No. 96/157
Number of pages - 30
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
STEPHEN KEIM
COFFS HARBOUR, 6-8 May and 20 June 1997 (hearing), 29 August 1997 (decision)
#DATE 29:8:1997
#ADD 10:9:1997
Appearances:
Mr P. Batley, Solicitor, Legal Aid Office, Coffs Harbour for the Complainant.
Mr. P. Jamieson, Solicitor, Koops Martin, Coffs Harbour for the Respondent.
Order: complaint substantiated.
STEPHEN KEIM
By a letter dated 7 August 1995, Ian Cooper made a complaint (Exhibit 13) to the Human Rights and Equal Opportunity Commission ("the Commission") which alleged breaches of ss. 23 and 24 of the Disability Discrimination Act ("the DDA").
The action by Mr Cooper was signed as President of the North Coast Disability Information Advocacy and Lifestyle ( also known as "DIAL") and was said to be on behalf of members of that organisation who are confined to wheelchairs.
The respondent to the complaint was described as Holiday Coast Cinema Centres Pty Ltd ("the Respondent"). The Respondent was described as the holder of a Development Application approval to build a new cinema in an existing complex in Coffs Harbour.
The Complaint also named Coffs Harbour City Council ("the Council") as a respondent. When the matter was referred for inquiry by the Commission by the Disability Discrimination Commissioner ("the Commissioner") pursuant to s. 76 of the DDA, the Council was not named as a respondent. Accordingly, the Council is not a respondent for the purposes of the Inquiry. The referral document, dated 7 October 1996, is Exhibit 12 in the proceedings.
By the time the matter came on for hearing, the changes to the cinema complex had been completed. It was common ground that wheelchair access had not been provided either to the complex or the new cinema.
Pursuant to directions made prior to the hearing, the solicitors for the complainants clarified the identity of the complainants. The complainants at the time of the hearing are set out in Exhibit 23. Apart from Mr Cooper, they are: Phillip Smith; Raymond Munro; Jim Perrin; Brenda Gadsby; Nicole O'Callaghan; Olive B. Boundy; and Hank Duchateau.
The orders sought by the complainants were also clarified pursuant to directions. These are set out in Exhibit 24 and read as follows:
"1.The Respondent has unlawfully discriminated against the complainant and the members of the North Coast DIAL Incorporated who rely on wheelchairs by:
refusing them access to premises in Vernon Street, Coffs Harbour, formerly known as Coffs Harbour Cinema Centre and now known as City Centre 3 Cinema ("the premises"); in the terms or conditions on which it was prepared to allow them access to the premises; in relation to the provision of means of access to the premises; refusing to provide them with goods or services at the premises; refusing to make facilities available to them at the premises; in the terms or conditions on which it provided them with goods or services at the premises; in the terms or conditions on which it made facilities available to them at the premises.
The Respondent should not repeat or continue the unlawful discrimination.
The Respondent shall within six (6) months of these orders: install a wheelchair platform stairlift connecting the ground level entrance to the premises to the ticket office level and the candy bar foyer level; install a wheelchair platform stairlift connecting the candy bar foyer level to the entrance level for cinema 1 and Cinema 2; install a wheelchair platform stairlift from the entrance level for Cinema 1 and Cinema 2 to the entrance to Cinema 3; in the alternative: modify the existing toilets in the premises to make them accessible to people using wheelchairs; or install an accessible toilet at the candy bar foyer level of the premises.
4. Pay the Complainant and each person named in the document filed in these proceedings entitled "members of DIAL" compensation."
Provisions of the Disability Discrimination Act ("the Act")
The Act was assented to on 5 November 1992 and all of its provisions had commenced by 1 March 1993.
Section 23 provides as follows:
"Section 23 Access to Premises 23(1) [Refusal, Terms and Conditions Etc] It is unlawful for a person to discriminate against another person on the ground of the other person's disability or a disability of any of that person's associates: (a) by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or (b) in the terms or conditions on which the first mentioned person is prepared to allow the other person access to, or the use of, any such premises; or (c) in relation to the provision of means of access to such premises; or ...... (f) by requiring the other person to leave such premises or cease to use such facilities.
23.(2) [Where access would impose unjustifiable hardship] This section does not render it unlawful to discriminate against a person on the ground of the person's disability in relation to the provision of access to premises if: (a) the premises are so designed or constructed as to be inaccessible to a person with a disability; and (b) any alteration to the premises to provide such access would impose unjustifiable hardship on the person who would have to provide that access."
Section 24 reads as follows:
Section 24 Goods, Services and Facilities 24.(1) [Refusal, terms or conditions, manner of provision] It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground that the other person's disability or a disability of any of that other person's associates: (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or (b) in the terms or conditions on which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or (c) in the manner in which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
24.(2) [Where provision would impose unjustifiable hardship] This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available."
Section 4 of the Act is a definition section. Disability is defined as follows:
"'Disability', in relation to a person, means: (a) total or partial loss of the person's bodily or mental function; or .... (e) the malfunction, malformation or disfigurement of a part of the person's body; ...."
It was common ground that the complainants suffered from a disability namely, inter alia, a partial loss of their bodily functions. The relevant loss in each case affected their ability to use stairs easily and readily.
It also seemed to be common ground that access to the respondent's cinema or the use of that cinema was only available on certain terms and conditions. These can be expressed as either a condition that one is able to use steps or that one is prepared to provide one's own assistance or to receive assistance from the employees of the cinema to get up those steps. (Mr Cooper, in his evidence, described having experienced great apprehension on his part, on a particular occasion, that either he and/or those who carried him up the steps would be seriously injured.) This approach to ss. 23 and 24 is clearly in accordance with the approach taken in cases such as Waters v The Public Transport Corporation (1991) 173 CLR 349 and Cox v State of Queensland (1994) EOC 92-612.
This approach is also supported by the provisions of ss. 5 and 6 of the Act. Section 5 defines disability discrimination as follows:
"Section 5 DISABILITY DISCRIMINATION 5(1) [Less favourable treatment] For the purposes of this Act, a person (discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
5(2) [Where different accommodation required] For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability."
Section 6 deals with the concept of indirect disability discrimination. It reads as follows:
"Section 6 INDIRECT DISABILITY DISCRIMINATION 6. For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of disability of the aggrieved person if the discriminator requires the aggrieved person to comply with the requirement or condition: (a) with which a substantially higher proportion of persons without the disability comply or are able to comply; and (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the aggrieved person does not or is not able to comply."
Obviously, people with a disability which requires them to use wheelchairs to get around are not able to negotiate stairs unaided in great numbers. I consider that this is a case where s. 6 is relevant. I consider that the requirement or condition of being able to use the stairs to access the cinema is one with which a substantially higher proportion of persons without a mobility disability can comply.
