent could have taken relatively straightforward "special measures" to ensure discrimination did not take place. In these circumstances, section 46 cannot and does not operate to excuse the GUO from contravening section 42.

114. Therefore, I have concluded that the Respondent did discriminate against the Complainant on the evening of 2 May 1997, and that the Respondent has not established that section 46 operates so as to excuse the unlawful discrimination.

H. Renovations and changed screening arrangements at the Russell Cinemas

115. On the eve of the hearing of this matter, the Respondent undertook renovations at the Russell Cinemas to improve access for those with mobility disabilities, including would-be patrons in wheelchairs such as Mr Hall-Bentick. The main components of the building works, undertaken during January and the early part of February 2000, were as follows:

* Smoothing of a step at the entry to the Russell Cinemas' building to enable independent access for people in wheelchairs to the ground floor foyer;

* Installation of an internal ramp, leading off the ground floor foyer, to provide access for people in wheelchairs to Theatres 2 and 3;

* Changes to some seating arrangements in Theatres 2 and 3 to enable access by patrons in wheelchairs and seating for people with disabilities; and

* Installation of a unisex toilet for use by people with disabilities (the toilet being located off the ground floor foyer.)

116. The building works had almost been completed when the Tribunal inspected the Russell Cinemas on the morning of the second day of the hearing, 3 February 2000. Evidence was given that the works cost some $66,750, were approved by Mr Bruce Yahl (Exhibit 19, para 7) on the basis of recommendations in a report prepared by Mr Emilio Savle of Access Design and Inspection Consultants Pty Ltd (Exhibit 17), and bearing in mind legal advice received regarding GUO's position (Yahl, Exhibit 19, para 6, and T 457). In evidence, Mr Yahl said that Greater Union had placed a requirement on the builder:

"That the work be carried out and completed prior to the commencement of this hearing ... The simple fact of the matter is that Greater Union spent $66,750 for a whole myriad of reasons not the least of which is that we wanted to put ourselves in a position where we could indicate to the Tribunal that Greater Union took the matter seriously and we were prepared and had indeed expended significant capital to provide access". (Yahl, T 461)

117. As well as undertaking building renovations to make Theatres 2 and 3 (and a toilet) readily accessible for patrons in wheelchairs, the Respondent decided to rotate all films screened at the Russell Cinemas through Theatres 2 and 3.

118. On 22 December 1999, Mr Peter Cody, Group Film Buying and Programming Manager for the Respondent and for Birch Carroll and Coyle, sent the following memo to those involved in the screening of films at the Russell Cinemas:

"Effective immediately could you please ensure that all films that open at The Russells screen either in Cinemas 2 or 3 before their season is terminated". (Attachment PAC 2 to Exhibit 12)

119. So long as the direction given in this memo is followed, and there is no reason to think it will not be complied with, all films screened at the Russell Cinemas will be shown - at some point during their screening life - in either Theatre 2 or 3. People in wheelchairs will therefore have an opportunity to view all films screened at the Russell Cinemas, when they are screened in Theatres 2 or 3.

120. The background to Mr Cody's directive is as follows. In general terms, when a new film arrives at the Russell Cinemas, it is screened first in one of the larger Theatres - Theatre 6 (seating capacity of 742) or Theatre 1 (seating capacity of 542) - to ensure maximum opportunities for people to see it, and thus maximum opportunities for commercial returns. As the popularity of a film that has opened in Theatre 6 or Theatre 1 wanes, it is rotated through the smaller Theatres at the Russell Cinemas, until such time as its screening life is terminated. Sometimes a popular film has to be moved from a large Theatre to a smaller one because important "new product" (that is, a new film) arrives and has to be screened in the largest Theatre. (Cody, T 378 - 381)

121. In the past, not all films have been rotated through Theatres 2 and 3. For example, from 31 December 1998 to 23 December 1999, sixty-two films were screened at the Russell Cinemas, twelve of which were not screened in Theatres 2 or 3 (Cody, Exhibit 12, para 4 and T 366). As mentioned, the new policy adopted by the Respondent - and evidenced by Mr Cody's memo of 22 December 1999 - will ensure that all films screened at the Russell Cinemas are rotated through Theatres 2 or 3. Films screened in Theatres 2 and 3 will be shown there for a minimum of one week - because changes to the program for screenings are made on a weekly basis (Cody, T 389 - 390).

