AEJ v Karen Rozema[2022] QCAT 355

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Complaints

1. [1]
   This proceeding relates to complaints of direct and indirect discrimination in the area of provision of accommodation and an unlawful request for information on which discrimination could be based.

Parties to the proceeding

2. [2]
   On 19 August 2019 the then Anti-Discrimination Commission of Queensland (ADCQ) referred a complaint made by the applicant AEJ through his mother GS, as representative; and a complaint made by GS.
3. [3]
   AEJ is a young person, his date of birth being 21 December 2005. By an order made 17 December 2021, the identity of AEJ has been made the subject of a non-publication order. To prevent identification of AEJ by reference to his family, I have also de-identified the second applicant and the grandmother of AEJ, LH, who gave evidence in the proceeding
4. [4]
   The third respondent Tiger Bun Pty Ltd has the management rights to Biarritz Apartments where the incidents the subject of the complaints occurred. The first respondent Karen Rozema and the second respondent Tom Rozema are engaged by Tiger Bun Pty Ltd as managers at the apartments.
5. [5]
   I set out below the evidence in the proceeding. Where there is a relevant dispute as to the facts, it is noted. Otherwise, the evidence is accepted and I find that the facts are in accordance with the evidence.

The events which gave rise to the complaints.

6. [6]
   GS, AEJ and LH flew to the Gold Coast from Adelaide for a holiday, staying at Biarritz apartments from 9 January 2019 to 17 January 2019. The booking was made through Wotif. GS says that she told Wotif the family would be travelling with an assistance dog.
7. [7]
   AEJ uses an assistance dog, Simba, a maltese/shih-tzu/poodle, to assist with his autism condition, which causes him to have problems going out into the community. Simba is an assistance dog as defined.^[1]
8. [8]
   The information about an assistance dog travelling and staying with the family was not passed on to Biarritz Apartments.
9. [9]
   Upon arrival on the night of 9 January 2018 the family was met by a security guard who allegedly said that the dog should not set foot in the apartments and that no dogs are allowed. Upon being told the dog is an assistance dog, the keys to the unit were given to GS.
10. [10]
    GS went to check in the following morning and spoke to the people at reception, Karen and Tom Rozema and Deborah Koy. At that time Simba was with GS on a lead. Simba wears a vest bearing the words “Assistance Dog.” There is some dispute as to whether the security guard on duty the night before was also present. I do not think anything turns on that issue.         
11. [11]
    Karen and Tom Rozema were unaware that Simba would occupy the apartment with the family. GS was told that the owner of the unit did not want to have an animal in her apartment and that if they had known a different apartment would have been allocated.
12. [12]
    GS explained that Simba is an assistance dog, provided a copy of the licence describing the status of the dog and that she is the adult and handler of the dog. GS gave the reception staff the telephone number of Disability Aid Dogs to call in relation to the entitlements of persons using an assistance dog. Some time later that day, Tom Rozema spoke to a representative of that organization, Anita Gustafsson.
13. [13]
    During the discussion with the reception staff, Tom Rozema asked GS to carry Simba or put her in a shopping trolley when they were on common property and to take the trolley down to the basement car park in order to exit the building with the dog. Tom Rozema says that he told GS that is what is done by owners in the building who have dogs.  There is a dispute as to this evidence. GS says that she was not told that is what is done by owners in the building with dogs. GS says that she was told, not asked to use a trolley to carry Simba in the common areas.
14. [14]
    GS says in her complaint filed with the Anti-Discrimination Commission of Queensland (now the Human Rights Commission) that Karen Rozema asked her “What the dog is for” and that GS told her Simba was for her son’s autism. In her amended statement of contentions GS says that Karen Rozema “demanded to know what my son’s disability was.” Karen Rozema denies asking those questions.
15. [15]
    Simba usually walks between GS and AEJ. Simba alerts GS to any problem with AEJ. This information was not given to Tom or Karen Rozema.
16. [16]
    There is a dispute on the evidence as to whether Anita Gustafsson told Tom Rozema that “they do not have the right to alienate the assistance dog by the trolley procedure.”^[2] Ms Gustafsson agreed in cross-examination that she may not have used those words. Her evidence in cross-examination was not clear as to whether she had explained how Simba was trained to walk with AEJ and GS.
17. [17]
    After check in, GS was shown around the building by Karen Rozema, including being shown the indoor pool and the basement car park, and was shown a trolley to use.
18. [18]
    Later that day Karen Rozema went to the family’s apartment to assist LH with use of the cook top. A discussion took place about use of the garbage chute for disposing of dog waste. There is a dispute on the evidence as to whether Karen Rozema referred to “doggy smells” to which LH took offence.
19. [19]
    GS had no further contact with Karen or Tom Rozema for the balance of the family’s stay. The family stayed in the apartment for the full period booked by GS.