Subject to the issue whether a requirement that the respondent provide access in the form of platform stairlifts amounted to unjustifiable hardship on the part of the respondent, it seems clear that the discrimination comprehended by s. 23 and probably also by s. 24 was present. Therefore, the thrust of my inquiry has addressed the issue of unjustifiable hardship. The respondent argued that it was legally impossible to provide such access. The respondent also argued that it would cause unjustifiable financial hardship to the respondent to be required to install platform stairlifts in the complex.
Unjustifiable hardship is defined by s. 11. It provides as follows:
"Section 11 Unjustifiable Hardship 11. For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including: (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and (b) the effect of a disability of the person concerned; and (c) the financial circumstances and the estimated expenditure required to be made by the person claiming unjustifiable hardship; and (d) in the case of the provisions of services, or the making available of facilities - an action plan given to the Commission under s. 64."
Although the respondent pointed to some correspondence which suggested some vague intentions that had not come to pass, there was in fact no action plan to satisfy s. 64 to be taken into account.
There was some dispute between the parties as to how broadly one should construe the phrase "any persons concerned". Each party sought to interpret the phrase broadly so far as their own case was concerned but was not so keen to do so in terms of the other party's case.
I am of the view that the phrase should be interpreted broadly. I am of the view that it is appropriate not only to look to the complainants themselves but also their families and to other persons with disabilities restricting their mobility who might, in the future, be able to use the respondent's cinema. In the same way, in terms of the effect of the order on the respondent, it is appropriate for me to look at the hardship that might be suffered by the shareholders of the respondent; its employees; and also its current and potential customers. The latter groups of people are particularly important in terms of financial hardship from an order forcing the cinema complex to close.
The Cinema Complex
The respondent's cinema complex is located on the southern side of Vernon Street, Coffs Harbour opposite the Ex-Services Club. Vernon Street is one block north of the High Street Mall (the main street). Vernon and High Streets both run off the Pacific Highway which runs through downtown Coffs Harbour.
To enter the cinema, one goes through a double doorway and a short distance straight ahead is a stairway. Inside the door, on the left hand side is a sprinkler valve room. The effect of the sprinkler valve room at that location has some significance in the evidence for the practicality of certain ways of providing wheelchair access to the building. Exhibit 39 is a videotape which shows, inter alia, the front entrance to the cinema complex.
At the top of the staircase, is the ticket box level. In the south-west corner of an open space is a box wherein cinema tickets are sold. To the east of the ticket box is a narrow passageway which proceeds in a southerly direction to male and female toilets.
From the ticket box level, a staircase proceeds upwards in an easterly direction. At the top of that staircase one enters the foyer or Candy Bar level. A mud map of the foyer level drawn by Mr Colquhoun is exhibit 26. On the eastern side of the foyer level is the candy bar and, beyond that, a store room. The store room area was suggested by Mr Deshon as a possible location for a unisex toilet for disabled persons. The practicality of that suggestion was disputed by Mr Colquhoun.
A staircase departs the foyer level in the south-west corner heading upwards and in a westerly direction. This leads up to the cinema level.
The entrance to cinema 1 is to the south of the top of the staircase. To the north of the top of the staircase, at the end of a short passage is the entrance to cinema 2. The entrances to cinema 1 and 2 are on the same level as the top of the staircase.
As one proceeds towards the entrance to cinema 2, one comes to a doorway on the right which is the entrance to cinema 3. However, after passing through the doorway, one must climb a further staircase to reach the entrance to cinema 3 proper.
The alterations that occurred in 1995 are summarised in a report of Mr Deshon, Exhibit 4 at pp. 2 and following. (It is common ground that the cry rooms described therein were not constructed). In a very summary form, cinema 3 is a new cinema built on an extended mezzanine floor which previously contained toilets.
Cinemas 2 and 3 were unchanged apart from a new fit-out including new seating. The toilets, candy bar and ticket box all were rebuilt. The staircase to the cinema level was rebuilt.
All cinemas have alternative exits at the front or screen end. These lead out to the street, eventually, via a common staircase. With the construction of cinema 3, the alternative exits needed to be modified to allow for the new cinema.
The Architects
John Popham Deshon was called by the complainants. He provided two reports (Exhibits 4 and 5). Supplementary information is contained in Exhibits 11, 20 and 21. Mr Deshon's curriculum vitae, which also forms part of Exhibit 4, shows him to be an experienced architect who has worked as a specialist in access and equity areas over a number of years.
Ross David Colquhoun also provided two reports (Exhibits 15 and 16). Mr Colquhoun is also a very experienced architect with a number of major commissions over the years. His experience does not involve as much specialist involvement in design equity issues as Mr Deshon's. By the time of the hearing, the differences between the opinions of Mr Deshon and Mr Colquhoun had resolved to only a few areas.
Both architects were of the view that the only possible way in which wheelchair access could be provided to the cinema complex was by use of wheelchair platform stairlifts. These devices involve a moveable platform travelling on two rails installed on the left or right hand wall of a staircase. (Lifts and ramps were not considered possible or practical means of providing access to the cinema). Use of the platform stairlifts involves a wheelchair and its occupant being wheeled onto the platform at one end of the staircase; the stairlift travelling up the flight of stairs and coming to rest on a landing; and the wheelchair being wheeled off the platform at that other end of the staircase onto another level of the building.
Subject to two significant matters seen as significant obstacles by Mr Colquhoun, both witnesses envisaged a single wheelchair platform stairlift travelling between footpath level and the candy bar foyer level. This stairlift would travel on the left hand side of the stairway (for a person going up the steps).
The first of the two obstacles concerned a reading of paragraphs D-80 and D-90 of the New South Wales appendix of the Building Code of Australia ("the BCA"). The BCA derives its legislative operation in New South Wales from s.52 of the Local Government (Approvals) Regulation. Ultimately, this issue is a matter of law. However, because of the technical nature of the legislation, I was happy to receive assistance from the two experts. On Mr Colquhoun's reading, the presence of the stairlift caused the stairway width to fall below the minimum required by the BCA. On Mr Deshon's reading of the document, no such breach occurred.
The second obstacle concerns the presence of the sprinkler valve room on the left hand side of the staircase. Both men agreed that the BCA required a sprinkler valve room able to be locked, but accessible from the street. Mr Deshon was of the view that the legislative requirements for the sprinkler valve room could be satisfied by having each of the valves accessible through a half door which opened above the level of the stairlift rails. Mr Colquhoun was uncertain about the appropriateness of such a solution although he did not condemn it outright. The cost of converting the sprinkler room to a half-door set up was estimated not to exceed $2500. Mr Deshon referred to clause 8 of specification E1.8 of the BCA as the relevant legislative provision.