122. As from 7 February 2000 (which date occurred during the course of the hearing), the Respondent's website commenced to display a wheelchair symbol next to films screening in Theatres 2 and 3 at the Russell Cinemas, to indicate the films screening in wheelchair-accessible Theatres (Cody, T 387). The Respondent's website is at www.greaterunion.com.au (click on "session times").

123. Mr Hall-Bentick questioned Mr Cody of the Respondent about how a would-be patron in a wheelchair - without access to the Internet - would find out if a particular film was screening in Theatre 2 or 3. Mr Cody said that the Respondent's newspaper advertisements provide a phone number which, when dialled, gives a pre-recorded message about films screening at the Russell Cinemas, and the times of screenings. When questioned by Mr Hall-Bentick, Mr Cody said the pre-recorded message does not indicate which films can be viewed in wheelchair-accessible Theatres at the Russell Cinemas, and that a would-be patron seeking information about whether a particular film was screening in a wheelchair-accessible Theatre would need to phone the Russell Cinemas direct. In response to further questions from Mr Hall-Bentick, Mr Cody said that the Respondent's newspaper advertisements do not include the telephone number of the Russell Cinemas, and that a would-be patron would have to find out the telephone number of the Russell Cinemas some other way, or visit the Russell Cinemas to find out which films were being screened in its wheelchair-accessible Theatres.

124. Did Mr Hall-Bentick consider that the measures undertaken by the Respondent to provide access to would-be patrons - including himself - were sufficient? The answer is no, for the following four reasons.

125. First, and this is the principal reason, Mr Hall-Bentick considered it unsatisfactory that he would only be able to see popular films screened at the Russell Cinemas once their popularity (and commercial success) was on the wane. The Respondent's Mr Cody gave the following evidence:

"When a film goes into release invariably it is most popular in ... the earlier part of its release, therefore in order to allow our patrons to take advantage of that release you would put it into the bigger cinema, therefore giving you the ability to gross the most amount of money". (T 378)

126. Later in his evidence, Mr Cody acknowledged that Mr Hall-Bentick would be able see films in Theatres 2 or 3 only when the films were no longer commercially viable in one of the Russell Cinemas' larger Theatres. (Cody, T 385). Mr Hall-Bentick considered this situation unsatisfactory. In response to a question I asked ("... does it really matter to you ... if you see a film that you want to see, say six weeks or eight weeks, or ten weeks after it's first released ...?"), Mr Hall-Bentick said:

"It is an issue ... I mean socially when we're talking to our friends, to our work colleagues, I mean we talk about what we've done on the week-end, or where we've been and you know if people are talking about and do talk about, `well I went and saw this film, it's really good, you should go and see it', and if I've got to feel as though well, yes, I'd love to see that film but I've got to wait five, ten, twenty weeks before I could see that if I'm in the City. You do feel socially apart from those other people. I mean we talk about integration, I mean one of the things about integration is being able to talk to people about common interests. So that you know leisure activities such as going to the movies is quite often the topic of discussion. So, you know generally if you've got to wait a long time ... I mean I don't like people telling me about the film, and what's happened, and if you've got to wait ... quite a long time, I mean generally it's so many people that have told you so many bits and pieces that the surprising bits are no longer a surprise". (T 142 - 143, and see also T 121 - 122)

127. The second reason why Mr Hall-Bentick was not satisfied with the Respondent's arrangements to screen all films at the Russell Cinemas in Theatres 2 or 3 was that these Theatres have smaller screens. In Mr Hall-Bentick's view, a smaller screen detracts from the experience of going out to see a film, especially if the film is a science fiction film such as Independence Day. (T 143). Mr Hall-Bentick said:

" ... is it reasonable for me to expect that if someone without a disability can get a ticket to go to see cinema ... 6, that I must accept a lesser experience by going into a smaller cinema. That's the point I make". (T 149, and see T 67 and T 143 - 144)

128. Mr Cody gave evidence that the width of a standard cinema screen is approximately ten metres and that a "megascreen" would be approximately fifteen metres wide. On this basis, as acknowledged by Mr Cody, Theatres 1, 5 and 6 at the Russell Cinemas would be considered to have standard-sized screens or better, whereas Theatres 2, 3 and 4 would be considered to have screens below standard size. (T 396 - 397). The screen sizes at the Russell Cinemas are set out in para. 69 above. Mr Hall-Bentick considered it unsatisfactory that the Theatres at the Russell Cinemas that were going to have all films rotated through them were ones with smaller screens, providing - in Mr Hall-Bentick's view - an inferior viewing experience.

