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  4. Matthews v Woombye Pub Trading Pty Ltd - [2022] QCAT 301

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Matthews v Woombye Pub Trading Pty Ltd[2022] QCAT 301

Matthews v Woombye Pub Trading Pty Ltd[2022] QCAT 301

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Matthews v Woombye Pub Trading Pty Ltd [2022] QCAT 301

PARTIES:

RAYMOND MATTHEWS

(applicant)

v

WOOMBYE PUB TRADING PTY LTD

(respondent)

APPLICATION NO/S:

ADL016-21

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

2 August 2022

HEARING DATE:

20 May 2022

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

  1. Woombye Pub Trading Pty Ltd is ordered to pay to Raymond Matthews, within 28 days of the date of these orders, the amount of $8,000.00 as compensation for the loss or damage caused by Woombye Pub Trading Pty Ltd’s contravention of s 46 of the Anti-Discrimination Act 1991 (Qld).
  2. Any party seeking an order for costs must file with the Tribunal, and give to the other party a copy of, written submissions as to costs, no longer than five (5) pages, within 14 days of the date of these orders.
  3. If an application for costs is made pursuant to order number 2:
    1. (i)
      the other party must file with the Tribunal, and give to the other party a copy of, written submissions in reply, no longer than five (5) pages, within 14 days of receipt of the written submissions; and
    2. (ii)
      the application will be determined on the papers and without an oral hearing;
  4. If no application for costs is made pursuant to order number 2, there shall be no order as to costs of the proceeding.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION – where applicant had an impairment within the meaning of the Anti‑Discrimination Act 1991 (Qld) – whether applicant’s dog was an assistance dog within the meaning of the Act – where respondent refused to allow applicant to bring his dog inside his local pub – where respondent considered that a Translink Animal Assistance Pass was insufficient to permit applicant’s dog inside the pub – whether respondent’s treatment of the applicant constituted direct discrimination – where respondent found to have contravened s 46 of the Act – whether the same conduct can amount to both “direct discrimination” and “indirect discrimination” under the Act

Acts Interpretation Act 1954 (Qld), s 32D

Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 9, s 10, s 11, s 46, s 106, s 166, s 174A, s 174C, s 204, s 205, s 206, s 208, s 209, Schedule 1

Guide, Hearing and Assistance Dogs Act 2009 (Qld), Schedule 4

Liquor Act 1992 (Qld), s 142ZZB

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58, s 59

Jackson v Ocean Blue Queensland Pty Ltd & Ors [2020] QCAT 23

Leach v Burston [2022] FCA 87

Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130

Peter Williamson Pty Ltd v Capitol Motors Ltd (1982) 61 FLR 257

Reurich v Club Jervis Bay Ltd (2018) 360 ALR 296, [2018] FCA 1220

Sklavos v Australasian College of Dermatologists [2017] 256 FCR 247

Woodforth v State of Queensland [2018] 1 Qd R 289

Wotton v Queensland (No 5) (2016) 352 ALR 146, [2016] FCA 1457

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application by the Applicant (Mr Matthews) brought against the Respondent under the Anti-Discrimination Act 1991 (Qld) (the ADA).
  2. [2]
    The matter has been referred to the Tribunal by the Queensland Human Rights Commissioner in consequence of a complaint made by Mr Matthews dated 28 September 2020 (the Complaint).  The Complaint can be broadly described as involving alleged impairment discrimination in the goods and services area.
  3. [3]
    The Respondent operates the Woombye Pub (the Pub) in Woombye, a town in the Sunshine Coast hinterland.
  4. [4]
    The substance of the Complaint (addressed in further detail below) is that, on a number of occasions, various employees of the Respondent prohibited Mr Matthews from bringing his dog, “Kooy2” (pronounced “Cooee–too”),[1] inside the Pub with him, and on one of those occasions Mr Matthews was banned from the Pub for one month.
  5. [5]
    The central question is whether the Respondent discriminated against Mr Matthews, in contravention of s 46 of the ADA.
  6. [6]
    Mr Matthews adduced evidence on his own behalf and also called two witnesses (each of whom has provided an affidavit), namely William Pike (Mr Pike) and Lucas Porteous (Mr Porteous).  Each of Mr Matthews, Mr Pike and Mr Porteous was cross‑examined by Ms Burt who represented the Respondent.  Ms Burt is the Business Manager of the Respondent.
  7. [7]
    The Respondent adduced evidence from Mark Welchman (Mr Welchman) and Stacey Brown (Ms Brown), two employees of the Respondent (each of whom has provided a statement).  Each of Mr Welchman and Ms Brown was cross-examined by Mr Matthews.

Jurisdiction and procedure

  1. [8]
    The Commissioner referred the Complaint to the Tribunal pursuant to s 166(1)(b) of the ADA.
  2. [9]
    The Tribunal has the function of hearing and determining the Complaint pursuant to s 174A(a)(iv) of the ADA.
  3. [10]
    Pursuant to s 174C(1) of the ADA, the Tribunal may exercise the powers conferred on it under the ADA or the “relevant tribunal Act” (in this case, the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act)).[2]
  4. [11]
    With respect to the burden of proof in this case, the ADA requires that:
    1. (a)
      it is for Mr Matthews to prove, on the balance of probabilities, that the Respondent contravened the ADA, subject to the requirements in ss 205 and 206 of the ADA;[3]
    2. (b)
      in respect of the allegation of indirect discrimination, the Respondent must prove, on the balance of probabilities, that a term complained of is reasonable;[4]
    3. (c)
      insofar as the Respondent wishes to rely on an exemption, the Respondent must prove, on the balance of probabilities, that it applies.[5]
  5. [12]
    The Tribunal is not bound by the rules of evidence and, amongst other matters, must have regard to the reasons for the enactment of the ADA as stated in the preamble.[6]

The Complaint

  1. [13]
    The Complaint encompasses three aspects of the Respondent’s alleged prohibition of Mr Matthews bringing Kooy2 inside the Pub.
  2. [14]
    First, on various occasions on and from approximately November 2017 and prior to 8 September 2020, Mr Matthews was precluded from bringing Kooy2 inside the Pub with him (the First Ground).
  3. [15]
    Second, there was an incident on 8 or 9 September 2020, when Mr Matthews brought Kooy2 inside the Pub after Kooy2 had almost been run over by a car outside the Pub, and Mr Matthews was ordered from the inside of the Pub by Ms Brown (the Second Ground).
  4. [16]
    Third, there was a further incident on 15 September 2020, when Mr Matthews again brought Kooy2 inside the Pub following which a discussion ensued between Mr Matthews and Mr Welchman, during which Mr Matthews was advised that Kooy2 was not allowed inside the Pub and, further, that Mr Matthews was banned or barred from the Pub for a period of one month (the Third Ground).
  5. [17]
    The issue is whether the Respondent contravened s 46 of the ADA by its treatment of Mr Matthews on the occasions the subject of the three Grounds.

