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[2020] QCAT 23
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2020-01-23
Original judgment source is linked above.
HUMAN RIGHTS - DISCRIMINATION LEGISLATION - DIRECT DISCRIMINATION - INDIRECT DISCRIMINATION - whether applicant had an impairment and relied on an assistance dog - where applicant evicted for having a dog in breach of "no pets" term in lease - whether complainant treated less favourably than other Medi-Aid tenants who did not rely on an assistance dog - whether "no pets" term constituted indirect discrimination - whether term imposed with which a higher proportion of people without applicant's impairment comply or are able to comply being a requirement which is not reasonable having regard to the circumstances of the case and with which applicant not able to comply - whether contravention of ss 83 or 85 of the Anti-Discrimination Act 1991 (Qld)
Anti-Discrimination Act (Qld), , , , , , , , , , , Schedule
Guide, Hearing and Assistance Dogs Act 2009 (Qld), s 12A, Schedule 4
Catholic Education Office v Clarke [2004] FCAFC 197
Forest v Queensland Health, State of Queensland [2006] FCA 352
Hurst and Devlin v Education Queensland [2005] FCA 405
Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130
Qantas Airways Ltd v Christie (1998) 193 CLR 280
Queensland (Queensland Health) v Forest [2008] FCAFC 96; (2008) 168 FCR 532
Reurich v Club Jarvis Bay Ltd [2018] FCA 1220
State of Queensland v Mahommed [2007] QSC 18
Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349
Woodforth v State of Queensland [2017] QCA 100
Self-represented, assisted by Dr Christine Jeakings
G Rebetzke, of counsel instructed by Bell Legal Group
[1] This matter concerns whether Marjorie Jackson was discriminated against because she had an impairment and relied on an assistance dog. In short, Marjorie alleges she was forced to leave her rental accommodation at Seacrest Apartments, Main Beach because the landlord, Medi-Aid, had a "no pets" policy. Whether Marjorie had an impairment was not in issue. The main issues in dispute were whether Marjorie's dog, Muffin, was an "assistance dog" within the meaning of the Anti-Discrimination Act 1991 (Qld) (ADA) and, if she was, whether Marjorie was required to leave her accommodation because she had an impairment and relied on an assistance dog.
[2] Marjorie was diagnosed with chronic depression, anxiety and post-traumatic stress disorder in August 2012, conditions which she developed as a consequence of "losing everything" in the global financial crisis.
[3] Marjorie and her husband, Kevin, were tenants of Medi-Aid at Seacrest between 25 June 2014 and 8 December 2017. Medi-Aid is a registered charity that provides assistance to the disadvantaged elderly by providing low rental accommodation in desirable areas.
[4] Marjorie consulted a Dr Pran Lal in May 2017. Dr Lal suggested that she obtain an assistance dog to help alleviate her symptoms of depression and anxiety. Marjorie made enquiries as to which breeds were best for this purpose and ultimately purchased "Muffin", a cavoodle. Marjorie's daughter helped to pay for Muffin.
[5] On 14 August 2017 Marjorie attended the offices of Ocean Blue. There is a dispute about what was said on that occasion. It is agreed that Marjorie was carrying Muffin in a carrier. Marjorie said that she went to the office in order to have her lease amended so that she could keep Muffin. Marjorie says she was told dogs were not permitted under the terms of the lease. She claims then to have said that Muffin was an assistance dog but that George Georgiou, a director of Ocean Blue, had responded to the effect that "even if you need a seeing eye dog you would be out of the unit".
[6] The next day, on 15 August 2017, Kevin Jackson attended the offices of Ocean Blue. He objected to his wife not being allowed a dog. George and Wendy Georgiou gave evidence that he said, in effect, that "every little old lady should be allowed to have a dog". He was told again that dogs were not allowed.
[7] On 9 October 2017 a Notice to Remedy Breach was issued to the Jacksons giving them until 23 October 2017 to remedy the breach. The breach alleged was that in contravention of tem 17.1 and condition 24(1) of the tenancy agreement, the Jacksons were keeping a dog on the premises and further, that it had been reported that the dog had soiled the carpets in the common area and was a nuisance. On 24 October 2017 Wendy Georgiou and Sylvia Martin inspected the Jackson's unit. They saw Muffin in the unit.
[8] The Jacksons denied that Muffin had soiled the carpets and gave evidence that around the time the alleged complaints were made, Muffin was away with the Jacksons on a three week caravan holiday.
[9] On 26 October 2017 a Notice to Leave was issued to the Jacksons requiring them to vacate Seacrest by 29 January 2018. The Jacksons vacated on 8 December 2017.
[10] Section 208 of the ADA provides that the tribunal is not bound by the rules of evidence and, relevantly, 'must have regard to the reasons for the enactment of this Act as stated in the preamble'. Relevantly, the Preamble provides that 'the Parliament considers everyone should be equal before and under the law and have the right to equal protection and equal benefit of the law without discrimination' and that 'the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone'.