If the sprinkler room arrangement proposed by Mr Deshon was not available or appropriate, both witnesses agreed that the stairlift would have to be placed on the right side of the lower staircase from ground level to the ticket box level. This would necessitate a further stairlift and rail to go from ticket box to foyer levels (on the left hand side). This would add considerably to the cost of providing wheelchair access. If Mr Deshon's solution to the sprinkler room door issue was satisfactory, the one installation could travel from ground to candy bar level. This would be possible because, on the inside of a staircase, stairlifts and the rails on which they travel are capable of right angle turns.
Both men then envisaged a further stairlift travelling from the candy bar foyer level to the cinema level. While Mr Deshon thought this was practical, Mr Colquhoun's view was that the presence of the stairlift caused the width of this stairway to fall below the minimum allowed by the BCA for the same reasons as the lower staircase.
Two such stairlifts would give wheelchair access to cinemas 1 and 2. A further stairlift would be necessary to give access to cinema 3. Since only one cinema egress is involved, the width of that stairway would not fall below the BCA minimum requirement even on Mr Colquhoun's interpretation. However, both men agreed that, during any time when the stairlift was parked at the bottom of the stairs leading up to cinema 3, the narrow passageway from cinema 2 would (if the presence of the stairlift was held to be an obstruction of the passageway) fall below the BCA minimum requirement. Mr Deshon saw this as permissible. Mr Colquhoun was concerned by it.
The two witnesses generally agreed on costs. For the reasons stated above, if the presence of the sprinkler valve room prevented use of the left hand side of the stairwell, an extra stairlift would be required.
The pricing can be summarised as follows:
Two stairlifts from footpath to cinema Approximately $50,000 Three stairlifts from footpath to cinema level Approximately $75,000 Two stairlifts from footpath to cinema Approximately $75,000 level and further stairlift up to cinema 3. .
Three stairlifts from footpath to cinema Approximately $100,000 level and a further stairlift up to cinema 3.
Although the architects were not in dispute about the actual costs of installation, the presence of a number of different quotations and the various combinations of options has made putting a precise figure on the likely cost a little difficult. The above figures involve some averaging of the different quotations and are, as described, approximations. However, the issues to be resolved by me involve only the general magnitude of the expenditure. Variations of $20,000 or so in the final amount of expenditure are not likely to be significant at the end of the day.
Although contained in the orders sought in Exhibit 24, the idea of a toilet for disabled persons did not surface until Mr Deshon raised it in his initial report (Exhibit 4). In the current set up of the candy bar area, a pathway goes down the southern side of the candy bar through a door into a storeroom. However, at this point, the bottom path of a stairway forming part of one of the alternative cinema egresses intrudes into the room significantly reducing the headroom which would cause the toilet not to be in accordance with the BCA.
In cross-examination, Mr Batley, for the complainant, explored with Mr Colquhoun an alternative means of accessing the storeroom/proposed toilet area along the northern edge of the candy bar area. Although considered feasible by Mr Colquhoun at first, when he remembered (in re-examination), the existence of a further wall in the store room area which would require the northern access to intrude 1.5 further metres into the candy bar area, Mr Colquhoun came to the view that there would be insufficient room left to redesign and reshape the candy bar to operate with its previous range of products. (The wall in question is shown as a yellow highlighting in Mr Colquhoun's sketch exhibit 26).
Since Mr Deshon's consideration of these possibilities had not really got beyond a conceptual approach, the complainants were left in a situation where the evidence suggested that provision of a disabled toilet at that point was not feasible. Accordingly, I was not satisfied that there was any practical means of supplying a disabled toilet otherwise than elsewhere in the shopping centre of which the cinema formed part. (It was common ground that there is a disabled toilet some distance away on the ground floor which could be made available when the cinema was operating to be used by customers of the cinema who required a disabled toilet. It was also common ground that the toilets in the cinema were required, by the conditions of the local government development approvals (which authorised the redevelopment of the cinema including the construction of the new toilets) to have certain handrails. (This was something of a compromise in the terms of the council's approval but it would not make the toilets usable by all persons restricted to wheelchairs. However, presumably, the local authority will ensure that those conditions are complied with in due course.)
It was common ground, as far as the disabled toilet was concerned, that, if Mr Deshon's concept of a toilet in the converted storeroom behind the candy bar was not legally or practically feasible, the exemptions provided by s. 23(2)(b) and s. 24(2) of the Act would apply to any failure to provide a disabled toilet within the cinema itself.
Since, on all the evidence, I am of the opinion that a proposal to provide a toilet behind the candy bar has not been shown to be feasible, it is not necessary for me to consider further the alleged discrimination so far as it concerns the provision of disabled toilets.
I will now turn to consider the issues arising with regard to the provision of stairlifts and any potential impact that may have on the compliance with the BCA.
Building Code of Australia Issues
Section 52 of the Local Government (Approvals) Regulation 1993 (New South Wales) ("the Regulation") provides as follows:
"Adoption of Building Code of Australia 52. (1)The standards for activities that are approved and the standards that are to be met for activities to be approved are (apart from any standard set out in this Regulation) the standards set out in: (a) The Building Code of Australia in the case of the activity specified in items 1, 7 and 8 of Part A of the Table to s. 68 of the Act (except the use, or permitting the use, of a temporary structure as a place of public entertainment); or ..... (2) In the event of an inconsistency between the provisions of the Building Code of Australia and the provisions of this Regulation, the provisions of this Regulation apply. (3) This clause does not limit the operation of any other law governing the construction, maintenance, management or use of a building. (4) For the purposes of s. 70(6) of the Act, the provisions set out in this division, including the provisions of the Building Code of Australia are technical provisions of the State's building laws."
S. 68 of the Local Government Act 1993 (New South Wales) ("the Local Government Act") sets out those activities which require the approval of the local government. Part A of the Table to that section refers to the erection of a building; the change of the use of a building or part of a building to a use that is not consistent with the current classification of a building as prescribed by the regulations; or the use of a building or temporary structure as a place of public entertainment or permitting its use as a place of public entertainment.
The requirement of a local authority to comply with s. 52 of the Regulation and therefore the BCA is reinforced by s. 89 of the Local Government Act which provides as follows:
"Matters for consideration 89(1) [Regulations and Policies] In determining an application, the Council: must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation, and ....."