Section 46 of the ADA

  1. [18]
    Section 46 of the ADA provides:
  1. (1)
    A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person—
  1. (a)
    by failing to supply the goods or services; or
  1. (b)
    in the terms on which goods or services are supplied; or
  1. (c)
    in the way in which goods or services are supplied; or
  1. (d)
    by treating the other person unfavourably in any way in connection with the supply of goods and services.
  1. (2)
    In this section, a reference to a person who supplies goods and services does not include an association that—
  1. (a)
    is established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purposes; and
  1. (b)
    does not carry out its purposes for the purpose of making a profit.
  1. [19]
    The term “person” is not defined in the ADA but having regard to s 32D of the Acts Interpretation Act 1954 (Qld), and the objects of the ADA, it is plain that the reference to “person” in s 46 includes a corporation.  I find that the Respondent is a “person” within the meaning of s 46.
  2. [20]
    The term “services” is defined in Schedule 1 to the ADA as follows:

services includes—

  1. (a)
    access to and use of any place, vehicle or facilities that members of the public are permitted to use; and
  1. (b)
    banking and the supply of loans, finance or credit guarantees; and
  1. (c)
    recreation, including entertainment, sports, tourism and the arts; and
  1. (d)
    the supply of refreshments; and
  1. (e)
    services connected with transport and travel; and
  1. (f)
    services of any profession, trade or business; and
  1. (g)
    services provided by a public or local government; and
  1. (h)
    the provision of scholarships, prizes or awards;

but does not include—

  1. (i)
    superannuation; or
  1. (j)
    insurance.
  1. [21]
    Given that the Respondent provided, at the Pub, food and beverages (both alcoholic and non-alcoholic) for the purpose of making a profit, I find that the Respondent was providing “services” as contemplated by each of subsections (d) and (f)[7] of the definition.
  2. [22]
    I am also of the view that s 46(2) of the ADA has no application to the Respondent.
  3. [23]
    In my view, if the Respondent discriminated against Mr Matthews, I consider that such discrimination would fall within the scope of each of subsections 46(1)(b), (c) and (d) of the ADA.  By its conduct, the Respondent refused Mr Matthews entry inside the Pub, in company with Kooy2, such that Mr Matthews was then not able to consume food and beverages inside in company with Kooy2.  In my view, the Respondent imposed a term by which Mr Matthews would only be served food and/or beverages if he either sat alone inside and left Kooy2 outside or sat outside with Kooy2 (see s 46(1)(b)).  I also consider that this was the “way” in which the goods and services were supplied to Mr Matthews within the meaning of s 46(1)(c).  Further, by such conduct, I consider that the Respondent treated Mr Matthews unfavourably in connection with the supply of goods or services, being the supply of food and beverages (see s 46(1)(d)).
  4. [24]
    I now turn to the question of whether the Respondent discriminated against Mr Matthews.

Discriminate

  1. [25]
    The term “discriminate” is defined in Schedule 1 to the ADA to mean discriminate whether by direct discrimination or indirect discrimination.
  2. [26]
    The phrase “direct discrimination” has the meaning given by s 10 of the ADA.
  3. [27]
    The phrase “indirect discrimination” has the meaning given by s 11 of the ADA.
  4. [28]
    In my view, an initial question arises as to whether the same conduct can give rise to both direct discrimination and indirect discrimination.

Can the same conduct give rise to both direct and indirect discrimination?

  1. [29]
    The Commonwealth anti-discrimination legislation, the Disability Discrimination Act 1992 (Cth) (the Commonwealth Act), also provides for direct discrimination and indirect discrimination within the scope of that Act.
  2. [30]
    In Sklavos v Australasian College of Dermatologists,[8] it was said by Bromberg J that the same conduct cannot constitute both discrimination as defined under s 5 of the Commonwealth Act (direct discrimination) and discrimination as defined under s 6 of that Act (indirect discrimination).  Bromberg J’s reasoning was as follows:[9]

[13] There is persuasive support for the proposition that the definitions provided by s 5 for direct discrimination and that provided by s 6 for indirect discrimination are mutually exclusive. In other words, the same conduct cannot amount to both direct and indirect discrimination. The line of relevant authority commences with Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 where provisions relevantly comparable to ss 5 and 6 of the DDA (s 24(1) and (3) of the Anti‑Discrimination Act 1977 (NSW)) were held to be mutually exclusive: Brennan J at 171; Dawson J at 184. The reasoning in Banovic was applied by Dawson and Toohey JJ (at 392-393) and McHugh J (at 400) in Waters v Public Transport Corporation (1991) 173 CLR 349. That case addressed complaints of disability discrimination brought pursuant to s 17(1) and (5) of the Equal Opportunity Act 1984 (Vic) which were relevantly comparable provisions to those of ss 5 and 6 of the DDA Act. Relying on those authorities, Katzmann J in Munday v Commonwealth (No 2) (2014) 226 FCR 199 at [157] held, correctly in my view, that under the DDA the same conduct cannot amount to both direct and indirect discrimination. In Walker v Victoria (2011) 279 ALR 284 at [28] and in Abela v Victoria [2013] FCA 832 at [84] Tracey J expressed the same view in holding that the DDA definitions of direct and indirect discrimination are mutually exclusive. Tracey J and Katzmann J each relied on Australian Medical Council v Wilson (1996) 68 FCR 46 (Black CJ, Heerey and Sackville JJ).

[14] If it were otherwise, anomalous and obviously unintended outcomes would result. A requirement or condition which would not constitute discrimination under s 6(1) or s 6(2) because the requirement or condition was reasonable (see s 6(3)) could constitute discrimination under s 5. For similar reasons, Dawson and Toohey JJ in Waters (applying observations made by Dawson J in Banovic) concluded that s 17(1) and (5) of the Equal Opportunity Act 1984 (Vic) dealt separately with direct and indirect discrimination (see at 393).

[15] Furthermore, the structure adopted by the DDA must be respected in construing its operation. Whilst the same conduct may be susceptible to multiple characterisations, it could not have been intended that the same conduct should attract more than one of the definitions provided by the DDA for the term “discriminate”. As Gummow, Hayne and Heydon JJ said in Purvis v New South Wales (2003) 217 CLR 92 at [185]:

… The Act makes separate and distinct provision for indirect disability discrimination (dealt with in s 6 of the Act) from the provision made for disability discrimination (s 5) …

[16] Whilst it may be open to an applicant to plead that the same conduct constituted direct discrimination and, in the alternative, indirect discrimination, the proper characterisation of the conduct falls to be determined by the court on the basis that the same conduct cannot constitute discrimination as defined under s 5 and discrimination as defined under s 6.

  1. [31]
    The above reasoning of Bromberg J was applied by each of Markovich J in Reurich v Club Jervis Bay Ltd[10] (Reurich) and Halley J in Leach v Burston[11] in concluding that the same conduct cannot give rise to both direct and indirect discrimination under the Commonwealth Act.
  2. [32]
    Although the respective provisions of the ADA and the Commonwealth Act are not analogues, I consider that the reasoning of Bromberg J is apposite to a consideration of the operation of ss 10 and 11 of the ADA.  I find that the structure and the language[12] of the ADA are such that the legislature did not intend that the same conduct should attract more than one of the definitions provided for by the term “discriminate”.  I will proceed on the basis that the impugned conduct (if properly characterised as comprising the same conduct) cannot amount to both direct discrimination under s 10 and indirect discrimination under s 11 of the ADA.
  3. [33]
    The next issue is whether the Respondent engaged in direct discrimination against Mr Matthews.

Did the Respondent engage in direct discrimination against Mr Matthews?

Direct discrimination

  1. [34]
    The ADA prohibits direct discrimination.[13]
  2. [35]
    “Direct discrimination” on the basis of an “attribute” happens if a person treats, or proposes to treat, 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.[14]
  3. [36]
    It is not necessary that the person who discriminates considers the treatment is less favourable.[15]
  4. [37]
    The person’s motive for discriminating is irrelevant.[16]
  5. [38]
    By s 8 of the ADA:

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of—

  1. (a)
    a characteristic that a person with any of the attributes generally has; or
  1. (b)
    a characteristic that is often imputed to a person with any of the attributes; or
  1. (c)
    an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
  1. (d)
    an attribute that a person had, even if the person did not have it at the time of the discrimination.