[11] Section 6 of the ADA provides that the objects of the Act are (inter alia) to 'promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including accommodation...'. The principle that requires the provisions of an Act to be read in light of its statutory objects is 'of particular significance in the case of legislation which protects or enforces human rights'.[1]
[12] The ADA meets its objects by prohibiting discrimination on a ground in s 7, of a type in s 10 (direct discrimination) or s 11 (indirect discrimination), and in certain areas of activity, which include accommodation.[2]
[13] Here, the relevant ground is 'impairment'.[3] 'Impairment' is defined to mean relevantly:
...
(d) a condition, illness or disease that impairs a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; or
....
(f) reliance on a guide, hearing or assistance dog, wheelchair or other remedial device;
whether or not arising from an illness, disease or injury or from a condition subsisting at birth, and includes an impairment that -
(g) presently exists; or
(h) previously existed but no longer exists.
[14] The parties proceeded on the basis that the relevant ground was 'impairment'. Marjorie gave the following evidence concerning her impairment:
I suffer from depression and anxiety. I take prescribed medication for this psychiatric disability which is linked to Post Traumatic Stress and dates back to the Global Financial Crisis. We lost our family home and our whole life's working and savings. This disability causes me to suffer memory loss, nightmares, and confusion.[4]
[15] Marjorie's diagnosis of depression and anxiety is confirmed by letters from Dr Lal[5] and Dr Ilian Kamenoff. I am satisfied based on this diagnosis that Marjorie has an 'impairment', depression and anxiety being conditions or illnesses that impair a person's thought processes, perception of reality, emotions or judgment. Marjorie, for reasons below, also comes within the limb of the definition which extends "impairment" to reliance on an assistance dog. This limb of the definition of impairment (limb (f)) has the effect that the ADA applies to reliance on an assistance dog in the same way it applies to having an impairment. It also has the effect, in my view, that reliance on an assistance dog cannot be considered part of the comparator or the material circumstances for the purposes of direct discrimination.[6]
[16] The ADA prohibits two types of discrimination: direct discrimination and indirect discrimination.[7]
[17] Direct discrimination happens if a person treats a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.[8]
[18] Indirect discrimination is defined in s 11. Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose a term -
(a) with which a person with an attribute does not or is not able to comply; and
(b) with which a higher proportion of people without the attribute comply or are able to comply; and
(c) that is not reasonable.
[19] Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example -
(a) the consequences of failure to comply with the term; and
(c) the financial circumstances of the person who imposes, or proposes to impose, the term.[9]
[20] It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.[10]
[21] Section 11 has been described as, in effect, a deeming provision, in the sense that if the elements of the section are satisfied, discrimination on the basis of a person's impairment is taken to have occurred. The complainant must prove on the balance of probabilities that the respondent contravened the Act, subject to the requirements of s 205.[11]
[22] Section 83 of the ADA provides:
83 Discrimination in accommodation area
A person must not discriminate against another person -
(a) in any variation of the terms on which accommodation is supplied; or
(b) in denying or limiting access to any benefit associated with the accommodation; or
(c) in evicting the other person from the accommodation; or
(d) by treating the other person unfavourably in any way in connection with the accommodation.
[23] Section 85 of the ADA provides:
85 Discrimination by refusing to allow guide, hearing or assistance dog
(1) A person must not discriminate by doing any of the following -
(a) refusing to rent accommodation to another person because the other person has an impairment and relies on a guide, hearing or assistance dog;
(b) requiring the other person to keep the dog elsewhere;
(c) requesting or requiring the other person to pay an extra charge because the dog lives at the accommodation.
(2) This section does not affect the liability of the person with the dog for any damage caused by the dog.
[24] "Accommodation" includes a house or flat.[12] In my view, a flat includes a unit.
[25] The following issues arise:
- (a) Was Muffin an 'assistance dog';
- (b) Was there direct discrimination;
- (c) Was there indirect discrimination;
- (d) Did the respondents discriminate against Marjorie in evicting her from the accommodation;
- (e) Did the respondents discriminate by 'refusing to rent accommodation' to Marjorie because she had an impairment and relied on an "assistance dog".
[26] The ADA was amended in 2009 by the Guide, Hearing and Assistance Dogs Act 2009 (Qld) (Guide Dogs Act) to extend the protections against discrimination that already existed for a person who relied on a guide dog or hearing dog, to a person who relied on an "assistance dog".[13]
[27] "Assistance dog" is defined in the Schedule to the ADA to have the meaning given by the Guide Dogs Act, Schedule 4 which defines "assistance dog" as follows:
"assistance dog" means a dog trained to perform identifiable physical tasks and behaviours to assist a person with a disability to reduce the person's need for support.