Impact of the 10 January 2019 conversations

20. [20]
    During the stay, GS used the trolley to transport Simba on common property because she did not want to cause trouble. GS thought that she was required to follow this procedure and was advised to do so by her contact at Disability Aid Dogs.
21. [21]
    GS used the basement car park to exit the building with Simba in the trolley, leaving AEJ and LH to exit by reception because of difficulty using the ramp in the car park. The family were unable to walk together as a result. GS said that she was unaware there was a flat path to the outdoor swimming pool which could have been used. GS did not think the outdoor pool could be accessed with Simba in a trolley, because of the steps she observed.
22. [22]
    During the course of the stay GS was worried that the family might be asked to leave the apartment. There is no evidence that anything to that effect was said to her.
23. [23]
    GS did not make any complaint about use of the trolley, however, after some days, GS said to the receptionist Deborah Koy that she was not happy with the situation. No explanation of the comment was given to Ms Koy.
24. [24]
    GS says that she was anxious throughout the stay, that her blood pressure rose and that the holiday was spoiled.
25. [25]
    GS says that AEJ was agitated by taking Simba in the trolley and that during the holiday he was crying, agitated and could not settle. GS says that he had a few “meltdowns” which Simba can usually prevent. GS was worried by her son’s reaction because he can become violent.
26. [26]
    GS said that Simba needs to be free and available at ground level and that it was confusing for Simba to be in the trolley. GS said that carriage in the trolley was against Simba’s training, and Simba could not do her job.

Legislative Framework

27. [27]
    The Anti-Discrimination Act 1991 (Qld) (AD Act) prohibits discrimination on the basis of certain attributes, including impairment and association with, or relation to, a person identified on the basis of any of an attribute.^[3] Discrimination in the area of provision of accommodation is prohibited.^[4]
28. [28]
    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.^[5]
29. [29]
    The complainant must prove, on the balance of probabilities that the respondents contravened the Act by direct discrimination.
30. [30]
    Indirect discrimination occurs if, on the basis of an attribute a person imposes, or proposes to impose a term –

    1. with which a person with an attribute does not or is not able to comply; and
    2. with which a higher proportion of people without attribute comply or are able to comply; and
    3. that is not reasonable.
31. [31]
    A term includes a condition, requirement or practice, whether or not written.
32. [32]
    Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example –

    1. the consequences of failure to comply with the term; and
    2. the cost of alternative terms; and
    3. the financial circumstances of the person who imposes, or proposes to impose, the term.^[6]
33. [33]
    In cases involving an allegation of indirect discrimination, the respondent must prove, on the balance of probabilities, that a term complained of is reasonable.^[7]
34. [34]
    Section 83 of the AD Act provides:

83 Discrimination in accommodation area

A person must not discriminate against another person –

1. in any variation of the terms on which accommodation is supplied; or
2. in denying or limiting any access to any benefit associated with the accommodation; or
3. in evicting the other person from the accommodation; or
4. by treating the other person unfavourably in any way in connection with the accommodation.