Example of paragraph (c)—

If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have.

  1. [39]
    The Respondent could only directly discriminate against Mr Matthews if it did so “on the basis of an attribute” of Mr Matthews.

Attribute

  1. [40]
    Section 7 of the ADA sets out a list of the “attributes” in respect of which the ADA prohibits discrimination.  The attribute relevant to this Application is “impairment”.[17]
  2. [41]
    “Impairment” is defined in Schedule 1 to the ADA as follows:

impairment, in relation to a person, means—

  1. (a)
    the total or partial loss of the person’s bodily functions, including the loss of a part of the person’s body; or
  1. (b)
    the malfunction, malformation or disfigurement of a part of the person’s body; or
  1. (c)
    a condition or malfunction that results in the person learning more slowly than a person without the condition or malfunction; or
  1. (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
  1. (e)
    the presence in the body of organisms capable of causing illness or disease; or
  1. (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—

  1. (g)
    presently exists; or
  1. (h)
    previously existed but no longer exists.
  1. [42]
    At the hearing, the Respondent accepted that at the time of the relevant events Mr Matthews suffered “impairment” within the meaning of the ADA, comprising each of a condition or malfunction that results in the person learning more slowly than a person without the condition or malfunction (see subsection (c) of the definition), and also reliance on an assistance dog (see subsection (f)).  However, the Respondent submitted that each such impairment was “unsubstantiated” as far as the Respondent was aware at the time of the relevant events.
  2. [43]
    With respect to the particular condition suffered by Mr Matthews for the purposes of subsection (c), Mr Matthews’ evidence was that he suffered from depression and anxiety and had done so since about 2014.  The GP Management Plan for Mr Matthews prepared by his usual GP, Dr Kenafake, noted that Mr Matthews suffered depression from 26 February 2015 and that the care management plan provided for management of that condition.  Mr Matthews was prescribed “Avanza” 30mg (an anti-depressant medication).
  3. [44]
    With respect to subsection (c) of the definition, it is unclear whether the Respondent’s acceptance that Mr Matthews relied on an assistance dog, included acceptance that Kooy2 was an “assistance dog” within the meaning of the ADA.  In the event that this was not accepted by the Respondent, I will address this issue.

Assistance dog

  1. [45]
    The ADA defines “assistance dog” (in Schedule 1) as having the meaning given by the Guide, Hearing and Assistance Dogs Act 2009 (Qld) (the GHAD Act), Schedule 4.  In the GHAD Act, “assistance dog” is defined to mean 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.
  2. [46]
    I respectfully agree that the reference to the word “trained” in the definition does not require training by an “approved trainer” or “approved training institution”.[18]
  3. [47]
    The definition of “assistance dog” encompasses training to perform identifiable “physical tasks and behaviours” to assist a person with a disability to reduce the person’s need for support.  Given that Mr Matthews’ need for support relates to his psychological (rather than physical) impairment, I consider that the “behaviours” Kooy2 was trained to perform need only involve obedience and companionship in order to assist in reducing Mr Matthews’ need for support.[19]
  4. [48]
    I consider that the totality of the following evidence founds a conclusion that Kooy2 was an “assistance dog” within the meaning of the ADA:
    1. (a)
      the fact that Mr Matthews was issued with the two (consecutive) Translink Assistance Animal Passes in respect of Kooy2;[20]
    2. (b)
      the evidence presented by Mr Matthews, which I accept, that:
      1. the training of Kooy2 was “self-assessment” (which I conclude was a reference to the training being carried out by Mr Matthews);
      2. Kooy2 was trained to be next to Mr Matthews;
      3. for two or three years, when Mr Matthews chose to sit inside the Pub, Kooy2 had sat at the door to the Pub (where Mr Matthews could see Kooy2) and just waited for Mr Matthews;
      4. Kooy2 introduced Mr Matthews to a “myriad” of people and got him over many “hurdles”;
      5. Kooy2 had the ability to calm Mr Matthews’ “anxious states”;
    3. (c)
      Mr Pike’s uncontested evidence that Kooy2 introduced Mr Matthews to many people;
    4. (d)
      Mr Porteous’ uncontested evidence that Kooy2 introduced Mr Matthews to “many” and was obedient.
  5. [49]
    The next issue is whether the Respondent treated Mr Matthews (with each aspect of his “impairment”) less favourably than another person without such impairment would be treated in circumstances that are the same or not materially different.  The starting point for answering this question is to identify the notional “another person”, generally referred to in the cases as the “comparator”.

Identifying the comparator

  1. [50]
    The application of s 10 of the ADA requires the adoption of the following approach:[21]

Section 10 requires a comparison between a person with an attribute and a person without that attribute. The comparison is to be made by reference to a certain set of circumstances. In the case of the person with the attribute, that is the set of circumstances in which that person has been treated or the circumstances in which it is proposed to treat that person. In the case of the person without the attribute, who is commonly called in this context “the comparator”, they are hypothetical circumstances which are assumed to be the same or not materially different from those in which the person with an attribute has been or will be treated …

  1. [51]
    In Woodforth, McMurdo JA also said:[22]

Section 10 of the ADA requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be “in circumstances that are the same or not materially different” from those that constituted the context for the treatment of the impaired person. In that respect s 10 of the ADA is no different from s 5(1) of the [Commonwealth Act]. But beyond that likeness, there are differences between the two statutes. The [Commonwealth Act] contained no equivalent of s 8 of the ADA, the effect of which, in combination with s 10 of the ADA, is to proscribe discrimination on the basis of a “characteristic”. In the present case it proscribed discrimination on the basis of the applicant’s inability to communicate by speech. That proscription would be ineffective if the characteristic of a disability was also to be treated as a “circumstance” in the comparison for the purposes of s 10. It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic …

  1. [52]
    In Mulligan, a case involving a complaint brought under the Commonwealth Act, the applicant was denied access with his assistance animal (a dog) on a commercial aircraft in circumstances where the applicant suffered from cerebral palsy including vision impairment.  The Full Court of the Federal Court of Australia concluded that the comparator was a person, who was without a disability and without a dog, who wanted to travel with the airline.[23]
  2. [53]
    In Ruerich, which also involved a complaint brought under the Commonwealth Act, the applicant depended upon his assistance dog to assist him in coping with everyday life, including to deal with his social communication disorder, attention deficit/hyperactivity disorder and paranoid personality disorder.  The applicant claimed that his local club, Club Jervis Bay Ltd, directly or indirectly discriminated against him under the Commonwealth Act on approximately 20 different occasions, which occasions involved a refusal of access of the applicant and his assistance dog to, respectively, the Club’s premises and also the courtesy bus for the Club.  Markovich J concluded that the comparator was a person who was without a disability and without an assistance dog who wanted to travel on the courtesy bus or who wished to enter the Club respectively (in the circumstances in which the applicant sought to do so).[24]
  3. [54]
    In my view, having regard to the test as articulated by McMurdo JA, and the comparable cases under the Commonwealth Act, the proper “comparator” in the present case is a customer of the Pub who did not suffer from depression (or anxiety) and who did not rely on an assistance dog, and sought to eat or drink inside the Pub on the occasions, and in the circumstances, the subject of the First, Second and Third Grounds.  I will now address each of those Grounds in turn.