The reference to subsection (6) of section 70 of the Local Government Act in s. 52(4) of the Regulation can be ignored for present purposes. Section 70 is concerned with the circumstances in which the technical provisions of the State's building laws apply to the Crown. Since the respondent in this case does not constitute the Crown in any of its forms, that particular reference can be ignored.
The BCA in paragraph A3.2 classifies buildings into various classes. It was common ground that the cinema belonging to the respondent constituted a class 9b building. The relevant passage of paragraph A3.2 reads as follows:
"A3.2 Classifications Buildings are classified as follows: ....... (a) Class 9: A building of a public nature - ....... (b) Class 9b: Assembly building, including a trade workshop, laboratory or the like in a primary or secondary school, but excluding any other parts of the building that are of another class."
While that definition does not apply obviously to a cinema, the definition of "assembly building" in paragraph A1.1 of the BCA assists as follows:
"Assembly Building means a building where people may assemble for - civic, theatrical, social, political or religious purposes; .... entertainment, recreation or sporting purposes; or ....."
The New South Wales appendix of the BCA has a number of additional definitions. These include the definition of "Auditorium" which is as follows:
"Auditorium" means such part of a place of public entertainment as is designed to accommodate the audience to an entertainment or public meeting." In the case of a cinema complex, an auditorium would comprise the actual cinema room in which the audience watch the movies.
The New South Wales appendix defines place of public entertainment as follows:
"Place of Public Entertainment" means - (a) a drive-in theatre; or (b) an open-air theatre; or (c) a theatre or public hall; or (d) licensed premises providing entertainment."
The New South Wales appendix defines "public entertainment", broadly, as follows:
"Public Entertainment" means entertainment to which admission may ordinarily be gained by members of the public on payment of money or other consideration." The provisions which regulate access and egress from buildings are contained in Section D of the BCA. The New South Wales appendix adds subparagraphs to particular paragraphs and so one has to read both together to obtain the applicable provision.
Paragraph D1.2 reads as follows:
"D1.2 Number of exits required (a) All buildings - Every building must have at least one exit from each storey; ...... (e) Class 9 buildings - in addition to any horizontal exit, not less than two exits must be provided from the following: ....... (v) any storey or mezzanine that accommodates more than fifty persons, calculated under D1.13. (vi) any storey or mezzanine within an auditorium in a place of public entertainment."
Paragraph D.13 provides as follows:
"D1.13 Number of persons accommodated The number of persons accommodated in a storey, room or mezzanine must be determined with consideration to the purpose for which it is used and the layout of the floor area by- (a) calculating the sum of the numbers obtained by dividing the floor area of each part of the storey by the number of square metres per person listed in Table D1.13 according to the use of that part, excluding spaces set aside for- (i) lifts, stairs, ramps and escalators, corridors, hallways, lobbies and the like; and (ii) service ducts and the like, sedentary compartments or other ancillary uses; or (b) reference to the seating capacity in an assembly building or room; or (c) any other suitable means of assessing its capacity.
New South Wales Table D1.13
Area per person according to use TYPE OF USE m2 per person
Places of public entertainment - Other than auditorium 1.2
Auditorium - standing area 0.5
Removable seating 1 Fixed seating count seats
Bench seating 450mm/person"
After refurbishment, it was common ground that there was provision for seating for 498 persons divided among the cinemas as follows:
Cinema 1 - 173 seats Cinema 2 - 103 seats Cinema 3 - 222 seats
It would seem that it was also common ground that subparagraph (vi) of paragraph D1.2(d) applied to each cinema and that each cinema required therefore two exits. The real difference between the competing views of the parties related to the way in which the BCA should be interpreted to calculate the necessary width of those exits. The dimensions of exits are dealt with by paragraph D1.6 of the BCA which provides as follows:
"D1.6 Dimensions of Exits In a required exit or path of travel to an exit - ..... (f) the width of a doorway must not less than- .... (vi) in a class 9b building used as a place of public entertainment - (A) in parts of the building used by the public, and the width of the required exit or path of travel, and the unobstructed width of each doorway must not be less than one metre and not more than three metres; and
(B) in other parts of the building, doorways must comply with D1.6(f) ... (h) In a class 9b building used as a place of public entertainment- (i) The aggregate width must be not less than two metres plus 500mm every 50 persons or part in excess of 200; ..... (iii) Where one or more paths of travel merge, the width of the combined path of travel must be not less than the sum of the required widths of those paths of travel; and ....."
The dispute between the parties focussed upon the reference in subparagraph (h)(iii) above to the requirement that, where one or more paths of travel merge, the width of their combined path of travel must not be less than the sum of the required widths of those paths of travel.
Mr Colquhoun set out his views with regard to the egress requirements in Exhibit 15. He said that it was necessary to provide a minimum of two paths of egress from every cinema. Mr Deshon was in agreement in this respect and the building does in fact have two means of egress for each cinema. It can be seen that this requirement flows from the provisions of subparagraphs (e)(v) and (vi) of paragraph D1.2 of the BCA.
Mr Colquhoun and Mr Deshon also agreed that each exit should be at least one metre in width. Mr Colquhoun and Mr Deshon disagreed as to what the aggregate widths of the exits needed to be to comply with the BCA.
Mr Colquhoun said in Exhibit 15:
"With three cinemas having a seating capacity of 498 persons, the BCA requires an aggregate width of five metres for egress, however, as each cinema must have at least two exits of at least one metre clear width, this complex requires a minimum aggregate width of egress of six metres (three metres of which can pass through the foyer-main entrance)."
In Exhibit 4, Mr Deshon said as follows:
"[Mr Colquhoun] says that the BCA requires a minimum aggregate width of egress ('exit') for the cinema complex of six metres, which is a product of multiplying the required number of exits (6) by the minimum width of each exit (one metre). He then applies this width to the existing layout, deducing that the width cannot be reduced because it is only barely adequate. I think this interpretation is wrong. It means that the required minimum aggregate width of exit is determined not by the capacity of the complex but by the number of cinemas it contains - because each requires, regardless of its capacity, at least two exits, the width of each of which must exceed one metre. Hence, for a complex which at all times has a seating capacity not exceeding 500 - - if four cinemas, the minimum aggregate width is eight metres - if five, then ten metres - if six, then twelve metres and so on. With the reported trend towards smaller audiences per cinema screen, the requirements, interpreted in this way, become ridiculous."
At p. 7 of Exhibit 4, Mr Deshon set out the way in which he calculated the required aggregate width of exits and also the minimum required width of the exit through the main entrance.
Mr Deshon commences by applying subparagraph D1.6(h)(i) to the total seating capacity of the three cinemas combined (498 persons). This provides for five metres being the basic two metres plus 500mm for every 50 persons or part thereof in excess of 200.