129. The third reason why Mr Hall-Bentick was not satisfied with the Respondent's new arrangements was that Theatres 2 and 3 do not have the best sound systems that the Russell Cinemas can offer. Therefore, in Mr Hall-Bentick's view, the experience of hearing a film's soundtrack in Theatres 2 or 3 would not be as good as hearing it in one of the Russell Cinemas' large theatres (T 67 and 143 - 144). This matter was touched upon during the hearing, rather than pursued at any length. The evidence of Mr Mannswirth that the Russell Cinemas' Theatres either have Dolby sound or Dolby Digital is noted. Mr Mannswirth said that the (superior) Dolby Digital system is generally used in Theatre 6, but that the other two Dolby Digital processors can be moved between the other Theatres, depending on the films being shown. (Para 70 above).

130. The fourth reason is that Mr Hall-Bentick had concerns - as outlined above - about how a person in a wheelchair, who did not have access to the Internet, would find out which films were screening in Theatres 2 and 3, the Theatres with wheelchair access.

131. It can be noted that the action taken by the Respondent to improve access at the Russell Cinemas for those with mobility disabilities did not include measures to address two issues raised by Mr Hall-Bentick in his Particulars of Complaint: the need for the Respondent to "provide a self-opening front door" and the need to "lower the ticket selling booth". In the Access Audit produced by Access Design and Inspection Consultants Pty Ltd at the request of the Respondent, action was recommended to address both these matters (Exhibit 17, pages 2 and 3).

132. Given that I have found that the Respondent subjected the Complainant to unlawful discrimination when the Complainant visited the Russell Cinemas on the evening of Friday, 2 May 1997, what orders are appropriate?

133. As outlined above in Part H, the Respondent took action on the eve of the hearing of this case to improve access at the Russell Cinemas for those with mobility disabilities, including people confined to wheelchairs such as Mr Hall-Bentick. The action taken by the Respondent goes a considerable way towards remedying the circumstances which gave rise to the finding of unlawful discrimination. But further measures are needed. What are they?

134. In my view, it is not sufficient for the Respondent to rotate all films screened at the Russell Cinemas through Theatres 2 and 3, the wheelchair-accessible Theatres. The Respondent's evidence was clear that films will generally be rotated through Theatres 2 and 3 when their popularity (and commercial potential) are declining. In such circumstances, Mr Hall-Bentick will not be able to see popular films screening at the Russell Cinemas when most people are viewing them, that is, early in the films' screening lives. This means that Mr Hall-Bentick will not be able to share the enjoyment of seeing and discussing popular films shown at the Russell Cinemas when most other people are viewing them and discussing them.

135. In the present circumstances, it is not sufficient for the Respondent to provide physical access to Theatres 2 and 3 to view films rotated through these Theatres (towards the end of the films' screening lives). The timing of the access is equally important.

136. The exact form of the Orders that will be made is reserved. However, I propose to make three Orders. Taking each Order in turn, I will outline the rationale behind the Order and provide a draft Order. Oral submissions on the form of the draft Orders will be invited, on a date to be set. I also propose to invite oral submissions on the question of whether costs (being Mr Hall-Bentick's out-of-pocket expenses) should be awarded to Mr Hall-Bentick against the Respondent.

137. The rationale behind the first draft Order is as follows. The Respondent's decision to rotate all films through Theatres 2 and 3 goes a considerable way towards improving Mr Hall-Bentick's access to films shown at the Russell Cinemas. However, it is important that the Respondent provide Mr Hall-Bentick with access to the films shown at the Russell Cinemas when Mr Hall-Bentick wants to see them - and not just when they are losing popularity (which is when films are rotated through the wheel-chair accessible Theatres, Theatres 2 and 3.)

138. One option is for the Respondent to provide access for people in wheelchairs to Theatres 1, 4, 5 and 6 at the Russell Cinemas, the Theatres which are not accessible to people in wheelchairs. Such access could be provided by lift(s), stair lift platform(s) and / or ramp(s).