The First Ground

  1. [55]
    Mr Matthews’ evidence, which I accept, is that:
    1. (a)
      since 2014 Mr Matthews has suffered from depression and anxiety;
    2. (b)
      as noted above, Mr Matthews was prescribed an antidepressant, Avanza;
    3. (c)
      Mr Matthews was treated by Dr Ken McGuire who also signed a Translink application for an assistance animal pass;
    4. (d)
      Mr Matthews obtained an “Assistance Animal Pass” from Translink which identified Mr Matthews as the “Handler” of a Chihuahua breed dog named “Koochy Koo” which Mr Matthews then owned.  That pass was valid to May 2015;
    5. (e)
      Koochy Koo passed away in about 2014 and about two months later Mr Matthews became the owner of Kooy2;
    6. (f)
      Mr Matthews obtained a Translink Assistance Animal Pass for Kooy2 which identified Mr Matthews as the “Handler” and contained a colour photo of Kooy2 and identified her breed as a Chihuahua.  That pass was valid to October 2017;
    7. (g)
      Mr Matthews obtained a further Translink Assistance Animal Pass for Kooy2 which is valid to February 2023.  This pass contained a new colour photo of Kooy2 (again identified as a Chihuahua) and identified Mr Matthews as the “Handler”;
    8. (h)
      prior to November 2017, Mr Matthews was permitted to take Kooy2 inside the Pub with him;
    9. (i)
      the Respondent’s attitude to permitting Mr Matthews to bringing Kooy2 inside the Pub changed in about November 2017 which change of attitude coincided with a new manager, Mr Stan Bouchard (Mr Bouchard), taking over.  In short, it appears that Mr Bouchard formed the view that the Translink Assistance Animal Pass was not sufficient documentation to permit Mr Matthews to bring Kooy2 inside the Pub.
  2. [56]
    Mr Matthews gave evidence that, variously, on “numerous” occasions or “4 to 5 occasions” or “about half a dozen occasions”, he requested that Kooy2 be allowed inside the Pub and showed various employees of the Respondent the Translink Assistance Animal Pass for Kooy2.  There is no direct challenge to this evidence and the evidence of Mr Welchman and Ms Brown corroborates, in part, Mr Matthews’ version of events.
  3. [57]
    Mr Welchman recalled a staff meeting called by Mr Bouchard in about November 2017 at which Mr Bouchard explained that Mr Matthews had attempted to enter the Pub without what was described as the “correct documentation” to identify a dog as being an assistance animal to a specific handler.  From that meeting, Mr Welchman understood that the correct documentation was an identity card issued under the “Guide, Hearing and Assistance Dogs Act” (plainly a reference to the GHAD Act).
  4. [58]
    Mr Welchman accepted that he refused Mr Matthews and Kooy2 entry inside the Pub because Mr Matthews did not produce an identity card under the GHAD Act.  Mr Welchman also accepted that on “numerous occasions” the issue of the Translink Assistance Animal Pass came up and that the card was shown to him by Mr Matthews on a “couple” of occasions or “two or three times”.
  5. [59]
    Ms Brown’s evidence was that she was made aware by Mr Welchman that Mr Matthews was not allowed inside the Pub with his dog because he did not have what Mr Matthews put to Ms Brown (in cross-examination) as the “right criteria” or “right stuff”.
  6. [60]
    Ms Brown gave evidence that she was shown an identification card by Mr Matthews on one occasion, but she was unable to confirm whether it was one of the Translink Assistance Animal Passes issued in respect of Kooy2, a copy of which was put into evidence.  On the evidence, I find that Ms Brown was in fact shown one of the Translink Assistance Animal Passes by Mr Matthews.
  7. [61]
    Ms Brown also gave evidence that she understood that Mr Matthews considered that his dog (Kooy2) was an assistance dog.
  8. [62]
    Mr Matthews also gave evidence about a conversation with Judy Fletcher (Ms Fletcher), who appears to have been the duty manager at the Pub, in relation to the Translink Assistance Animal Pass and Ms Fletcher advised him that the pass was not sufficient or “doesn’t cut the mustard” (apparently based on what she had been told by Mr Bouchard).  This evidence is uncontradicted and I accept it.
  9. [63]
    Having regard to the evidence, I find that:
    1. (a)
      from approximately November 2017, the Respondent adopted a policy or practice that Mr Matthews was not to be permitted inside the Pub accompanied by Kooy2 unless he produced an identity card issued under the GHAD Act;
    2. (b)
      on approximately five occasions between November 2017 and 7 September 2020, Mr Matthews produced one of the Translink Assistance Animal Passes for Kooy2 to variously Mr Bouchard, Ms Fletcher, Mr Welchman and Ms Brown and, on each occasion, was informed that the Translink Assistance Animal Pass was insufficient to permit Mr Matthews to bring Kooy2 inside the Pub and Mr Matthews was denied permission to bring Kooy2 inside the Pub;
    3. (c)
      on no occasion did an employee advise Mr Matthews that he could bring Kooy2 inside the Pub upon production of the Translink Assistance Animal Pass if Kooy2 were wearing her vest and a leash;
    4. (d)
      the Respondent, by Mr Bouchard and Mr Welchman, proceeded on the basis that it was a statutory requirement that Mr Matthews produce an identity card issued under the GHAD Act in order to bring Kooy2 inside the Pub.
  10. [64]
    In my view, adopting the comparator identified in paragraph 54 above, Mr Matthews was treated less favourably than a customer of the Pub who did not suffer from depression or anxiety and who did not rely on an assistance dog, and sought to eat or drink inside the Pub on the occasions the subject of the First Ground.  I find that, on those occasions, the comparator would have been permitted inside the Pub to eat or drink.  Having regard to ss 10(2) and 10(3) of the ADA, I consider it irrelevant that the Respondent, by at least Mr Welchman,[25] believed it was a statutory requirement that Mr Matthews produce an identity card issued under the GHAD Act in order to bring Kooy2 inside the Pub (or believed that the Respondent was entitled to refuse access inside the Pub if such an identity card was not produced by Mr Matthews).[26]  Consequently, I find that Mr Matthews was discriminated against on the basis of his reliance on an assistance dog (Kooy2) and that the Respondent engaged in direct discrimination within the meaning of s 10 of the ADA.
  11. [65]
    I find that on each of the occasions identified in paragraph 63(b) above, the Respondent discriminated against Mr Matthews in contravention of s 46 of the ADA.