35. [35]
    Section 85 of the Antidiscrimination Act provides:

85. Discrimination by refusing to allow guide, hearing or assistance dog

1. (1)
   A person must not discriminate by doing any of the following –

   1. refusing to rent accommodation to another person because the other person has an impairment and relies on a guide, hearing or assistance dog;
   2. requiring the other person to keep the dog elsewhere;
   3. requesting or requiring the other person to pay an extra charge because the dog lives at the accommodation.
2. (2)
   This section does not affect the liability of the person with the dog for any damage caused by the dog.

36. [36]
    “Accommodation” includes a house or flat.^[8] The apartment rented by GS is accommodation for the purpose of the AD Act.
37. [37]
    It is not in contention that Tiger Bun Pty Ltd is vicariously liable for any contravention of the AD Act by its workers, Karen and Tom Rozema^[9]. The three respondents may be jointly and severally civilly liable for a contravention of the AD Act. It is a defence if a respondent proves, on the balance of probabilities that it took reasonable steps to prevent a worker contravening the Act.
38. [38]
    Section 124 of the AD Act provides that a person must not ask another person, either orally or in writing to supply information on which unlawful discrimination might be based. It is a defence if the respondent proves on the balance of probabilities that the information was reasonably required for a purpose that did not involve discrimination.

Issues

39. [39]
    The following issues arise for determination:

    1. What was the allegedly discriminatory treatment?
    2. Was there direct discrimination? Relevant to this enquiry is:
       1. (i)
          why were AEJ and GS treated in the way they complain about?
       2. (ii)
          Was the treatment on the basis of their attributes?
       3. (iii)
          Were AEJ and GS treated less favourably than another person without their attributes? In this regard – who is the appropriate comparator?
       4. (iv)
          When considering comparative treatment, what are the circumstances that are the same or not materially different?
    3. Was there indirect discrimination? Relevant to this enquiry is:
       1. (i)
          what is the term said to be imposed on AEJ and GS?
       2. (ii)
          Could AEJ and GS comply with the term?
       3. (iii)
          Could a higher proportion of people without the attribute comply or are able to comply with the term?
       4. (iv)
          Is the term reasonable?
    4. Has there been discrimination in the provision of accommodation?
    5. Has there been a contravention of s124 of the AD Act?
    6. What remedy is sought?

What was the allegedly discriminatory treatment of AEJ and GS

40. [40]
    I find that the allegedly discriminatory treatment, the subject of this proceeding is AEJ and GS:

    1. being required to transport Simba in a shopping trolley across the common areas of the apartments; and
    2. being required to exit the building with Simba in a shopping trolley via the basement carpark.
41. [41]
    I find that whether GS was asked or told to transport Simba in a shopping trolley, that was the request made of GS and that was the preference of Karen and Tom Rozema. GS complied with the request.

Direct Discrimination

Why were AEJ and GS treated in the way complained about?

42. [42]
    I find on the basis of Karen and Tom Rozema’s evidence that the request to transport Simba in a shopping trolley across the common areas and to exit the building with Simba via the basement car park was because that is the practice of owners of apartments in the building who have dogs and that is the requirement of the body corporate committee.
43. [43]
    In response to a question from me, Karen Rozema was unable to provide the rationale for use of a shopping trolley other than to say that it is a body corporate committee requirement.
44. [44]
    I find that Tom Rozema told GS that owners with dogs used a shopping trolley and that they exited with their dogs via the basement car park. I find that is what occurs at the apartments.
45. [45]
    I consider both Tom and Karen Rozema are credible witnesses, they were straightforward in giving evidence.  Tom Rozema was knowledgeable about the body corporate by-laws in relation to dogs in the apartment building and was in a good position, given his role, to observe the conduct of other persons with dogs in the building. It is possible that GS’s recollection of the conversation with Tom Rozema is affected by her agitation and upset on checking in and discussing Simba with the reception staff.
46. [46]
    I do not accept as put by GS that there were no other dogs in the building. I cannot draw an inference that the requirement to transport Simba in a shopping trolley was invented especially for Simba.

Was the treatment of AEJ and GS on the basis of their attributes.