[28] It is an offence under the Guide Dogs Act for a person exercising control of a place of accommodation to refuse to rent accommodation at the place to an accompanied handler because the accompanied handler would be accompanied by a certified guide, hearing, assistance or trainee support dog.[14] An "accompanied handler" is broadly defined to include a person with a disability who is accompanied by a certified assistance dog; an alternative handler who is accompanied by the primary handler and the primary handler's certified assistance dog; or an approved trainer, employee trainer or puppy carer who is accompanied by an assistance dog or trainee support dog.[15] There is a defence if the accompanied handler did not comply with the identification procedure when he or she arrived at the place of accommodation to begin residing at the place.[16]
[29] The Guide Dogs Act therefore clearly distinguishes between a 'certified assistance dog', an 'assistance dog' and a 'trainee support dog'. A 'certified guide, hearing or assistance dog' is defined to mean a guide, hearing or assistance dog certified under part 4.[17] A 'certified assistance dog' is one which has been certified as an assistance dog by an approved assistance dog trainer and satisfies the requirements in s 38(a) -(e), which includes having passed a "public access test". A 'trainee support dog' is defined to mean "a dog that is being trained by an approved trainer or approved training institution to be a guide, hearing or assistance dog".
[30] "Impairment" is defined in the ADA to include a person who relies on an "assistance dog". Section 85 of the ADA prohibits discrimination by refusing to rent accommodation to a person because he or she has an impairment and relies on an 'assistance dog'. There is no requirement that the dog be certified. Unlike the provisions in the Guide Dogs Act which create an offence for refusing to rent accommodation to a person with a disability because they would be accompanied by a certified assistance dog, the ADA prohibits discrimination by refusing to rent accommodation because the person has an impairment and relies on an assistance dog. That the requirements are less stringent for assistance dogs under the ADA is understandable. The Guide Dogs Act creates an offence whereas the ADA aims to ensure persons with an impairment are not discriminated against because, relevantly, they have an impairment and rely on an assistance dog.
[31] I note that the Disability Discrimination Act 1992 (Cth) (DDA) extends the definition of an "assistance dog" to include dogs not certified but that are "trained to assist a person with a disability to alleviate the effect of the disability; and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.[18] The rationale for including such dogs is set out in the Explanatory Memorandum:
The purpose of this amendment is to provide greater certainty to both service providers and people with assistance animals. The third limb of the definition (paragraph 9(2)(c)) is designed to ensure that people with disability who may not live in a State or Territory that has a relevant accreditation scheme, or who may not have access to a recognised assistance animal trainer continue to be protected under the Disability Discrimination Act (if they are able to demonstrate the requirements of the relevant sections).
[32] The definition for the purposes of the ADA does not, in my view, require that the dog be a "certified" assistance dog. It does however require that the dog be trained to perform identifiable physical tasks and behaviours to assist a person with a disability to reduce the person's need for support. The word "trained" in the context of the DDA definition (s 9(2)(c)) has been held not to require training by an accredited or recognised dog training body. In Mulligan v Virgin Australia Airlines Pty Ltd[19] the Full Court of the Federal Court held:
...the evidence concerning training took no account of the proper construction of the word "trained" in s 9(2)(c) and, in particular, that the training for the purpose of that provision need not be training by an accredited or recognised dog training body. On this matter, we accept the AHRC's submission (see [68] above) that the word "trained" in s 9(2)(c) should be given its ordinary meaning and does not require training by an accredited or recognised dog training body, an approach which is supported by Collier J's decision in Forest v Queensland Health [2007] FCA 936 at [92] and noting that this aspect of her Honour's judgment was not taken on appeal to the Full Court...
[33] This approach was recently cited with approval in Reurich v Club Jarvis Bay Ltd.[20]
[34] There is no definition of "trained" in the ADA. In my view, in the absence of any definition, the word "trained" in the definition of "assistance dog" should be construed similarly to the word "trained" in the DDA to be given its ordinary meaning which includes "to discipline and instruct to perform specified actions" and not to require training by an "approved trainer" or "approved training institution". This does not obviate the need to demonstrate that the dog in question has been trained to do identifiable physical tasks and behaviours to assist to reduce a person's need for support. As Spender and Emmett JJ observed in Queensland (Queensland Health) v Forest[21] in considering the meaning of "trained to assist...to alleviate the effects of ...disability":
The question is whether (the dogs) had been trained to assist Mr Forest to alleviate the effects of a disability. The question is not whether the dogs do in fact assist Mr Forest to alleviate effects of a disability but whether they were trained with that purpose or object in mind.[22]
[35] Based on the evidence before me, when viewed cumulatively, I am satisfied that as at 26 October 2017, the date of the Notice to Leave, Muffin was an "assistance dog" for the purposes of s 85 of the ADA. I have arrived at this finding in the context of the following background:
(i) Marjorie had been specifically advised by her doctor to obtain an "assistance dog" to alleviate symptoms of her psychiatric condition.
(ii) After researching which breeds would be most appropriate for this purpose, Marjorie decided that a cavoodle would have the ideal temperament to be trained as an "assistance dog". Muffin, a cavoodle was therefore specifically purchased with a view to training her to be an "assistance dog".
