Glenda Lee v Nova Cinemas Pty Ltd and Rundle East Company Pty Ltd

IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992

KATHLEEN McEVOY

No. H99/34

Number of pages - 11

DARWIN, 6 January 2000 (hearing) and (decision)

#DATE 06:01:2000

Appearances

Ms Elizabeth Dennis of the Disability Complaints Service Inc for the Complainant.

Mr John Hankin of Thomson Playford Barristers & Solicitors for the Second Respondent.

Order

See 6. Directions

KATHLEEN McEVOY

1.       INTRODUCTION

By a complaint dated 4 December 1997 lodged with the Human Rights and Equal Opportunity Commission ("the Commission") the complainant, Ms Glenda Lee, claims that she has been the subject of direct discrimination on the basis of her mobility impairment in the provision of access to premises and in the provision of goods and services, contrary to sections 5, 23 and 24 of the Disability Discrimination Act 1992 (Cth) ("the DDA").

The complainant claims that the seating arrangements in Cinema 2 of the three cinema complex at 247-251 Rundle Street, Adelaide, operated by the first respondent, Nova Cinemas Pty Ltd, are less favourable to people with mobility impairments. The complainant claims the only seating provided for people who use wheelchairs is located in the first three rows of the cinema and these arrangements constitute less favourable treatment on the basis of disability. The second respondent, Rundle East Company Pty Ltd, is the lessor of the premises to the first respondent.

The first respondent states that the other two cinemas in the complex have spaces for wheelchair use further back but it is not possible to provide seating further back in Cinema 2 because of the design of the building. The first respondent states that it received all appropriate building approvals for its fit-out of the cinema complex.

The second respondent states that it leased the shell of a building to the first respondent and is not responsible for the subsequent fit-out of that building.

An attempt to settle the complaint by conciliation was not successful and on 29 January 1999 the Commissioner referred the complaint to the Commission for inquiry in accordance with s.76(1) of the DDA.

2.       DIRECTION REGARDING PRELIMINARY APPLICATION

As a first step in the inquiry process, a directions conference was held on 9 August 1999 before Commissioner Innes. On 9 August 1999 Commissioner Innes made directions for the second respondent and the complainant to file and serve written submissions on whether the inquiry should continue against the second respondent.

The second respondent has provided submissions dated 23 and 26 August 1999. The complainant has provided submissions dated 24 and 30 August 1999. The second respondent then provided further submissions dated 31 August 1999.

The parties have agreed that this preliminary issue shall be decided on the written submissions provided.

3.       RELEVANT LEGISLATIVE PROVISIONS

Section 23 of the DDA provides:

(1) 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 other person's asso ciates:

(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

(d) by refusing to allow the other person the use of any facilities in such premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or

(e) in the terms or conditions on which the first-mentioned person is prepared to allow the other person the use of any such facilities; or

(f) by requiring the other person to leave such premises or cease to use such facilities.

(2) 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 of the DDA provides:

(1) 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 of 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.

(2) 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 122 of the DDA provides:

A person who causes, instructs, aids or permits another person to do an act that is unlawful under Division 1, 2 or 3 of Part 2, is for the purposes of this Act, taken also to have done that act.

Section 100(a) and (b) of the DDA further provides:

The Commission may, at any stage of an inquiry, dismiss a complaint if:

(a) the Commission thinks that a complaint is trivial, vexatious, misconceived or lacking in substance; or

(b) the Commission is satisfied that the complaint relates to an act that is not unlawful under a provision of Part 2; .....

4.       THE APPLICATION

4.1       Second respondent's submissions

The second respondent states as follows:

Ø       The property in Rundle Street, Adelaide, is owned by the South Australian Minister for Housing, Urban Development and Local Government Relations ("the Minister"). The Minister has leased the property to the second respondent.

Ø       A portion of the property leased from the Minister to the second respondent has been subleased by the second respondent to the first respondent ("the Premises").

Ø       The sublease of the Premises between the second respondent and the first respondent obliged the second respondent to build a "shell" on the Premises. All works conducted by the second respondent received all necessary planning and building approvals.

Ø       On completion of the "shell" the first respondent became entitled to exclusive occupation of the Premises. The first respondent was entitled to fit-out the Premises for whatever purpose it saw fit.

Ø       The second respondent is not in occupation of any part of the Premises.

The second respondent states that no complaint is made about the provision of access or the availability of facilities in that part of the building constructed by the second respondent. The second respondent argues that so far as the complaint alleges breaches of sections 23 and 24 of the DDA, the complaint solely concerns the first respondent's fit-out of the Premises as a cinema complex.