Mr Deshon then calculates the aggregate width of exits from the screen end as being 3.9metres. It seems to be common ground on the evidence that two of the passageways at the back which are respectively two metres and 1.9metres wide come together to form a combined passageway of 3.9metres.
Therefore, Mr Deshon argues that the minimum aggregate width of the exit through the front of the building is the difference between 5 and 3.9 metres, namely, 1.1 metres.
In contrast to Mr Colquhoun, Mr Deshon does not construe the relevant provisions of the BCA as requiring a minimum of 1metre for each of the three cinemas therefore requiring a minimum of 3 metres of the combined exit passageway located at the front or back.
It emerged in evidence that Mr Colquhoun placed emphasis on the reference in subparagraph (vi) to the words:
"The width of the required exit or path of travel"
He made reference also to the provisions of subparagraph (h)(iii) with its requirement that, where one or more paths of travel merge, the width of the combined path of travel must be not less than the sum of the required widths of the individual paths of travel.
Both architects made inquiries of the Building Advisory Section ("the BAS") of the Department of Local Government. A Mr Charles Raneri responded on behalf of the BAS and his opinion favoured the construction of Mr Deshon. The key to his approach is contained in a numbered paragraph 3 of a facsimile transmission from Mr Raneri to Mr Deshon dated 2 May 1997 where he said as follows:
"The BCA accepts that the exit provided to the other storeys through the upstairs foyer commences at the location of the first riser of the stair flight leading [down] to the main foyer [candy bar area]. In this instance, the sloping floor of the cinemas constitutes part of the upper storey. As such, the upper storey is also served by the exits located at the front of each cinema and such exits also commence at the location of their first riser on the upper storey."
According to the approach of Mr Raneri, paths of travel only merge after the exit and the exit is at the exit from the storey itself. Mr Raneri is supported in this regard by the definition of "exit"at paragraph A1.1 of the BCA which reads as follows:
" 'Exit' means - (a) Any, or a combination of the following if they provide egress to a road or open space: (i) An internal or external stairway. (ii) A ramp complying with SECTION D. (iii) A fire isolated passageway. (iv) A doorway opening to a road or open space. (b) A horizontal exit or a fire isolated passageway leading to a horizontal exit."
Since there is no fire isolated passageway prior to the commencement of the stairways, one would imagine that the exit starts at the commencement of the stairway itself. That is the same as saying, as did Mr Raneri, that the exit commences at the location of the first riser of the stair flight.
There are aspects of the drafting of paragraph D1.6 which supports Mr Colquhoun's approach. For example, all of the subparagraphs are preceded by the words "in a required exit or path of travel to an exit -". Therefore, it makes sense if the exit is at the commencement of the steps that one may have a path of travel leading to the top of the steps. Therefore, there can be paths of travel which merge prior to the first step.
Another argument put on behalf of the respondent was in answer to Mr Deshon's proposition that it was ridiculous to require a combination of minima so that the required aggregate width depended not on the number of people but on the number of separate cinemas. The respondent argued that it was ridiculous for it to be permissible that the front entrance to a three cinema complex could be as small as one metre. I think the answer to this argument is that the BCA is directed to safety considerations. Safety considerations appear to be addressed by the minimum aggregate width and by the minimum of one metre applied to each exit. While it makes sense from a presentation and marketing point of view to have your front door and passageways wide and welcoming, safety requirements may well be addressed by a front door that is close to the minimum of one metre provided that the alternative forms of egress from the theatre in time of emergency are correspondingly wide.
I have come to a view of the construction of the relevant passages that incorporates some of the views of each architect. It seems to me that paragraph D1.6 does envisage "internal paths of travel", that is, paths of travel towards an exit from the storey. However, the principle thrust of the paragraph is to define safety requirements by reference to numbers of people using a particular place of public entertainment rather than by reference to the number of auditoria into which the place of public entertainment has been broken up at any particular point in time.
In my view, the issue is to be resolved by reading down slightly the literal words of subparagraph D1.6(h)(iii). The subparagraph is to be construed so that when two paths of travel converge, one does not calculate the minimum width of the combined path of travel simply by adding together the required dimensions of paths of travel which combine. Rather, one looks at the populations provided for in each of the auditoria. One looks at the dimensions of alternative access and egress ways in respect of each of those auditoria. One then calculates the minimum dimensions of the combined path of travel applying the formula in subparagraph D1.6(h)(i).
The argument of absurdity put forward by Mr Deshon can be seen more clearly when one looks at much smaller groups of people in much smaller rooms. For example, a conference centre would qualify on occasion as a place of public entertainment. If it were so partitioned as to operate as a series of seminar rooms, that is, as a whole series of quite small rooms holding only 20 or 30 people, the literal approach would require that the exits of a particular floor be very large indeed. I do not think that the provisions of s. D1.6 which apply to places of public entertainment are intended to operate in that way.
My view that one has to mitigate the literal reading of the provisions by a modicum of common sense is reinforced when one considers the way in which paragraphs and subparagraphs are drafted and adopted in different states by different committees. The patchwork nature of the process is frequently obvious. For example, sub-paragraph D1.6(f)(vi), a NSW addition, does not make sense when combined with its preface which immediately follows the letter(f) which is part of the BCA which applies to all states (and to all sub-paragraphs of (f)). The same incongruity appears when one tries to read sub-paragraph (h)(iv) with the words with which D1.6 commences: "In a required exit or path of travel to an exit-".
Accordingly, I am of the view that the minimum dimensions of the stairways which lead to the main entrance of the cinema complex are not required to be a minimum of three metres comprised by one metre for each of cinema one, two and three. The fact that the paths of travel from each of those cinemas do in fact converge does not have the effect that one takes the minimum for each path and add it to the others irrespective of the number of people provided for in each of the picture theatres.
The Foyer
Mr Deshon and Mr Colquhoun gave evidence prior to the hearing being adjourned part heard. In their oral evidence, they addressed the matters simply on the basis that the required widths of the various egress routes from the cinema complex would be calculated by reference to populations provided for by the seating of the three separate cinema auditoria. However, Exhibits 35 and 36 were produced on the resumed hearing by the respondent and Mr Colquhoun was not required for further cross-examination. Sections 2(c) respectively of Exhibit 35 and Exhibit 36 make reference to the provision for egress based on a possible foyer population. Obviously, between sessions, one may have three cinemas operating but also have a number of people located elsewhere in the building either waiting for a new session to start or enjoying the products of the candy bar after having enjoyed watching a film.