The Second Ground

  1. [66]
    Mr Matthews generally visited the Pub on Tuesday and Wednesday nights.  In the face of Mr Matthews’ various unsuccessful attempts to bring Kooy2 inside the Pub, Mr Matthews adopted a practice of either sitting outside with Kooy2 or sitting just inside the Pub and putting Kooy2 outside where she could look through the glass door and see Mr Matthews sitting inside.  It was the latter scenario which led to the incident the subject of Ground 2.
  2. [67]
    Mr Matthews gave the following evidence which I accept.  For two or three years prior to 8 or 9 September 2020, Kooy2 (when outside) had sat at the door and just waited for Mr Matthews.  However, on the night of 8 or 9 September 2020, Kooy2 left the Pub (Mr Matthews assumes she decided to go home).  Another patron at the Pub, named “Bully”, yelled out, “Hey, your dog has almost been skittled” and Mr Matthews ran outside on to the road in front of a car, stopped the traffic, picked up Kooy2, went back to the Pub, and took Kooy2 inside the Pub (holding her).
  3. [68]
    Ms Brown was working at the Pub that night.  In cross-examination, Ms Brown agreed that when Mr Matthews came back inside the Pub he was upset and said “My dog’s almost been fucking run over”.  Mr Matthews’ evidence is that Ms Brown then pointed at him and said, “Take the dog outside”.  Ms Brown admitted telling Mr Matthews to go outside but did not recall pointing at him.  On any view of the evidence, Mr Matthews was directed to remove Kooy2 from inside the Pub.
  4. [69]
    There is a dispute as to what happened next.
  5. [70]
    Ms Brown says that Mr Matthews said to her words to the effect “You fucking stupid bitch!” and then he collected his belongings from the table he had been sitting at and left through the front door, slamming it as he went.  During cross‑examination, Ms Brown admitted that she had held the door open but maintained that Mr Matthews slammed the door.
  6. [71]
    Mr Matthews denied making the statement alleged; he stated that he only used the words “you bitch”.  He also suggested that those words were directed at Kooy2 and not Ms Brown; and he denied slamming the door.
  7. [72]
    Mr Porteous, who was called by Mr Matthews, accepted in cross-examination that Mr Matthews said to Ms Brown “you bitch” but denied that Mr Matthews said “you fucking bitch”.  In re-examination, Mr Porteous accepted that it was possible that Mr Matthews was directing those words to Kooy2 rather than to Ms Brown.
  8. [73]
    Having regard to the manner in which each of the three witnesses presented their evidence, the fact that Mr Porteous was prepared to accept, in re-examination, that it was possible that Mr Matthews was directing those words to Kooy2 (when that contradicted his evidence in cross-examination); the fact that Mr Matthews was plainly upset at Kooy2 almost being struck by a car and had just been ordered to take Kooy2 outside; and the inherent unlikelihood that Mr Matthews was directing his statement at his assistance dog, Kooy2, rather than Ms Brown, I accept Ms Brown’s version of events in relation to the disputed events.  In my view, these particular facts are not relevant to the question of discrimination in relation to the Second Ground, but the facts have a potential bearing on the Third Ground (as discussed below).
  9. [74]
    In circumstances where Ms Brown had previously been shown the Translink Assistance Animal Pass for Kooy2, I consider that Mr Matthews was treated less favourably than the comparator in that the comparator would not have been ordered to leave the Pub (when, at that point, Mr Matthews had not directed any verbal abuse at Ms Brown).  In my view, the direction that Mr Matthews remove himself and Kooy2 from inside the Pub was a continuation of the policy or practice that Mr Matthews was not to be permitted inside the Pub accompanied by Kooy2 unless he produced an identity card issued under the GHAD Act.
  10. [75]
    For the reasons set out in respect of the First Ground, I find on 8 or 9 September 2020, the Respondent engaged in direct discrimination within the meaning of s 10 of the ADA and that the Respondent discriminated against Mr Matthews in contravention of s 46 of the ADA.

The Third Ground

  1. [76]
    On 15 September 2020, Mr Matthews returned to the Pub.  Mr Matthews was in company with Mr Pike and had with him Kooy2 who was wearing a vest and had a leash attached to her.
  2. [77]
    Both men entered the Pub and a conversation ensued with Mr Welchman.
  3. [78]
    Mr Pike recorded the conversation on his mobile phone and a USB of the conversation was tendered in evidence as Exhibit 9.  The quality of the recording is not particularly good, but the majority of the conversation can be understood.
  4. [79]
    Initially, Mr Welchman said that it was all right if “the dog” sat outside.  Mr Matthews insisted that the dog be allowed inside.  Mr Welchman responded that Mr Matthews did not have all the “paperwork” for it.  Mr Welchman referred to the need for a “letter” and this was refuted by Mr Matthews (Mr Welchman also referred to the need for a “jacket”).  The conversation then turned to what Mr Welchman referred to as Mr Matthews’ “abuse” of staff, presumably referring to, in particular, the occasion the subject of Ground 2.  After an exchange between Mr Welchman and Mr Matthews as to what Mr Matthews had previously said and his justification for doing so, Mr Welchman then said to Mr Matthews words to the effect that Mr Matthews was “out” for a month (as Mr Matthews understood it (and which was accepted by the Respondent), that Mr Matthews was barred or banned from coming to the Pub for a month) and that they would talk about it after that.  Mr Welchman also said it was because of the abuse of “my bar maids” and that it was nothing to do with “your dog”.  Mr Matthews then left the Pub with Kooy2.
  5. [80]
    There was a further factual dispute as to the alleged behaviour of Mr Matthews after he had left the Pub on this occasion, specifically that Mr Welchman alleges that Mr Matthews took off his shirt and invited Mr Mr Welchman to fight him.  This is denied by Mr Matthews and Mr Pike gave evidence that no such incident occurred.  I consider that this aspect of the evidence is irrelevant to the issue of discrimination and find that it is unnecessary to decide the question.
  6. [81]
    In my view, the refusal of entry to Mr Matthews on this occasion appears to have been the product of two reasons, first, the fact that Mr Matthews did not produce what Mr Welchman considered to be the proper identification for Kooy2 to be permitted inside the Pub and second, Mr Matthews’ conduct towards Ms Brown on the occasion the subject of the Second Ground.
  7. [82]
    This raises for consideration the operation of s10(4) of the ADA.  That subsection provides:

If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

  1. [83]
    There is no definition of “substantial reason” or “substantial” in the ADA.
  2. [84]
    I consider that the reason must be one of “real significance” or an “operative” reason.[27]
  3. [85]
    In my view, one reason for the refusal by Mr Welchman to permit Mr Matthews inside the Pub on the night of 15 September 2020 was the fact that Mr Matthews did not have the correct “paperwork” (plainly a reference to an identity card under the GHAD Act), and this was a reason of real significance or an operative reason (and, consequently, a substantial reason).  I consider this to be a further instance of the application of the policy or practice of the Respondent to refuse Mr Matthews entry inside the Pub with Kooy2 in the absence of an identity card under the GHAD Act.  Again, for the reasons identified in relation to the First Ground, I find that, by this conduct, the Respondent engaged in direct discrimination against Mr Matthews in contravention of s 46 of the ADA.
  4. [86]
    However, as to Mr Welchman’s conduct in banning or barring Mr Matthews from the Pub for a period of one month, I consider that the reason for this ban was the prior conduct of Mr Matthews towards Ms Brown on the occasion the subject of the Second Ground.  Mr Welchman’s contemporaneous statement to Mr Matthews was that this was done because of what Mr Welchman referred to as Mr Matthews’ “abuse” towards the bar staff and had nothing to do with “the dog”.  In this respect, I find that the lack of “paperwork” was not a substantial reason for the ban and, in any event, this treatment of Mr Matthews was not done on the basis of the attribute (impairment) of Mr Matthews’ reliance on his assistance dog in relation to Kooy2.  In relation to the ban, I am not satisfied that Mr Matthews has established that he was treated less favourably than the comparator would have been treated in the same or not materially different circumstances, namely having engaged in the same conduct towards Ms Brown as Mr Matthews engaged in.
  5. [87]
    It is now necessary to consider the Respondent’s contention that it is entitled to rely on an exemption under s 106 of the ADA.

The claimed exemption

  1. [88]
    Section 106 of the ADA provides:
  1. (1)
    A person may do an act that is necessary to comply with, or is specifically authorised by—
  1. (a)
    an existing provision of another Act; or
  1. (b)
    an order of a court; or
  1. (c)
    an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or
  1. (d)
    an existing provision of an industrial agreement under the repealed Industrial Relations Act 1999; or
  1. (e)
    an order of the Anti-Discrimination Tribunal.
  1. (2)
    In this section—

existing provision means a provision in existence at the commencement of this section.

  1. [89]
    As I understood the Respondent’s case, it contends that it was entitled to refuse Mr Matthews entry inside the Pub with Kooy2 on the basis that it was required to comply with s 142ZZB of the Liquor Act 1992 (Qld) (the Liquor Act), and that this provided an exemption as provided for by s 106(1)(a) of the ADA.
  2. [90]
    Section 142ZZB of the Liquor Act provides:
  1. (1)
    A licensee or permittee must, in the conduct of business on the relevant premises, provide and maintain a safe environment in and around the relevant premises.