47. [47]
    In view of my finding as to the reason for the treatment complained about, I cannot find that AEJ and GS were required to transport Simba in a shopping trolley because of AEJ’s impairment, in the sense of needing an assistance dog or because GS is associated with or related to AEJ and his need for an assistance dog. The treatment was because of the body corporate committee requirement.

Were AEJ and GS treated less favourably than a comparator in circumstances that were the same or not materially different?

Who is the comparator?

48. [48]
    Direct discrimination occurs where there has been less favourable treatment compared to another person who does not have the relevant attribute, and in circumstances that are the same or not materially different.
49. [49]
    That analysis requires the formulation of a comparator. GS has not disputed the contention by the respondents that the hypothetical comparator is a person who stayed at the Biarritz Apartments, who did not have an impairment as a result of which he relied on an assistance dog.^[10]

What are the circumstances that are the same or not materially different?

50. [50]
    Although, use of an assistance dog must be removed from the formulation of the comparator,^[11] it remains to be determined whether the presence of a dog (not an assistance dog), in company with a person staying at the apartments, forms part of the surrounding circumstances.
51. [51]
    It is a nonsense to say that a person who was staying at the apartments and who did not have an assistance dog, or a dog, would not be asked to carry a dog in a trolley. The comparison only has a point if the circumstances in which the relevant treatment occurred is taken into account.^[12] Circumstances that are the same or not materially different are that a person staying at the apartments has a dog.

Were AEJ and GS treated less favourably than a person who did not have an assistance dog, but who was staying at the apartments with a dog?

52. [52]
    Given that other dog owners staying at Biarritz Apartments are asked to carry their dogs in trolleys on common areas and to exit via the basement carpark, there was no different treatment accorded to AEJ than to the comparator. Accordingly, there has been no treatment which is less favourable than the treatment of owners of apartments who have dogs.

Conclusion

53. [53]
    For these reasons, I conclude that there has been no direct discrimination of AEJ and GS, because they were not, on the basis of their respective attributes, treated less favourably than another person staying at Biarritz Apartments who had a dog, not being an assistance dog.
54. [54]
    If there has been no less favourable treatment of AEJ and GS which establishes direct discrimination, it follows that AEJ and GS were not the subject of discrimination through unfavourable treatment in connection with accommodation at Biarritz Apartments, for the purpose of s84(d) of the AD Act.
55. [55]
    No part of s 85 of the AD Act is established on the evidence.

Has there been indirect discrimination?

56. [56]
    It is helpful to recall that indirect discrimination under s11 the AD Act does not require a difference in treatment as does direct discrimination under s10 of the AD Act. Instead, the treatment is the same, but it has a different effect.  This is because it has a disparate effect on those persons who have the attribute.^[13]

What is the term said to be imposed on AEJ and GS?

57. [57]
    I find that the term, or requirement, imposed on AEJ and GS was that:

    1. Simba be carried in a trolley on the common areas; and that
    2. Simba exit the building via the basement carpark.

Could AEJ and GS comply with the term?

58. [58]
    It is apparent that AEJ and GS did comply with the requirement. However, I note that in the decision of Hurst v Queensland^[14], the Full Court of the Federal Court found that it was an error to say that because a person could ‘cope’ that the person was ‘able to comply’. The Full Court said that the question to be asked is whether the condition or requirement had the effect of causing disadvantage. That case was relied on in the decision of Jackson v Ocean Blue Queensland Pty Ltd and Ors.^[15]
59. [59]
    The evidence of GS is that AEJ was caused distress by carrying Simba in the trolley and that AEJ was more difficult to manage because of the change to their usual routine in walking with Simba between them. There is no medical evidence to this effect, however, I have no reason not to accept the evidence of GS. She is plainly a passionate protector and carer of AEJ and I consider she was truthful in giving this evidence.
60. [60]
    GS says that she suffered anxiety and increased blood pressure as a result of her concern that the family would be asked to leave because of the presence of Simba at the apartment and because of the effect on AEJ of Simba being carried in the trolley. There is no medical evidence to this effect, however I accept that GS was caused stress and anxiety by the reaction of AEJ. I do not consider that there is any rational basis for GS to have feared that the family would be asked to leave the apartments as no suggestion was made by anyone to that effect.
61. [61]
    I find that requiring Simba to travel in a trolley caused disadvantage to AEJ and GS in complying with the requirement as to carriage of Simba. On this basis I find that AEJ and GS were not able to comply with the requirement.