139. A second option is for the Respondent to continue to rotate all films shown at the Russell Cinemas through Theatres 2 or 3 for a minimum of one week, and to also screen for several times per week in Theatres 2 and 3 the films then showing in the two largest Theatres (Theatres 6 and 1). For example, if a new film opened in Theatre 6 and had an eight week season in Theatre 6 before being rotated through the Russell Cinemas' smaller Theatres, the proposal is that it be screened four times per week in Theatre 2 or Theatre 3 during the eight week period that it is screening in Cinema 6. This would provide people in wheelchairs such as Mr Hall-Bentick with an opportunity to see the film while it is at the height of its popularity. This approach makes use of "sharing" which Mr Cody referred to in his evidence as "... running two films in the one auditorium at alternate session times." (T 393 - 394)

(i) make Theatres 1, 4, 5 and 6 accessible to Mr Hall-Bentick, a person confined to a wheelchair, through the installation of a lift(s), stair platform lift(s) and/or ramp(s), or a combination thereof - the Theatres to be made accessible within six months of the date of the order; or

(a) continue to rotate all films shown at the Russell Cinemas through Theatres 2 or 3 for a minimum of one week; and

(b) during each week that a film screens in Theatre 1 or Theatre 6, screen the same film for a minimum of four times per week in Theatre 2 or Theatre 3 - this new arrangement to commence within one month of the date of the order.

2. That in paragraph 1(ii)(b), the term "for a minimum of four times per week" shall mean not less than:

* One Saturday or Sunday "day" screening (i.e. concluding before 6 p.m.);

* One Friday, Saturday or Sunday "evening" screening (i.e. commencing after 6 p.m.);

* One Monday to Friday "day" screening (i.e. concluding before 6 p.m.); and

* One Monday to Thursday "evening" screening (i.e. commencing after 6 p.m.).

141. The rationale behind the second draft Order is to ensure that the Respondent takes adequate measures to inform Mr Hall-Bentick, a person confined to a wheelchair, about the screening times for films shown in wheelchair-accessible Theatres at the Russell Cinemas.

142. If the Respondent makes Theatres 1, 4, 5 and 6 at the Russell Cinemas wheelchair-accessible, publicising the fact that all Theatres are wheelchair-accessible will be relatively straightforward. If the Respondent decides to act in accordance with (draft) order 1(ii) in Para. 140, publicising its arrangements will require more attention.

1. In the event that the Respondent makes Theatres 1, 4, 5 and 6 wheelchair-accessible, that the Respondent advertise - in the course of its normal advertising - that all Theatres at the Russell Cinemas are wheelchair-accessible.

2. In the event that the Respondent decides to act in accordance with (draft) order 1(ii) in Para. 140, that the Respondent advertise - in the course of its normal advertising - the films screening in wheelchair-accessible Theatres and the screening times.

144. The rationale behind the third draft order is to ensure that the counter at the ticket box is modified so that Mr Hall-Bentick, a person confined to a wheelchair, can buy tickets in a practical and dignified manner.

That the Respondent lower one part of the counter at the Russell Cinemas' ticket box (as recommended in the Access Report, Exhibit 17, p. 3).

146. I note that I make no (draft) order requiring entry doors at the main entrance to the Russell Cinemas to be left open (when the Russell Cinemas are open for business) or that "automatic openers" be installed (as recommended in Exhibit 17, p. 3). I make no (draft) order regarding this matter because of the way Mr Hall-Bentick formulated the "requirement, condition or practice" for the purposes of section 9(1) of the EO Act. As stated in Para. 16 of these Reasons, Mr Hall-Bentick said the relevant requirement was that to see films at the Russell Cinemas, a person needed to be able to get up stairs (and get down stairs). Given this formulation of the requirement for the purposes of section 9(1), it is not appropriate to make a (draft) order regarding the entry doors.

147. A member of the Tribunal registry will contact the parties to arrange a date for the hearing of oral submissions on the draft orders.

148. A decision regarding Mr Hall-Bentick's claim for costs (being out-of-pocket expenses) is reserved. On the date set for hearing oral submissions regarding the draft Orders:

* Mr Hall-Bentick will be invited to substantiate his claim for costs (being for out-of-pocket expenses) and to make oral submissions as to why he considers he should be awarded costs (bearing in mind the terms of section 109 of the Victorian Civil and Administrative Tribunal Act 1998); and

* The Respondent will be invited to make oral submissions in response.

149. In his final written submissions, Mr Hall-Bentick claimed substantial monetary compensation if the Tribunal found in his favour. Given Mr Hall-Bentick's answer to my direct question on the first day as to whether he was seeking an award of money (the answer being no; see para. 49 above), I consider that it would not be fair in all the circumstances (especially to the Respondent) to entertain Mr Hall-Bentick's belated claim for compensation. I therefore do not do so.