Whether or not the foyer area should be taken into account for calculating the minimum egress requirements depends on whether it is an excluded space as provided in paragraph D1.13. The excluded spaces include "spaces set aside for - lifts, stairs, ramps and escalators, corridors, hallways, lobbys and the like". It seems to me that both the area in front of the candy bar up to and including the steps going both up and down and the area in front of the ticket box including the steps going up and down function to some extent as "corridors, hallways, lobbys and the like". It seems to me that they also function to some extent as space in a place of public entertainment which is other than auditorium. The table D1.13 would require that space to be treated as having a population according to use calculated by assuming that each person requires 1.2m2 of space.
The matter is complicated by the provisions of para. H101.3 which is part of a whole section which makes special provision for detailed aspects of theatres, stages and public halls which actually requires 0.25m2 of foyer space for each person that the auditorium accommodates.
In Exhibit 35 at pp. 2-3, Mr Colquhoun states that the total foyer area "as per the BCA" is 124.5m2. He has calculated this by reference to the provisions of s. H101.3 and by reference to the total auditorium seating capacity of 498 persons.
Unfortunately, I have been unable to find in the documentation which constitutes the exhibits or in the oral evidence an indication of what are the actual dimensions of the foyer space at the ticket box and candy bar levels.
However, adopting Mr Colquhoun's calculated basis, I think it is reasonable to attribute half of the foyer space to lobby areas and half of the foyer space to areas occupying a static population either enjoying the benefits of the candy bar or waiting for another film to start. Accordingly, while Mr Colquhoun attributes 103.75 persons to his calculated amount of foyer space, it seems to me more reasonable to attribute approximately 50 persons to that space. On such a basis, the requirements of the width of the stair case going down from the candy bar level would be increased by the requirement to provide for an additional 50 people. Applying para. D1.6(h)(i), the minimum width of that staircase would become 1.6m rather than the 1.1m originally calculated by Mr Deshon.
The author of Exhibit 36, a Mr Payne also takes into account staff areas such as the areas of the candy bar and ticket office and comes to a conclusion that an additional 1-1.5m would be added to what would otherwise be the minimum 1.1m. While I am not in a position to confirm or otherwise those calculations, they were not subject to any requirement to have Mr. Payne cross-examined and, ultimately, they appeared almost to be common ground. Accordingly, I have addressed the matter on that basis.
The Actual Measurements of the Staircases
At p. 2 of Exhibit 15, Mr Colquhoun advises that the unobstructed egress through the main entrance has been physically measured as 3.42m from street level to ticket office; 3.12m from ticket office level to candy bar level; and 3.13m from candy bar level to cinemas 1 and 2 level of the building.
A stairlift in operation occupies 1.1m of the stairway space. This would mean that approximately 2.02m would be the minimum space left while a stairlift was in operation.
When folded and not in use, the stairlift occupies 0.3m. This appears from p. 8 of Exhibit 4. The model originally considered by Mr Colquhoun occupied 0.48m but it appears not to have been disputed that alternative models occupying only 0.3m were avaiable.
It also appears to be common ground that the stairlift can in fact be parked at points beyond the actual stair case itself, for example, on the candy bar level where the passageways of the staircase open out into the foyer space.
As mentioned above, the egress via the screen end of each of the cinemas provide an aggregate egress of 3.9m.
I have indicated earlier that I accept a reading of the BCA which has the same effect as that preferred by Mr Deshon. Thus, as far as the population provided for by the cinema seating, the aggregate egress required is some 5m. Because of the screen end egress of 3.9m, one addresses only the population provided for by the cinema seating, then the unobstructed width of egress through the main entrance must satisfy a minimum of 1.1m.
However, as I have already indicated, attention was drawn late in the hearing to a requirement to provide, at least in the case of the staircases from the candy level down, for the population likely to occupy the foyer and staff areas. As mentioned, the prescription of 1 to 1.5m of the author of Exhibit 36 was in the end virtually uncontested.
If one takes the maximum of the possible requirement for foyer and staff space, the total required aggregate egress becomes 6.5m. Allowing for the screen end egress of 3.9m, the required egress through the front of the building becomes 2.6m.
In those circumstances, if a stairlift in use constitutes an obstruction for the purposes of the BCA, the egress from the candy bar level falls from 3.12m, by the area occupied by the stairlift, to 2.02m. This is below the minimum required by the legislation.
If the stairlift had to be parked in the staircase itself, then the available egress would fall to 2.82m which would remain above the minimum required by the legislation.
It thus becomes important to consider whether a stairlift in use constitutes an obstruction for the purpose of the BCA.
Meaning of Obstruction
Paragraph D1.6 is not consistent in its drafting. In subparagraph (f)(vi) the drafting refers only to the "width" of exits and the paths of travel but refers to the "unobstructed width" of the doorway. In subparagraph (h), the word "obstruction" is not used and it makes reference only to what the width of a combined path of travel must be and also a reference to the required width of individual paths of travel as well as a reference in supbaragraph (i) to simply an aggregate width.
It is also significant to note provisions in subparagraph (g) which state that the width of a required exit must not diminish except in certain cases which are not applicable.
Therefore, one does not have to decide whether the stairlift constitutes "an obstruction". Rather, the question is whether a stairlift, whether parked but in an unfolded state or moving with an occupant on board, is such as to diminish an exit or a path of travel to or from an exit.
The case was conducted on the basis that people with access disabilities including those who require the use of a wheelchair are not prevented from using the cinema 3 complex. (In fact, both Mr Madge of the respondent and Mr Cooper, the principal applicant, gave evidence about the visit, already mentioned, by Mr Cooper to the picture theatre during which he was carried up and down by a number of employees.) It seems to be a commonsense conclusion that people with access disabilities who access the theatre through such assistance (or, in the case of people who are mobile but slow with walking frames, by themselves) diminish the effectiveness of the staircases for other users. In the same way, when a platform stairlift is transporting a user from one level to another, people who might otherwise want to come down the stairs that way would need to get out of the way. (There is no danger of being knocked over holus bolus, however, as the evidence reveals that there are sensors which prevent the stair risers knocking into other persons who may be on the steps but unaware of a stairlift coming in their direction.)
The installation of platform stairlifts appears to me to involve something of a swing and roundabout effect. In one respect, they are likely to increase congestion on the staircases because there is likely to be an increase in the number of people with significant access disabilities using the cinema. Despite evidence for the applicant in this respect, including various pieces of statistical data, I am not of the view that there would be a flood of people with disabilities at each and every showing.
On the other hand, for each person with a disability who does attend the theatre, I would imagine that the devices would make the access much more efficient and cause other patrons of the theatre to be much less inconvenienced.
It seems to me, therefore, that, apart from the presence of a rail which seems, on the evidence, to be negligible, the existence and use of platform stairlifts would not reduce the width of the various exits and the paths of travel between them. This, in my view, is the correct approach to applying the relevant passages of the BCA.