Maximum penalty—100 penalty units.

  1. (2)
    A licensee or permittee must, in the conduct of business on the relevant premises, take all reasonable steps to ensure the use of the premises does not adversely affect the amenity of the area in which the premises are located.

Maximum penalty—100 penalty units.

  1. (3)
    A licensee or permittee must, in the conduct of business on the relevant premises, take all reasonable steps to ensure the behaviour of persons entering or leaving the premises does not adversely affect the amenity of the area in which the premises are located.

Maximum penalty—100 penalty units.

  1. (4)
    If a licensee or permittee knows or has reason to believe that a relevant offence is being, or is about to be, committed in or around the relevant premises, the licensee or permittee must take reasonable steps to stop or prevent the commission of the offence.

Maximum penalty—100 penalty units.

  1. (5)
    For subsection (4), an offence is a relevant offence if the commission of the offence may reasonably be expected to have an adverse impact on—
  1. (a)
    the health and safety of a person in or around the relevant premises; or
  1. (b)
    the amenity of the area in which the premises are located.
  1. (6)
    A licensee or permittee must, in the conduct of business on the relevant premises, engage in the positive practices prescribed by regulation for this section.

Maximum penalty—100 penalty units.

  1. (7)
    A licensee or permittee must not, in the conduct of business on the relevant premises, engage in, or allow another person to engage in, an unacceptable practice prescribed by regulation for this section.

Maximum penalty—100 penalty units.

  1. (8)
    A regulation may prescribe a practice to be a positive practice for subsection (6) or an unacceptable practice for subsection (7) for the purposes of—
  1. (a)
    providing and maintaining a safe environment in and around licensed premises and premises to which permits relate; and
  1. (b)
    ensuring the use of the premises does not adversely affect the amenity of the areas in which they are located.
  1. [91]
    The Respondent expressly relied on s 142ZZB(1) and the requirement that a licensee must, in the conduct of business on the relevant premises, provide and maintain a safe environment in and around the relevant premises (in this case, the Pub).
  2. [92]
    The Respondent submitted that permitting a dog, particularly a small dog (one said to be not easily seen) to be indoors at the Pub off-leash and/or not under the control of Mr Matthews at all times would contravene the requirement to maintain the Pub as a safe environment.
  3. [93]
    The Respondent also submitted that it never had any objection to permitting Mr Matthews and Kooy2 entry to the indoor part of the Pub if Mr Matthews provided the appropriate evidence as to Kooy2’s alleged status as an assistance dog for Mr Matthews, that he kept Kooy2 on a leash and under control at all the times whilst on the Pub premises, and if Mr Matthews was not aggressive and abusive towards staff at the Pub.
  4. [94]
    The difficulty with the Respondent’s submissions is that they do not reflect the fact, as I find to be the case, that the sole reason for refusing access to Mr Matthews and Kooy2 inside the Pub on the occasions the subject of the three Grounds (other than the one month ban) was the absence of identification under the GHAD Act.  The Respondent consistently rejected the Translink Assistance Animal Pass as providing a basis to permit access to Mr Matthews and Kooy2 inside the Pub.  The Respondent, by Mr Bouchard and Mr Welchman, had decided that the Respondent was entitled to refuse access to Mr Matthews and Kooy2 in the absence of production of such identification.  There is no evidence that any employee of the Respondent (on and from November 2017) indicated that Kooy2 would be allowed inside the Pub if she were on a leash and under the control of Mr Matthews at all times.  It was not put to Mr Matthews in cross‑examination, nor do I consider there is a basis for a finding, that Mr Matthews would not have complied with a direction to place Kooy2 on a leash (or on a leash and in a vest) as a condition of Kooy2’s entry inside the Pub.  To the contrary, I accept Mr Matthews’ evidence that there were times when he brought Kooy2 to the Pub on a leash (and with a vest on).
  5. [95]
    There is also no probative evidence that Mr Matthews acted aggressively or abusively towards any staff member prior to the incident the subject of the Second Ground (which conduct occurred in response to Ms Brown directing Mr Matthews to take Kooy2 outside).
  6. [96]
    For the above reasons, I find that the Respondent’s refusal to allow entry to Mr Matthews and Kooy2 inside the Pub was not an act that was necessary to comply with s 142ZZB(1) of the Liquor Act (nor was it an act “specifically authorised” by that provision).  Consequently, the Respondent has failed to prove, on the balance of probabilities, that the exemption applies.  In so finding, this does not mean that the Respondent would not be entitled, in future, to require Kooy2 to be on a leash as a condition of being allowed inside the Pub.  Rather, the Respondent would not be entitled to refuse entry to Mr Matthews and Kooy2 merely because Mr Matthews could only produce a Translink Assistance Animal Pass rather than an identity card under the GHAD Act.

Indirect discrimination

  1. [97]
    Section 11 of the ADA provides:
  1. (1)
    Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term—
  1. (a)
    with which a person with an attribute does not or is not able to comply; and
  1. (b)
    with which a higher proportion of people without the attribute comply or are able to comply; and
  1. (c)
    that is not reasonable.
  1. (2)
    Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—
  1. (a)
    the consequences of failure to comply with the term; and
  1. (b)
    the cost of alternative terms; and
  1. (c)
    the financial circumstances of the person who imposes, or proposes to impose, the term.
  1. (3)
    It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.
  1. (4)
    In this section—

term includes condition, requirement or practice, whether or not written.

Example 1—

An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2—

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.

  1. [98]
    As addressed above, I consider that the same conduct cannot constitute both direct and indirect discrimination under the ADA.
  2. [99]
    With respect to the conduct in relation to banning Mr Matthews from the Pub for a period of one month, I have found that the Respondent did not discriminate against Mr Matthews on the basis of an attribute.  Otherwise, I have found that the Respondent engaged in direct discrimination as addressed above.
  3. [100]
    In these circumstances, and for the reasons addressed above, I consider that the issue of indirect discrimination does not arise for determination.  The issue would turn on the same conduct the subject of the direct discrimination.
  4. [101]
    Nevertheless, for completeness, I will make some brief observations in relation to the issue of indirect discrimination.  In my view, by requiring Mr Matthews to produce an identity card under the GHDA Act, the Respondent imposed a term (being a requirement or practice) with which Mr Matthews did not comply.[28]  For the reasons addressed in relation to direct discrimination, I consider that the Respondent has failed to prove, on the balance of probabilities, that the imposition of the term was reasonable.[29]  However, on the evidence presented to the Tribunal, I could not be satisfied that s 11(1)(b) of the ADA would be engaged, namely, that a higher proportion of people without Mr Matthews’ attribute (impairment) comply or are able to comply with such term.

Relief

  1. [102]
    Mr Matthews seeks the following relief:
    1. (a)
      compensation in the sum of $50,000.00;
    2. (b)
      an apology by the Respondent for the treatment of Mr Matthews;
    3. (c)
      an order that the management and staff of the Pub and the directors of the Respondent be made aware of the rights of a person who has a Translink Assistance Animal Pass;
    4. (d)
      an order that Mr Matthews and Kooy2 be given access to the Pub “in accordance with the rules of an Assistance dog”.