(iii) Before purchasing a cavoodle Marjorie had been advised by her daughter to research the legal position regarding "assistance dogs" and to approach the body corporate to obtain its permission to have an "assistance dog". Marjorie did some research on the internet about "assistance dogs" and on 26 June 2017 went to see David Zhang, the body corporate caretaker at Seacrest, to ask how she might go about obtaining permission to keep an 'assistance dog'. David suggested she attend the body corporate committee meeting the next day and put her request in person to the meeting. Marjorie attended the meeting and handed the Chairman her typed application (in the form of a printed email)[23] and information she had printed about assistance dogs from the Department of Communities, Child Safety and Disability Services website.[24] Marjorie gave evidence, which I accept, that the Chairman read out her application at the meeting and said, in effect, "I am familiar with the Guide, Hearing and Assistance Dogs Act. We can't refuse the application".[25]
(iv) Only after that, sometime in July, did the Jacksons purchase Muffin.
(v) Muffin attended the Ashmore Puppy School from 22 July 2017 to 26 August 2017. During this time Muffin learnt how to "socialise with other dogs and people, to sit, drop, stand, recall, walk on leash" and to engage with Marjorie.[26]
(vi) On 17 August 2017, during the puppy school training, Marjorie applied to MindDog to enrol Muffin in its psychiatric service dog training program and paid a $150 deposit. Part 2 of that formal application is required to be completed by a medical practitioner setting out the applicant's medical diagnosis and whether, in the doctor's opinion that constitutes a "disability" within the meaning of the DDA and how the doctor expects a "MindDog" could assist the patient. Dr Lal completed that part of the application on behalf of Marjorie.[27]
(vii) Marjorie obtained an "assistance dog" bandana and other equipment in the mail from a supplier in Esk and commenced the 6 week MindDog "house training course" with Muffin in early October. Gayl O'Grady of MindDog did a home consultation with Marjorie and Muffin in October 2017. Marjorie was required to work through the "3 monthly training goals herself"[28] and complete her 6 month training sheets which were then to be filed by MindDog.[29]
(viii) Marjorie paid for and received an assistance dog training vest for Muffin on 12 December 2017.
[36] I accept the submissions of the applicant that Muffin had been trained to do physical tasks and behaviours which had assisted Marjorie in reducing her need for support. I accept Marjorie's evidence that Muffin was able to sense when Marjorie was upset or anxious and had been trained to jump up on Marjorie's chest to distract or comfort her which helped reduce anxiety and avoid panic attacks. This would include when Marjorie would awaken at night due to nightmares. More generally, Muffin had been trained to be a loyal and obedient companion to Marjorie and could respond to basic commands. The fact that part of this training was by Marjorie does not make it irrelevant for the purposes of the definition. In contrast to a person with a physical impairment, Muffin could assist Marjorie simply by her steady presence and companionship. Although the manifestation of this training is not as readily identifiable as, for example, a dog trained to close a door for someone physically impaired, it does not mean that Muffin's attentiveness and engagement with Marjorie was not a learned physical behaviour that reduced Marjorie's need for support.
[37] I am also satisfied that the above tasks and behaviours assisted Marjorie to reduce her need for support. Marjorie gave evidence to the effect that she would become calmer and much more relaxed when Muffin was with her. She was also more active and more inclined to go out. Marjorie said that prior to acquiring Muffin she had avoided public places and that if she did go out she always needed her husband, Kevin, to accompany her. Since acquiring Muffin, and having undergone some training with her, Marjorie said she would go out with Muffin and could visit coffee shops and other local shops which she had previously avoided because it would make her anxious. As a result of Muffin she was able to go to those places without Kevin. After hearing Marjorie's evidence I was persuaded that Muffin had formed a close bond with Marjorie, that she had been trained to engage with and to respond to Marjorie, and that Marjorie's symptoms had improved greatly as a result. This in turn had had the effect of reducing Marjorie's need for support.
[38] I note that at the time the Notice to Leave was issued, Muffin had not completed her training with MindDog. I do not consider that this prevents me from finding that Muffin satisfied the requirements of the ADA definition. For the reasons above, the definition does not prescribe a particular level of training beyond that it "assist" in reducing the need for support. As I have already found, Muffin had been relevantly and effectively trained to learn tasks and behaviours which had assisted in reducing Marjorie's need for support. In any event, the requirements to qualify as an "assistance dog" must be read liberally given that the ADA is remedial legislation and must be read with the objects of the legislation in mind.
[39] I turn now to consider whether there has been direct discrimination or indirect discrimination.
[40] The ADA prohibits discrimination on a ground in part 2; of a type in part 3 and in an area of activity in part 4. Here the relevant ground is impairment in s 7(h).
[41] The issue then is to define the comparator. This is a difficult issue and can determine the outcome of a direct discrimination complaint.
[42] The comparator is a person who does not have the relevant attribute, which includes any characteristics that a person with that attribute generally has.[30] Whether, therefore, Marjorie's impairment is considered to be her mental illness or her reliance on an assistance dog, being accompanied by an assistance dog could not, in my view, form part of the description of the comparator for the purposes of s 10.
[43] In my view, the comparator would be a person who rented unit 8C at Seacrest from Medi-Aid but who did not rely on an "assistance dog".
[44] The further issue arises as to how to define the "circumstances that are the same or not materially different" for the purposes of s 10. In my view, it would be to undermine the protected attribute of "reliance on an assistance dog" to define the circumstances so as to include a person who wishes to keep a dog on the premises. It might be argued however, that the circumstances would extend to a person who had been responsible for damaging the carpets in the common area (as the respondents alleged). Even if I was to accept that argument, I do not consider that a person in those circumstances would have been issued with a Notice to Leave. There was certainly no evidence that this would have been the case.