Cinema 3
Cinema 3 was regarded as something of a special case. However, my conclusions in the preceding section of these reasons also applies to the proposed stairlift up to the entrance to cinema 3 proper. It is capable of being parked for long term storage within the cinema itself in a place which does not in any way interfere with the exit from that cinema. The fact that it will, for the purpose of loading and unloading of a wheelchair bound patron, block the passageway between cinema 2 and the staircase does not seem to me to be something which reduces the width of that particular passageway. It is no worse than the same obstruction which would result from the wheelchair standing in that general area waiting for groups of people to carry it up to cinema 3.
Of course, the management of the cinema will need to be careful to ensure that the platform stairlifts are not left in an area where they do in fact obstruct staircases and therefore diminish the effective width of the egress constituted by such a staircase. This seems to me to be a management problem no different to that in wnich the operators of most commercial enterprises have to engage to make sure that people don't store tables or other heavy material on either side of fire exit doors. Most people will be familiar with signage on such doors instructing users of the building not to obstruct those doors. Similar signage and training of employees would be able to achieve similar effects in respect of these more moveable components of the building.
Accordingly, I am of the view that the installation of platform stairlifts in the respondent's cinema complex would not be in breach of the BCA and therefore the other building approvals legislation which I have set out above. I now turn to consider the financial position of the respondent.
The Financial Position of the Respondent
The respondent company is a family company essentially owned and run by Mr John Hartley Madge and his wife. Mr Madge gave evidence on behalf of the respondent and addressed its financial position.
The alternative ground upon which the respondent sought to obtain the benefit of the exemptions provided by ss. 22 and 23 involve the cost of installing platform stairlifts and the financial position of the company.
Put briefly, the case for the respondent was that to be required to alter the premises by installing platform stairlifts would impose unjustifiable hardship. This is because the respondent would be unable to borrow anything in the region of $100,000.00. This is because the respondent company had very considerable financial commitments and because its present trading position was most unsatisfactory.
Mr Madge said in evidence that, if the money could be borrowed, he was fairly sure that the company could service that loan. However, he thought the money simply could not be borrowed.
In any event, the case for the respondent was that an order to install platform stairlifts would lead to the respondent company having to shut down its cinema operations. This would result in hardship not only to Mr Madge and his wife but also to their other employees and also, in a broad sense, to the people of Coffs Harbour and its surrounds through the loss of competition in the provision of cinema services to the town.
Mr Madge's evidence was neatly summarised by a passage from p. 2 of Exhibit 14 (his witness statement) where he said as follows:
"Regardless of whether it is possible to install stair risers and additional toilet for $90,000.00 or $120,000.00 plus, [the respondent] does not have the financial capacity to spend or borrow this amount and in my view if such a cost was imposed on [the respondent] it would not be able to continue trading. [the respondent] currently employs four full-time employees and up to 15 casual employees."
Much of Mr Madge's evidence with regard to financial matters was given in the situation where the Court was closed except for very necessary participants. Similarly, non publication orders were imposed upon those who were able to remain.
For these reasons, it appears to me appropriate to discuss the financial issues relevant to the respondent in only the broadest terms.
Part of the dilemma faced by the respondent was an onset of competition which commenced in November 1995. At that time, a five cinema complex opened about 1.5 kilometres north of the respondent's cinema. The new cinema was operated by Birch Carroll & Coyle, a company which distributes films and operates cinemas throughout Australia. This had resulted in a price war between the respondent's independent operation and that of the operators of the new cinema. The result of this price war was that the average price for attending films in Coffs Harbour was much less than in comparable centres and the ability of the respondent to operate profitably was much diminished.
Part of the financial background to the respondent's position also involved Mr Madge's family's trading for some years before the respondent commenced its operations. Mr Madge gave evidence that an earlier family company which had developed the cinema and the shopping centre of which it was part had gone into liquidation during a recession which hit soon after that development was completed. In order to survive in the industry and to be supplied with films, it was necessary for Mr Madge to ensure that the respondent continued to pay off certain of the debts of the earlier family company.
In this context, the evidence showed that for each of the financial years ending 30 June 1994, 1995 and 1996, respectively, the respondent had made quite satisfactory profits and had repaid significant amounts of those monies owed by the previous operating entity.
However, the onset of the extra competition in November 1995 had, according to Mr Madge, led to a turn around in the financial position such that for the nine months to 31 March 1997 the trading result of the company was quite unsatisfactory.
The profit and loss statements provided as exhibits showed quite exceptional expenditure on some items including, for example, advertising. Mr Madge stated that the position had been addressed early in 1997 when the respondent company was moving to reduce the amount of expenditure on such discretionary items which would have the affect of restoring the balance sheet at least to some extent.
The work which was being carried out in August 1995, at the time that the complaint was received fell into different categories. The work which involved the construction of the new cinema and the shifting of the toilets was building work requiring development approval and this work was in fact paid for by the building owner, that is, the respondent's landlord. The respondent's contribution to that financing was an ongoing one involving increases in the amount payable by rental.
The other part of the work carried out at that time was in the nature of refurbishment and the respondent company borrowed to meet the cost of that refurbishment. At the time of the interim application before Sir Ronald Wilson, it appeared that the approximate cost of installing the platform stairlifts then argued to be $130,000.00 was quite massive in contrast to the expenditure on the building which was then represented as being $100,000.00.
The true comparisons are significantly different to what was represented before the President. By the time the cost of refurbishment including new carpeting and new seating was taken into account, the cost of work was in the region of $400,000.00. The expenditure that would be needed to install platform stairlifts seems not quite so massive in comparison.
Mr Batley, on behalf of the complainants, urged that I should judge the extent of the hardship of complying with an order as at the time that the building work was carried out. (This is also roughly the time at which the complaint was made).
I am not of this view. I consider that conduct by a respondent to put itself in a more difficult position may be relevant to whether the facts of a particular case constitute "unjustifiable hardship". However, at least on the issue of what remedies, if any, I should order, I find, in this case, that I must take into account the fact situation as revealed to me at the hearing and which would thus apply to the respondent in complying with any such order.
It is relevant, in my opinion, that Mr Madge stated that a significant refurbishment of any building which operates as a competitive commercial cinema needs to take place on a seven year cycle. On that basis, the respondent company, if it were to remain competitive and in business, would be looking to carry out further major capital expenditure within five years of delivering these reasons (it is now two years since the last refurbishment took place).