Compensation

  1. [103]
    By s 209(1)(b) of the ADA, the Tribunal may make an order requiring the Respondent to pay to Mr Matthews, within a specified period, an amount the Tribunal considers appropriate as compensation for loss or damage caused by the contravention.
  2. [104]
    The quantum of $50,000.00 claimed by Mr Matthews appears to be based on two aspects, namely hurt and humiliation as well as what appears to be a claim for damages by reference to the cost of renovation of a house at 5 Park Street Woombye.  Mr Matthews states that after a couple of visits to Rachel Aves (Ms Aves), a psychologist, he considered that he needed to “physically” improve his condition and that the best “motivation” for him was to pay someone to do the work at the property.  Mr Matthews slowly worked with others and gave them directions as to what needed to be done.  Mr Matthews has provided a copy of a variety of invoices in relation to the work performed.
  3. [105]
    Ms Aves has provided a report dated 10 November 2021 in which she confirms that Mr Matthews attended at two psychology sessions on 23 April 2021 and 14 May 2021 (and that his “assistance dog” accompanied him).  The report notes that Mr Matthews had symptoms consistent with Major Depressive Disorder with Anxious Distress in the context of managing a dispute with his local pub after they denied access to his assistance dog and that Ms Aves considered that Mr Matthews’ psychometric scores supported his subjective report, showing high levels of distress.
  4. [106]
    However, in my view, neither Ms Aves’ report, nor any of the other medical evidence, establishes any causal link between the direct discrimination engaged in by the Respondent and the need for, or incurring the costs of, the renovation work.
  5. [107]
    With respect to the hurt and humiliation, I accept that the Pub was Mr Matthews’ “social gathering” spot which he generally attended twice a week.  His treatment by the Respondent has plainly caused him significant distress.  I also take into account the lengthy period over which the discrimination occurred.
  6. [108]
    In Jackson the applicant was evicted for having a dog (which was found to be an “assistance dog”) in breach of the “no pets” term in a lease.  The applicant was awarded $10,000.00 for stress, humiliation and loss of dignity caused by the fact and circumstances of the eviction.
  7. [109]
    I accept the Respondent’s contention that the circumstances of being evicted from one’s residence is more serious than Mr Matthews being precluded from bringing his assistance dog inside the Pub (which, as noted, occurred on average twice a week).  However, as submitted by Mr Matthews, the duration of the discriminatory conduct in the present case is a factor which was not present in Jackson.  Despite this, I consider that the overall impact of the conduct in Jackson was more significant than the present case.
  8. [110]
    In all the circumstances, I consider that the amount of $8,000.00 is appropriate compensation for the loss or damage caused by the Respondent’s contravention of s 46 of the ADA.

Apology

  1. [111]
    In Wotton v Queensland (No 5),[30] Mortimer J said the following in relation to whether ordering an apology (under the Commonwealth Act) was an appropriate order to make:[31]

[1553]Nevertheless, while the power to order an apology is not in doubt, courts have generally been reluctant to exercise that power under either s 46PO(4) or cognate provisions in other statutes. The applicants refer to no authorities in support of their submission that an apology order should be made. The respondents refer to the observations of Hely J in Jones v Scully (2002) 120 FCR 243; 71 ALD 567; [2002] FCA 1080 (Jones v Scully) at [245] that “the idea of ordering someone to make an apology is a contradiction in terms”. That observation has some force and it has been followed in a number of other decisions of this Court to which the parties did not refer. In Jones v Toben (2002) 71 ALD 629; [2002] FCA 1150, Branson J said (at [106]) that “I do not consider it appropriate to seek to compel the respondent to articulate a sentiment that he plainly enough does not feel”. In Jones v Bible Believers’ Church [2007] FCA 55, Conti J similarly said (at [65]) that such an order would be “inappropriate”.

[1554]All three of those cases dealt with claims of offensive behaviour based on race arising under s 18C of the RDA, but the approach taken by Hely J in Jones v Scully has also been followed in cases dealing with other types of discrimination. In Forest v Queensland Health [2007] FCA 1236, which dealt with disability discrimination, Collier J expressed the view (at [13]) that “a court-ordered apology serves little purpose”. The Full Court allowed an appeal from her Honour’s decision in Queensland (Queensland Health) v Forest (2008) 168 FCR 532; 249 ALR 145; [2008] FCAFC 96 without reference to her Honour’s comments regarding an apology. In Poniatowska v Hickinbotham [2009] FCA 680 (Poniatowska), a sex discrimination case, Mansfield J expanded on the view that an ordered apology might be inappropriate, focusing on whether such an order would go further than was necessary to “recognise” wrongdoing and whether it would result in an apology that lacked sincerity (at [324]‑[325]):

I do not propose to direct that any apology should be ordered against any respondent in the particular circumstances. Ms Poniatowska has already received an apology from Ms Sharrad in respect of the June 2005 allegations, and from Mr Lotito in respect of the Lotito allegations. Although I have made adverse findings against the respondents other than Mr A Hickinbotham and Homes, in my discretion under s 46PO(4) of the HREOC Act, I do not propose to order that any further apology be given.

There are a number of reasons for that. In the first place, in my view, the adverse findings made against the respondents in respect of the conduct concerning them individually is sufficient recognition for Ms Poniatowska of the inappropriateness of that conduct. The imposition upon those respondents, who variously denied the conduct specifically attributed to them or in some respects denied its significance, would put them in the position of requiring them to apologise for conduct which they did not accept that they had severally engaged in: see for instance the observations of Branson J in Jones v Toben (2002) 71 ALD 629; [2002] FCA 1150 at [106]; Jones v Bible Believers’ Church [2007] FCA 55 at [65].

  1. [112]
    These observations were cited with approval in Reurich at [360]-[361].
  2. [113]
    In my view, the adverse findings made against the Respondent in respect of its discriminatory conduct is sufficient recognition of the inappropriateness of that conduct, particularly where the conduct appeared to have been based on a genuinely formed but erroneous view of its entitlement to refuse entry inside the Pub to Mr Matthews with Kooy2.  I consider that an order for an apology would not be of any real utility and decline to make such an order.

Awareness of rights

  1. [114]
    An order in the terms sought by Mr Matthews does not fit squarely within any of the orders that may be made under s 209 of the ADA.  Subsection 209(1)(f) provides for the making of an order requiring a respondent to implement programs to eliminate unlawful discrimination.  However, I do not consider that such an order is appropriate in the present case.  I consider that the findings made and the order for compensation are sufficient to bring home to the Respondent the gravamen of its conduct towards Mr Matthews.  There is no suggestion that any particular program would be necessary to eliminate any similar discrimination by the Respondent in the future.

Access to the Pub

  1. [115]
    The further order sought that Mr Matthews and Kooy2 be given access to the Pub “in accordance with the rules of an Assistance dog” is also not an order provided for by s 209 of the ADA.  In any event, I consider that it would not be appropriate to make an order in those open-ended terms.  The Respondent is now apprised of the consequences of its treatment of Mr Matthews, particularly in the context of the sufficiency of the Translink Animal Assistance Pass for Kooy2.  I do not consider that any further order is warranted.

Orders

  1. [116]
    For the reasons set out above, the Respondent is ordered to pay to the Applicant, within 28 days of the date of this order, the amount of $8,000.00 as compensation for the loss or damage caused by the Respondent’s contravention of s 46 of the Anti‑Discrimination Act 1991 (Qld).
  2. [117]
    Given that both parties were self-represented, it is not immediately apparent that any issue of costs arises.  However, to accommodate this possibility, I will make the following additional orders:
    1. any party seeking an order for costs must file with the Tribunal, and give to the other party a copy of, written submissions as to costs, no longer than five (5) pages, within 14 days of the date of these orders;
    2. if an application for costs is made pursuant to order number 2:
  1. (i)
    the other party must file with the Tribunal, and give to the other party a copy of, written submissions in reply, no longer than five (5) pages, within 14 days of receipt of the written submissions; and
  1. (ii)
    the application will be determined on the papers and without an oral hearing;
    1. if no application for costs is made pursuant to order number 2, there shall be no order as to costs.