[45] Clearly, Marjorie was treated less favourably than a person without an assistance dog would have been treated as that person would not have been required to leave Seacrest. The issue then arises as to whether the discrimination occurred "on the basis of" the attribute. The respondents submitted that this required at least knowledge of the attribute and that they did not know Marjorie's dog was an "assistance dog". This was an important issue to the parties. The respondents gave evidence to the effect that they were never informed that Marjorie's dog was an "assistance dog". They described Muffin as a "rescue dog" in correspondence to the landlord. However, Mr David Zhang, the body corporate manager, in response to questioning by the Tribunal, gave clear and emphatic evidence to the effect that he had told Sylvia Martin and Wendy Georgiou at Ocean Blue that Marjorie's dog was an "assistance dog" and that they were aware she was seeking permission to keep an "assistance dog". Although Mr Zhang later changed his evidence after an application was made to declare him a hostile witness, I accept his earlier evidence. I also accept Marjorie's evidence to the effect that on 14 August 2017 she took Muffin in a container to Ocean Blue and told George Georgiou she had been given permission by the body corporate to keep an assistance dog and that he had stretched out his hand, pointed his finger at her and said words to the effect:
You shouldn't have done that love cause even if you were a tenant and needed a seeing eye dog you wouldn't have a unit.
[46] I also note the Minutes of the Body Corporate Meeting of 27 June 2017 in which it is recorded under item 18 "other matters arising":
18.1 Request for Assistance Dog application
The committee noted the request submitted to keep an assistance dog within a lot.
RESOLVED the application be accepted and John Punch is to provide the body corporate with a list of requirements to be adhered to by the applicant.
VOTING: YES 6 No 0 ABSTAIN 0 ACTION: JOHN PUNCH
The Minutes were sent under cover of a letter dated 11 July 2017 to all owners in Seacrest, including Medi-Aid.
[47] Further, in correspondence to the RTA on 10 October 2017 Kevin Jackson refers to a phone call the previous Friday to the RTA regarding a "breach remedy for having an Assistance registered dog passed by Body Corporate" (emphasis added).
[48] A Notice to Leave for having a dog was issued on 26 October 2017.
[49] In all the circumstances I infer that the staff at Ocean Realty and David Wright of Medi Aid were aware that Marjorie was seeking permission to have an "assistance dog". I also got the distinct impression that Sylvia, George and Wendy had closed ranks as it were and were all pedalling the same line, that they had no knowledge Muffin was an "assistance dog". I prefer the evidence of Marjorie and David Zhang. It defies logic that while requests were being made of Ocean Blue to keep Muffin that neither Marjorie, Kevin or David Zhang mentioned the important fact that Muffin was an "assistance dog" which they would, at the least have known, advanced their case to keep her.
[50] I find that the less favourable treatment was "on the basis of" the impairment, that is, the reliance on an assistance dog. The words "on the basis of" are broad and have been held to mean "referable to". The connecting words 'on the basis of' are used in the key provisions of the ADA, namely ss7, 8, 9 and 10. It is unhelpful, in my view, to apply tests of causation that have been developed in the context of different discrimination legislation using different connecting words such as 'because of', 'by reason of' or 'on the ground of'. Those words have been held to have the same meaning[31] and to require a causal connection or relationship of cause and effect.[32] However, it has been said that the expressions 'based on' or 'on the basis of' are wider than 'because' and do not require a causal connection.[33] I find therefore that although the position by Ocean Blue was adopted because Medi Aid had a "no pets" policy, the treatment in evicting Marjorie was at least referable to, or on the basis of her reliance on an "assistance dog".
[51] Further, the fact Ocean Blue were acting in compliance with Medi-Aid's "no pets policy" and the terms of the lease entered into between Medi-Aid and the Jacksons, does not mean their actions were not discriminatory. It is not necessary that a person who discriminates considers that the treatment is less favourable[34] and their motive is irrelevant.[35]
[52] I find that Medi-Aid and Ocean Blue directly discriminated against Marjorie Jackson by treating her less favourably than they would have treated a tenant who did not rely on an assistance dog, in the same circumstances.
[53] The elements of s 11 are set out above.
[54] In Hurst and Devlin v Education Queensland,[36] the court considered the meaning of 'requirement or condition' in the indirect discrimination provision in the Disability Discrimination Act 1992 (Cth). There it was held that the words 'requirement or condition' were to be construed broadly and beneficially and that the requirement or condition need not be explicit but may be implicit.[37] This approach was applied to
s 11 of the ADA in State of Queensland v Mahommed.[38]
[55] Here, the relevant term was clause 24 of the tenancy agreement read with item 17.1. Clause 24 provided that a tenant may keep pets on the premises only if the agreement stated for item 17.1 that pets were approved. Item 17.1 provided that pets were not approved. The respondents argued that this term did not necessarily apply to "assistance dogs" and, in effect, had they known Muffin was an assistance dog, approval to keep her would have been given. I am not persuaded that this was the case. The letter dated 26 October 2017 from Wendy Georgiou to Mr and Mrs Jackson which enclosed the Notice to Leave provided in no uncertain terms that pets would not be allowed in "subsidised rental accommodation with the Foundation" under any circumstances. In any event, I have already found that Ocean Blue was aware Marjorie was seeking permission to keep an "assistance dog" so I do not accept the proposition that if Marjorie had asked for permission, it would have been given.