Could a higher proportion of people without the attribute comply?

62. [62]
    I find as a matter of common knowledge that carriage of a dog in a trolley and the required mode of exit were terms which could be complied with by a higher proportion of people without the relevant attributes and that it would not cause them distress or lack of ability to comply.

Is the term reasonable?

63. [63]
    During the hearing I asked Karen Rozema why use of a trolley was required to transport dogs in the common area. Ms Rozema could give no rationale for the requirement other than it was a body corporate committee requirement for owners with dogs.
64. [64]
    There is no evidence before the Tribunal, relevantly, as to the consequences of failure to comply with the requirement or the cost of an alternative requirement. 
65. [65]
    I cannot think of a detrimental consequence of a small dog on a lead walking through the common areas of the apartments which might justify the requirement to travel in a trolley on common areas and to exit via the basement. This is particularly as Simba wears a coat bearing the words assistance dog and as an assistance dog, is fully trained.
66. [66]
    I find that the respondents have not discharged the onus of establishing that the requirement as to carriage by Simba in a trolley, is a reasonable requirement.

Conclusion

67. [67]
    On the basis of these findings, I conclude that there has been indirect discrimination of AEJ and GS.
68. [68]
    I find that AEJ and GS were indirectly discriminated against by being treated unfavourably in connection with their accommodation at Biarritz Apartments, in contravention of s 83(d) of the AD Act. The unfavourable treatment was the distress caused to AEJ and GS due to the different way in which Simba was required to be transported.

Has there been a contravention of s 124 of the AD Act?

69. [69]
    There is a conflict in the evidence as to whether Karen Rozema questioned GS as to what the assistance dog was for or what the disability might be. There have been differing versions of what is alleged to have been said given by GS, including in her original complaint to the ADCQ and in her amended statement of contentions filed in the Tribunal.
70. [70]
    Karen Rozema denied asking the questions alleged. She was not cross-examined in relation to her denial. No evidence was given by any other witness in the vicinity. I find that GS’s recollection of the discussion is unreliable.  That is understandable because she was upset in relation to the discussions at reception about the assistance dog.
71. [71]
    Because of the different questions attributed to Karen Rozema and her stringent denial, I find that there is insufficient reliable evidence to find that either of the alleged questions was asked by her. On this basis I find that there has been no contravention of s 124 of the AD Act.

Vicarious Liability

72. [72]
    The respondents do not contest that the third respondent is vicariously liable for any unlawful discrimination resulting from the conduct of its workers, Karen and Tom Rozema.

Remedy

73. [73]
    GS claims compensation in an amount of $19,099.00. The sum is comprised as follows:

    1. Refund of the full cost of the holiday $3,099.00.
    2. Compensation $10,000.00 for stress, physical, emotional suffering and insult and humiliation caused to AEJ.
    3. $6,000.00 to GS for the stress, hurt, suffering, insult and humiliation caused by  unlawful discrimination.
74. [74]
    I do not intend to award repayment of the costs of the holiday because the holiday was undertaken for the full period booked. I do not consider there is sufficient evidence to establish that every part of the holiday was spoiled.
75. [75]
    GS has also sought orders that the managers attend assistance dog training and that they be awarded costs.
76. [76]
    I do not consider after the experience of this litigation and the reasons given in this decision that there could be any lack of understanding on the part of the respondents as to the role of assistance dogs and their obligations not to discriminate against a person because of their use of an assistance dog. I decline to make the order sought.
77. [77]
    In relation to costs, GS has been self-represented as has AEJ, represented by his mother. No leave for legal representation has been given. In those circumstances there is no entitlement to an award of costs for legal expenses.
78. [78]
    Because there has been a finding of unlawful discrimination and a finding that both AEJ and GS have suffered distress at their treatment I intend to make a compensatory award to each of them.
79. [79]
    By s 209 of the AD Act the Tribunal may make an order requiring the respondents to pay the applicants an amount the Tribunal considers appropriate as compensation for loss or damage caused by a contravention. Damage is defined to include offence, embarrassment, humiliation, and intimidation suffered by a person.^[16]
80. [80]
    The respondents submit that the letter form Dr Karen Teo, Cardiologist, dated 19 September 2019^[17] filed in relation to GS’s medical condition does not go to any question of exacerbation of her condition as a consequence of the conduct of the respondents.
81. [81]
    It is also said that there is no medical evidence as to how AEJ was impacted by the alleged discrimination. The only medical evidence before the Tribunal in relation to AEJ is a letter from the Women’s and Children’s Health Hospital, Adelaide, dated 11 November 2019, setting out AEJ’s condition.
82. [82]
    It is submitted that the Tribunal cannot be satisfied, in the absence of cogent and clear medical evidence that the alleged discrimination exacerbated the applicant’s symptoms. I accept that there is insufficient evidence to find that either AEJ or GS suffer from a medical condition or exacerbation of a medical condition caused by their treatment.
83. [83]
    The definition of damages in the AD Act contemplates an award of compensation for the sort of distress, including hurt and humiliation suffered by AEJ and GS without the need for a finding of physiological or psychological injury. I accept the evidence of GS as to AEJ’s distress about Simba, and her anxiety in managing him.
84. [84]
    The respondent has provided some comparative cases in relation to compensation^[18] particularly involving unlawful discrimination where an assistance dog was involved. I consider the awards involved in those cases reflect more serious harm caused to the complainants than has been established in this case.
85. [85]
    I award compensation of $8,000.00 to AEJ.
86. [86]
    I award compensation of $5,000.00 to GS.
87. [87]
    The respondents are jointly and severally liable to pay the awards.^[19]
88. [88]
    By s 59(1) of the Public Trustee Act 1978 (Qld) an award of damages following a claim by a person under a legal disability can only paid to, for example, the person’s next friend if the court so directs. The Tribunal is a court for this purpose.^[20]
89. [89]
    GS submits that a bank account has been set up with AEJ as the beneficiary and that the funds are used for his benefit.^[21] The respondents accept that it is appropriate for the Tribunal to direct that compensation on behalf of AEJ be paid to a specific account only for AEJ’s benefit.
90. [90]
    Consistent with the reasoning in CH v State of Queensland,^[22] I consider that it is cost efficient and beneficial to AEJ that the award be paid to his mother as trustee for AEJ pursuant to the power of the Tribunal to do so in s59(1) of the Public Trustee Act 1978 (Qld). Consistent with the reasoning in CH’s case, I do not consider that appointment of an administrator is necessary.^[23]
91. [91]
    GS has not formally made an application in that respect, however she has submitted that this course of action should be adopted.^[24] I waive any requirement for compliance with procedural requirements under the Queensland Civil and Administrative Tribunal Act 2009 (Qld).^[25]

Orders

92. [92]
    The Tribunal orders that:

    1. Within 14 days of the date of this Order GS must provide the respondents’ legal representatives with details of a bank account of which GS is trustee for AEJ.
    2. Within 28 days of the date of this Order, the respondents Karen Rozema, Tom Rozema and Tiger Bun Pty Ltd must pay to AEJ the sum of $8,000.00 by depositing that amount by cleared funds into the bank account nominated by GS pursuant to Order number 1.
    3. Within 28 days of the date of this Order the respondents Karen Rozema, Tom Rozema and Tiger Bun Pty Ltd pay the sum of $5,000.00 by cleared funds to GS.
    4. The Order made on 17 December 2020 prohibiting publication of information that may identify the child applicant in this matter is continued.