Footnotes

[1]Mr Matthews contends that Kooy2 is an assistance dog.

[2]Insofar as s 174C of the ADA picks up the powers conferred on the Tribunal under the the QCAT Act, in the context of making final orders it may be that the available orders are limited to those set out in s 209 of the ADA and do not include, for example, the powers under ss 58 and 59 of the QCAT Act.  However, I find it unnecessary to decide this question as it does not directly arise for consideration.

[3]ADA, s 204.

[4]ADA, s 205.

[5]ADA, s 206.

[6]ADA, s 208(1)(a).

[7]I find that the services provided by the Respondent were services of a trade or business.

[8][2017] 256 FCR 247.

[9]At [13]-16].  Griffiths J agreeing on various grounds encompassing these observations at [179].  See also Bromwich J at [213].

[10](2018) 360 ALR 296, [2018] FCA 1220, at [241].

[11][2022] FCA 87 at [198].

[12]The definition of “discriminate” adopts the disjunctive “or” in referring to discriminating “whether by direct discrimination or indirect discrimination”.

[13]ADA, s 9(a).

[14]ADA, s 10(1).

[15]ADA, s 10(2).

[16]ADA, s 10(3).

[17]ADA, s 7(h).

[18]See Jackson v Ocean Blue Queensland Pty Ltd & Ors (Jackson) [2020] QCAT 23 at [34] per Member Traves (as Member Traves then was).

[19]Cf Jackson at [36].

[20]In this regard, see the observations of the Full Court of the Federal Court in Mulligan v Virgin Airlines Pty Ltd (2015) 234 FCR 207 (Mulligan) at [125].

[21]Woodforth v State of Queensland (Woodforth) [2018] 1 Qd R 289 at [29] per McMurdo JA, Holmes CJ and Bond JA agreeing.

[22]At [53].

[23]See [148]-[149].

[24]See e.g. [271], [278].

[25]The Respondent adduced no direct evidence from Mr Bouchard.

[26]While the GHAD Act prohibits, for example, a person exercising control of a public place from refusing entry to the place to an “accompanied handler” who is complying with the identification procedure, I find that the GHAD Act does not operate so as to justify refusal of entry where the identification procedure is not followed.

[27]See Peter Williamson Pty Ltd v Capitol Motors Ltd (1982) 61 FLR 257 at 265.

[28]See s 11(1)(a) of the ADA.

[29]See s 11(1)(c) of the ADA.

[30](2016) 352 ALR 146; [2016] FCA 1457.

[31]At [1553]-[1554].

Close

Editorial Notes

  • Published Case Name:

    Matthews v Woombye Pub Trading Pty Ltd

  • Shortened Case Name:

    Matthews v Woombye Pub Trading Pty Ltd

  • MNC:

    [2022] QCAT 301

  • Court:

    QCAT

  • Judge(s):

    Member Lumb

  • Date:

    02 Aug 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Abela v Victoria [2013] FCA 832
1 citation
Jump To
Cite 1 - [2013] FCA 832
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
1 citation
Jump To
Cite 1 - (1989) 168 CLR 165
Australian Medical Council v Wilson (1996) 68 FCR 46
1 citation
Jump To
Cite 1 - (1996) 68 FCR 46
Forest v Queensland Health [2007] FCA 1236
1 citation
Jump To
Cite 1 - [2007] FCA 1236
Jackson v Ocean Blue Queensland Pty Ltd [2020] QCAT 23
3 citations
Jump To
Cite 1 - [2020] QCAT 23
Cite 2 - [2020] QCAT 23
Cite 3 - [2020] QCAT 23
Jones v Bible Believers' Church [2007] FCA 55
2 citations
Jump To
Cite 1 - [2007] FCA 55
Cite 2 - [2007] FCA 55
Jones v Scully (2002) 120 FCR 243
1 citation
Jump To
Cite 1 - (2002) 120 FCR 243
Jones v Scully [2002] FCA 1080
1 citation
Jump To
Cite 1 - [2002] FCA 1080
Jones v Toben (2002) 71 ALD 629
2 citations
Jump To
Cite 1 - (2002) 71 ALD 629
Cite 2 - (2002) 71 ALD 629
Jones v Toben [2002] FCA 1150
2 citations
Jump To
Cite 1 - [2002] FCA 1150
Cite 2 - [2002] FCA 1150
Leach v Burston [2022] FCA 87
2 citations
Jump To
Cite 1 - [2022] FCA 87
Cite 2 - [2022] FCA 87
Mulligan v Virgin Airlines Pty Ltd (2015) 234 FCR 207
1 citation
Jump To
Cite 1 - (2015) 234 FCR 207
Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130
1 citation
Jump To
Cite 1 - [2015] FCAFC 130
Munday v Commonwealth (No 2) (2014) 226 FCR 199
1 citation
Jump To
Cite 1 - (2014) 226 FCR 199
Peter Williamson Pty Ltd v Capitol Motors Ltd (1982) 61 FLR 257
2 citations
Jump To
Cite 1 - (1982) 61 FLR 257
Cite 2 - (1982) 61 FLR 257
Poniatowska v Hickinbotham [2009] FCA 680
1 citation
Jump To
Cite 1 - [2009] FCA 680
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
1 citation
Jump To
Cite 1 - (2003) 217 CLR 92
Queensland Health v Che Forest [2008] FCAFC 96
1 citation
Jump To
Cite 1 - [2008] FCAFC 96
Queensland v Forest (2008) 168 FCR 532
1 citation
Jump To
Cite 1 - (2008) 168 FCR 532
Reurich v Club Jervis Bay Ltd [2018] FCA 1220
2 citations
Jump To
Cite 1 - [2018] FCA 1220
Cite 2 - [2018] FCA 1220
Reurich v Club Jervis Bay Ltd (2018) 360 ALR 296
2 citations
Jump To
Cite 1 - (2018) 360 ALR 296
Cite 2 - (2018) 360 ALR 296
Sklavos v Australasian College of Dermatologists [2017] 256 FCR 247
2 citations
Jump To
Cite 1 - [2017] 256 FCR 247
Cite 2 - [2017] 256 FCR 247
State of Queensland (Queensland Health) v Che Forest (2008) 249 ALR 145
1 citation
Jump To
Cite 1 - (2008) 249 ALR 145
Walker v Victoria (2011) 279 ALR 284
1 citation
Jump To
Cite 1 - (2011) 279 ALR 284
Walters v Public Transport Corporation (1991) 173 CLR 349
1 citation
Jump To
Cite 1 - (1991) 173 CLR 349
Woodforth v State of Queensland[2018] 1 Qd R 289; [2017] QCA 100
2 citations
Jump To
Cite 1 - [2018] 1 Qd R 289
Cite 2 - [2018] 1 Qd R 289
Wotton v Queensland (No 5) (2016) 352 ALR 146
2 citations
Jump To
Cite 1 - (2016) 352 ALR 146
Cite 2 - (2016) 352 ALR 146
Wotton v State of Queensland (No 5) [2016] FCA 1457
2 citations
Jump To
Cite 1 - [2016] FCA 1457
Cite 2 - [2016] FCA 1457

Cases Citing

Case NameFull CitationFrequency
Gitau v De Soysa Walsh Pty Ltd [2023] QCAT 1892 citations
Hope v Danianarnie Pty Ltd [2025] QCAT 2752 citations
1

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