[56] It follows, that even if the term on its face applied to "pets", in practice "pets" included assistance dogs.
[57] The term or practice that "no pets were allowed" was a term with which Marjorie was not able to comply. In Hurst v Queensland[39] the Full Court of the Federal Court found it was an error to say that because a student could "cope" without an Auslan interpreter that the student was "able to comply" with a condition that she learn without one. In focussing on whether the student could cope, the trial judge had failed to ask whether the condition had the effect of causing disadvantage.
[58] The evidence was that when Kevin said to Marjorie that they could not risk their accommodation and that Muffin had to go, Marjorie was very distraught and cried all day to the point where Kevin decided that giving Muffin away was not an option. Further, even if Muffin had been given away, and Marjorie could have technically complied with the term, this would, in my view, have been to her serious disadvantage.
[59] I find, therefore, that Marjorie was not able to comply with the "no pets" term.
[60] The "no pets" term was a term with which a higher proportion of people without the attribute, that is those who did not rely on an assistance dog, could comply. Although there was no evidence of this I am prepared to accept it as the case based on common knowledge.
[61] Finally, for the term to constitute indirect discrimination it must be "not reasonable". In assessing whether a term is reasonable all relevant circumstances are to be taken into account, including the consequences of failure to comply with the term; the cost of alternative terms and the financial circumstances of the person imposing the term.[40] In Catholic Education Office v Clarke[41] in considering 'reasonableness' it was held:
The court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator's objectives without recourse to the requirement or condition: Waters v Public Transport Corporation, at 395, per Dawson and Toohey JJ (with whom Deane J agreed on this point, at 383-384). However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable: Commonwealth Bank v HREOC, at 88, per Beaumont J; State of Victoria v Schou [2004] VSCA 71, at [26], per Phillips JA.[42]
[62] The proper approach to the question of 'reasonableness' is to judge the reasonableness of the requirement or condition, not the reasonableness of the decision to require the person to comply with it.[43] The test of 'reasonableness' has been said to be an objective one which is less than necessity but more demanding than a test of convenience.[44] The tribunal is required to weigh all relevant factors.
[63] Although that the term be not reasonable is an element of indirect discrimination, s 205 provides that in a case of indirect discrimination, the respondent must prove, on the balance of probabilities, that a term complained of is reasonable. This, in effect reverses the onus implicit in s 11.
[64] I am not satisfied that the term in the all the circumstances of this matter was reasonable. Muffin was a small dog, under 5 kg, and had been house trained. Although Ocean Blue referred to complaints from other tenants about the smell of the common area carpet outside the Jackson's unit, there was no direct evidence of any complaints. Ocean Blue gave evidence that the carpet in the Jackson's unit needed to be replaced after they left, the inference being that this was due to Muffin. Marjorie, however, gave evidence that the carpet was very old and in a bad state when they moved in. I prefer Marjorie's evidence and do not accept that Muffin was the cause of the carpet having to be replaced. Marjorie's evidence was also consistent with a file note by Sylvia Martin on 29 December 2017 which provided "We did not receive a receipt for the cleaning and it did not appear to have been done at all. We let them off with the carpet cleaning due to the age of the carpet".[45] In any event I note that s 85 does not affect the liability of the owner of an assistance dog for any damage caused by the dog.[46] I do however accept that the potential for complaints is reduced if a "no pets" policy is in place and that there may, on occasion, be extra cleaning costs associated with allowing pets in units. On balance, however and in light of all relevant circumstances, I consider that the strictly enforced "no pets" policy was not reasonable. The respondent has not proven, on the balance of probabilities, that such a term was reasonable.
[65] It is not necessary that the person imposing the term is aware of the indirect discrimination.[47] It does not matter, in other words, that Medi Aid or Ocean Blue might not have known that the effect of the "no pets" term was discriminatory towards Marjorie.
[66] I find, that the "no pets" term imposed by Medi-Aid constituted indirect discrimination.
[67] The area of activity in which discrimination is prohibited is in the accommodation area: Part 4, Division 8.
[68] Section 83 prohibits a person discriminating against another in evicting that person or by treating them unfavourably in any way in connection with the accommodation. Section 85 prohibits discrimination by refusing to rent accommodation to another person because that person has an impairment and relies on an assistance dog.