The argument for the respondent was conducted on the basis that, if no requirement was imposed upon it to provide access for wheelchair bound people, the cinema would be able to continue to operate. If the respondent was required to provide wheelchair access, the argument ran, financial disaster would strike and the respondent would be unable to continue to operate. This would have major negative consequences for all concerned including the people of Coffs Harbour.
On my view of the evidence, the equations are not that simple. I am satisfied that the respondent company is facing considerable financial difficulty at the present time as a result of the confluence of the major expansion with the introduction of significant competition. This has also coincided with the respondent company and also those individuals associated with it having considerable debt for other reasons.
It may be that even without the intervention of an order by the Commission, the big operator down the road will win the price war and the respondent company will have to shut up shop. On my view of the evidence, this is unlikely and, through the trimming of the discretionary expenditure which by now will have started to have had an effect, my view is that the respondent company will continue to operate and will succeed in having its balance sheet restored to a more favourable state.
I am of the opinion that, to impose considerable further borrowing and expenditure to be carried out in the very short term, would add to the stress of the respondent's financial position. I agree with Mr Madge that obtaining finance in the amount of $100,000.00 in the very short term would be difficult.
On the other hand, the figure of $100,000.00 involved in installing the platform stairlifts (the actual expenditure is likely to be substantially less than that) is something that a company can plan for and is likely to be able to be amortised without too much difficulty even in an economic environment involving considerable competition from down the road.
It seems to me that, providing sufficient warning is given and proper planning is carried out, the respondent company would, in the long term, be able to install platform stairlifts. If carrying out same resulted in a financial cataclysm, then it is my opinion that such disaster would strike in any event without the requirement to make such expenditure.
Powers of the Commission
The powers of the Commission exercisable by the person holding the Inquiry are set out in s. 103. The section provides as follows:
"Section 103 DETERMINATION OR OTHER DECISION OF THE COMMISSION 103(1) [The powers of Commission] After holding an Inquiry, the Commission may: (a) dismiss the complaint the subject of the inquiry; or (b) if it finds the complaint substantiated - so find and make a determination which, if appropriate, may include any one or more of the following: (i) a declaration that the respondent had engaged in conduct, or committed an act, that is unlawful under a provision of Part 2 of this Act and should not repeat or continue such unlawful conduct; (ii) a declaration that the respondent should perform any reasonable act or course of conduct to address any loss or damage suffered by the complainant; (iii) a declaration that the respondent should employ or re-employ the complainant; (iv) a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; ..... (vii) a declaration that it would be inappropriate for any further action to be taken in the matter.
103(2) [Determination not binding] A determination of the Commission under subsection (1) is not binding or conclusive between any of the parties to the determination.
103(3) [Findings of Fact] The Commission may, in the making of a determination under subsection (1), state any findings of fact upon which the determination is based.
103(4) [Injury to feelings, humiliation] The damage referred to in paragraph (1)(b) includes injury to the complainant's feelings or humiliation suffered by the complainant.
......"
Reference to a determination being not binding is followed up by the provisions of division 3A which allow a complainant to bring further proceedings in the Federal Court for the purpose of enforcing a determination of the Commission. The court hears the matter by way of a hearing de novo.
I now turn to the orders that I should make in the light of my findings and the light of the powers provided by the Act.
The Approach to be Taken and Complications with regard to Orders
It is my intention to order that the respondent company install platform stairlifts or similar analogous devices to allow people with access difficulties to obtain access to each of the respondent's three cinemas on or before 30 September 2002.
There are obvious difficulties for an applicant in circumstances where any order I make is not in itself enforceable. The applicants are faced with a dilemma as to whether they should proceed immediately to make a further application in the Federal Court pursuant to s. 105A or whether they should wait for five years to see whether the respondent acts in accordance with the proposed order.
Accordingly, I propose to order that the respondent enter into an enforceable agreement with such of the applicants as are desirous of entering into such an agreement by which the respondent agrees to carry out the terms of the order. Such agreement is to be entered into before 31 December 1997.
I am of the opinion that entering into such an agreement constitutes part of the reasonable acts or courses of conduct which are required to redress the loss or damage suffered by the complainants.
The complainants sought an order for payment of damages by way of compensation for the loss or damage that they have already suffered.
While such loss is not inconsequential, I am also of the view that any such order would not sound in many thousands of dollars. In one sense, the loss or damage experienced by way of injury to feelings etc up to this point in time will be rectified by the vindicating (albeit delayed) effect of the orders I propose.
I am also conscious that, in coming to the view which I have come, I have made conclusions, based on the evidence, as to the financial viability of the respondent company during future years. While I am not unconfident with regard to my conclusions in that regard, to order payments of large amounts of compensation at this stage may reduce the margin for error surrounding my conclusions. I am of the view that the appropriate exercise of my discretion is not to order the payment of any sums of money to any of the complainants.
There is also a curiosity in that the respondent has made out a partial exemption in the sense that immediate installation of the platform stairlifts is not practical. The legislation appears to comprehend that correction of a "breach" situation may always take some time. S. 103 appears to contemplate a current finding of unlawful conduct. This appears to be anomalous particularly in respect of the period between the making of the order and the time for complying with that order. I do not think, however, that such a result is other than comprehended by the Act when dealing with the issues of existing structures.
In the present case, I am comforted by the circumstances which existed at the time of the complaint. While I did not have regard to these circumstances for considering unjustifiable hardship in terms of the relief I should order, it is relevant that the failure to include platform stairlifts at the time of the refurbishment has increased the respondent's present difficulty in providing them. I consider it an appropriate exercise of my discretion to declare, as s103 contemplates, that the respondent is currently in breach of the Act.
I make the following orders:
1. I find the complaint substantiated. 2. I declare that the respondent has engaged in conduct in breach of s. 23 of the Act by discriminating against the complainants on the grounds of the complainants' disabilities (the disabilities giving rise to difficulty in mobility) by imposing terms and conditions on which the respondent is prepared to allow the complainants access to the respondent's cinema complex in Vernon Street, Coffs Harbour, being a condition that the complainants be able to access such complex by making use of the stairways contained in the said premises (or, otherwise, be forced to submit to assistance in the form of being physically carried up the said stairways); (4) I declare that the respondent should cease such breach of s. 23 and perform a reasonable course of conduct to address the loss and damage suffered by the complainants in the following manner: (a) on or before 31 December 1997, execute under seal, a document in favour of such of the applicants as wish to obtain the benefit of this order, being a document approved by such applicants requiring the respondent to install effective and efficient platform stairlifts to the respondent's Vernon Street cinema providing access to all levels of the said cinema on or before 30 September 2002; (b) that the respondent install in its Vernon Street cinema on or before 30 September 2002, efficient and effective platform stairlifts providing access to all levels of the said cinema.