[69] In my view, s 83(c) has been contravened. Marjorie was discriminated against by the respondents in being evicted from her accommodation. She was issued a Notice to Remedy on 9 October 2017 which provided:
Contrary to the terms of your General Tenancy Agreement dated 25 June 2014, and in particular, item 17.1 and Condition 24(1) of the General Tenancy Agreement, you are keeping a dog on the premises. This puts you in serious Breach of the terms of your General Tenancy Agreement and if not remedied immediately, will result in your Tenancy being terminated. Further it has been reported that this dog is a nuisance insofar as soiling the common area carpets in the hallway with urine and excrement. You have until Monday 23 October 2017 to remove this dog permanently from the premises. If you fail to do so, a Notice to Vacate will be issued and if necessary, we will pursue this order through the Queensland Civil and Administrative Tribunal.
[70] The Jacksons strongly denied that Muffin was responsible for any damage to the common area carpets[48] and pointed to the fact that they were away on a caravan holiday (with Muffin) when the Notice to Leave was emailed to them and had been away for the four weeks leading up to the Notice being issued.[49]
[71] A Notice to Leave was issued on 26 October 2017 which provided:
You have failed to remedy Notice to Remedy Breach (Form 11) issued to you on 9 October 2017, insofar as you continue to keep a dog on the premises. This situation was confirmed by Sylvia Martin and Wendy Georgiou from Ocean Blue Realty when we inspected your premises on 24 October 2017 under authority of the Entry Notice (Form 9) issued to you on 18/10/2017.
You must therefore vacate the premises on or prior to Monday 29 January 2017 (sic). Under normal circumstances, we would apply to the Queensland Civil and Administrative Tribunal for urgent possession of this unit, however, the Landlord has generously instructed that you be given 90 days notice. See attached correspondence.
[72] The "attached correspondence" of 26 October 2017 from Wendy Georgiou of Ocean Blue Realty relevantly provided:
Attached please find a Form 12 Notice to Leave for failing to remove the dog from the unit you currently rent from the Medi-Aid Centre Foundation Limited ("the Foundation").
The Residential Tenancy Agreement you signed with the Foundation on 25 June 2014 clearly states that pets ARE NOT PERMITTED in the premises. This is a firm policy of the Foundation. It has never and will never allow pets to be kept in properties owned by the Foundation. You were clearly informed of this when you first applied for subsidised rental accommodation with the Foundation, and on three occasions since. Despite this, you brought a dog into the premises and have refused to remove the animal.
Note that the keeping of animals in this building may be approved the Body Corporate Committee, HOWEVER, any such request to do so MUST be approved first by the owner of the property in which you reside. We reiterate that APPROVAL HAS NOT AND WILL NOT BE GIVEN to a tenant of the Foundation under any circumstances.
....
[73] I find that Marjorie was discriminated against in being evicted from her accommodation in contravention of s 83. It is therefore unnecessary for me to consider whether there has been a breach of s 85. Had I been required to apply s 85 I would have decided that "refused to rent" in s 85 was broad enough to cover an "eviction". It would then have been necessary to determine whether Marjorie was refused accommodation because she had an impairment and relied on an assistance dog. Although the word "because" is narrower than "on the basis of", I find that there was a causal relationship between Marjorie's impairment and reliance on an assistance dog and her eviction. The "no pets" term was not the reason for her eviction, her ownership and reliance on an assistance dog in breach of that term was. In my view that is enough to satisfy the causation requirement in s 85.
[74] I turn now to consider an appropriate remedy.
[75] Marjorie is seeking "payment of money to compensate for the discrimination against me, for my specific losses including furniture, payment for the cost of caravan parks and campsites".[50] Marjorie has claimed a lump sum amount of $50 000.[51] Under s 209 of the ADA the Tribunal may make an order requiring the respondent to pay to the complainant an amount the Tribunal considers appropriate as compensation for loss or damage caused by a contravention.
[76] I find that Marjorie suffered a significant degree of stress as a result of the instability she experienced in her accommodation following her eviction. Dr Andrew Ladhams refers in a report dated 5 March 2019 to the "consequent and dire consequences for the patient (sic) emotional, social and spiritual well-being" which consequences he said were observed by him at the consultation on 5 March 2019. Dr Ladham also refers to Marjorie's "particular vulnerability" and the "significant distress" she suffered upon her "eviction".
[77] Dr Nimali Weerasekara reports on 19 September 2018 that Marjorie's anxiety and depression got worse after she was asked to get rid of her dog from the unit and got an eviction notice. Dr Weerasekara states that since then Marjorie has been living in an old bus, travelling around as she does not have a permanent place to live.
[78] Marjorie states:
After we left Seacrest we lived in camp sites & caravan parks, lived hand-to-mouth, relying on relatives $ friends to give us a place to sleep, lost contact with my friends in the local area, not being able to go to my local doctor, watching Kevin's health go down hill, living with feelings of anger as we knew what happened was so wrong & unjust, feeling like an outcast cause all our friends & the other Medi-Aid residents still had their homes & hadn't been treated badly or discriminated against like us -filled me with humiliation, devastation & loss. And if it hadn't been for Muffin, I think I would've died through stress.[52]
[79] I award $10 000 for stress, humiliation and loss of dignity caused by the fact of and circumstances of the eviction.
[80] Marjorie stored furniture and belongings at the Yandina Storage Shed from 24 November 2017 to 11 February 2019. I award $3, 115 for storage costs.
[81] After storing goods for some time Marjorie had some larger items delivered to the Salvation Army. Marjorie has attached two "invoices" from Harvey Norman showing the purported value of these items. The first, dated 18 June 2019, lists furniture totalling $6 676 (including $80 delivery). It is unclear from the evidence but the value attributed to the items appears to be the price for these items as new. The second "invoice" dated 19 June 2019 lists furniture totalling $10, 875. This invoice says "delivery to Waterford West" which is the address under Marjorie Jackson's name on the invoice. As I am unable to determine what the amounts on both "invoices" actually represent I will not make any award for the value of this furniture. In any event, I would not make an award for the value of furniture that Marjorie decided to donate to the Salvation Army. The connection with the Notice to Leave issued on 26 October 2019 is too remote.
[82] Marjorie also incurred costs for staying in camp sites and caravan parks. Marjorie states that she and Kevin stayed at the Jacobs Well Caravan Park for 89 nights and at the Feeder Palm Caravan Park, Hervey Bay Caravan Park and Kilroy Caravan Park. The average cost of accommodation at caravan sites I am prepared to accept was approximately $40 per night. However, Marjorie would have been paying rent at Seacrest in excess of that, so she has not suffered any compensable loss in this respect.
[83] Doing the best I can, I award Marjorie a total of $13,115.00 in compensation. Medi-Aid and Ocean Blue Realty are jointly and severally liable to pay Marjorie Jackson this amount by 4:00pm on 14 February 2020.
[1] Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J).
[2] Anti-Discrimination Act 1991 (Qld) (ADA) s 6(2)(a).
[4] Statement of Marjorie Jackson filed 3 September 2019, [2].
[5] Ibid, Attachment 1: Letter from Dr Pran Lal dated 23 August 2019; Letter from Dr Ilian Kamenoff dated 21 August 2019.
[6] Woodforth v State of Queensland [2017] QCA 100.
[13] Guide, Hearing and Assistance Dogs Act 2009 (Qld) (Guide Dogs Act) Schedule 2: amendment to s 85 and Schedule 4 definitions of "guide dog" and "assistance dog" of the ADA.
[16] Guide Dogs Act, s 12A(2), s 12A(3).
[18] Disability Discrimination Act 1992 (Cth) (DDA) s 9.
[20] [2018] FCA 1220 at [219].
[23] Statement of Marjorie Jackson filed 3 September 2019, Attachment 4: Email from Marjorie Jackson to Manager Chairman all committee members, dated 27 June 2017.
[24] Ibid, Attachment 3: Information headed 'About guide, hearing and assistance dogs legislation'.
[26] Ibid, Attachment 12: Letter from Adel Fleming, Puppy School Trainer at Ashmore Puppy School, dated 7 August 2019.Information headed 'About guide, hearing and assistance dogs legislation'.
[27] Statement of Marjorie Jackson filed 3 September 2019, Attachment 19: MindDog application for a Psychiatric Service Dog dated 17 August 2017.
[28] Ibid, Attachment 21: Email from Gayl O'Grady dated 28 September 2018.
[29] Ibid, Attachment 21: Email from Gayl O'Grady dated 3 October 2018.
[30] Woodforth v State of Queensland [2017] QCA 100.
[31] Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd [1993] FCA 535; (1993) 46 FCR 301 at 321-2 cited in DC Pearce and RS Geddes, Statutory Interpretation in Australia, Lexis Nexis Butterworths, 8th ed, [12.9].
[32] Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 213. See also Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd [1993] FCA 535; (1993) 46 FCR 301 at 321-2; Commonwealth v Stamatov [1999] FCA 105 at [39]; Republic of Croatia v Snedden [2010] HCA 14; (2010) 241 CLR 461 at [22].
[33] DC Pearce and RS Geddes, Statutory Interpretation in Australia, Lexis Nexis Butterworths, 8th ed, [12.9], [12.13].
[37] Ibid, [56]; Forest v Queensland Health [2007] FCA 936, [53].
[42] Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121.
[43] Nojin v Commonwealth of Australia [2011] FCA 1066; (2011) 283 ALR 800, [85].
[44] Catholic Education Office v Clarke [2004] FCAFC 197, [115].
[45] Statement of Marjorie Jackson dated 26 August 2019, Annexure 30: File Note of Sylvia Martin dated 29 December 2017.
[48] Statement of Marjorie Jackson dated 26 August 2019, Annexure 24: Email from Kevin Jackson to Sylvia at Ocean Blue Realty dated 15 October 2017.
[50] Statement of Marjorie Jackson dated 26 August 2019 at [79].
[51] Statement of Contentions filed 14 March 2019 at 5.
[52] Statement of Marjorie Jackson dated 26 August 2019 at [79].
Jackson
Ocean Blue Queensland Pty Ltd & Ors [2020] QCAT 23
(1998) 193 CLR 280
(2008) 168 FCR 532
(1991) 173 CLR 349
(1993) 46 FCR 301
(1998) 90 FCR 202
(2010) 241 CLR 461
(2004) 138 FCR 121
(2011) 283 ALR 800