The second respondent states that the first respondent has the right to exclusive occupation of the Premises. The second respondent states that it cannot lawfully give directions to the first respondent in relation to any alterations to the fit-out of the Premises. The second respondent states that it does not have any legal authority which would enable it to refuse access to the Premises, manage the Premises, impose terms or conditions in which access is allowed or require the first respondent to carry out any action to satisfy the complaint.

The second respondent cites the decision of Commissioner Nettlefold in Cooper v Coffs Harbour City Council (18 May 1998) in support of its application. The second respondent submits that as a matter of law it cannot be found to be in breach of sections 23 or 24 of the DDA.

The second respondent requests the Commission to exercise its powers under section 100 of the DDA to dismiss the complaint as against the second respondent on the basis that it is lacking in substance and relates to acts which in relation to the second respondent are not unlawful.

4.2       Complainant's submissions

The complainant states that the second respondent should remain a part of the inquiry because it is not clear that the second respondent had no part in causing the situation which led to her complaint. The complainant relies on section 122. The complainant argues that the second respondent is a body referred to in section 122 that "causes, instructs, induces, aids or permits another person to do an act that is unlawful".

4.3       Second respondent's further submissions

In its submissions in reply, the second respondent states that each of the original complaint, the investigation, the conciliation and the referral report by the Disability Discrimination Commissioner dated 29 January 1999 proceed on the basis of an allegation that the second respondent has breached sections 23 and 24 of the DDA. The second respondent states that it has never been asserted prior to the complainant's submissions outlined above that the second respondent might have breached section 122 of the DDA.

The second respondent claims that the complainant now asserts a completely new ground of complaint. The second respondent submits that it would be a denial of natural justice for the complainant to be now permitted to allege a breach of section 122.

The second respondent states that in any event the allegation or breach of section 122 is contradicted by the following information:

Ø       The second respondent provided a "shell" only to the first respondent. The "shell" provided a lift from the ground to the first floor, male and female toilets, a disabled toilet and air conditioning.

Ø       All other works were undertaken by the first respondent and must be removed at the end of the sublease. The first respondent conducted its own fit-out of the "shell" including all seating structures and access points of the cinemas.

Ø       The first respondent sought and obtained all necessary building and planning approvals for the fit-out of the Premises. The second respondent had no role in the seeking or obtaining of those building and planning approvals.

The second respondent states that even if the Commission were to form the view that it is possible that a breach of section 122 has occurred, this information makes it clear that the second respondent cannot have been involved in any such breach.

5.       FINDINGS

5.1 Section 23 of the DDA

In the decision of Cooper v Coffs Harbour City Council (18 May 1998) Commissioner Nettlefold made the following statement:

"Counsel for the complainant argued that the Council could be found liable, without any reference to s.122 of DDA, simply by an application of s.23 of the DDA alone. This point was only faintly argued and does not call for any detailed response. It is sufficient to say that, when the section is read as a whole, it becomes clear that the person in contemplation in s.23(1), as persons who may be guilty of discrimination, are persons having a relationship with the premises which enables them to refuse access or impose terms or conditions on which access will be allowed, etc. Without attempting to be definitive the class of persons contemplated are persons having powers in relation to premises which enables them to control or manage the premises. That is not an exhaustive description of the class but, rather, an indication of the main thrust of the provision..." (at page 30) (emphasis added)

As noted by the second respondent, this decision was overturned by the Federal Court on review but the Federal Court decision did not concern the interpretation of s.23 of the DDA. I therefore find the statement of Commissioner Nettlefold set out above both pertinent and applicable in this case.

The second respondent asserts that except for the construction of the "shell" on the Premises, it has had no involvement in nor any responsibility for the construction of the fit-out of the Premises as a cinema complex. The first respondent has exclusive occupation of the Premises and has complete control over access to those Premises. The second respondent asserts that it has no control over providing access nor any means of directing the first respondent in relation to the provision of access.

I note that the complainant has not challenged any of the facts as presented by the second respondent in relation to the Premises.

Applying the comments of Commissioner Nettlefold it appears clear that the second respondent does not have a relationship with the Premises, or the subsequent fit-out of the Premises of which the complainant complains, which enables the second respondent to refuse access, to impose terms or conditions on which access will be allowed on the Premises, to make provision as to the means of access, to refuse to allow a person to use the facilities on the Premises or to impose terms or conditions on which use of the facilities is allowed. The second respondent does not appear to have any powers in relation to the Premises which would enable it to control or manage the Premises.

Accordingly, I find that the complaint in relation to the second respondent under section 23 of the DDA should be dismissed under section 100(a) on the basis that it is lacking in substance.

5.2       Section 24 of the DDA

In relation to the provision of goods and services or the availability of facilities on the Premises, the second respondent appears to make the same arguments as made in relation to access. The second respondent asserts that it has neither control over providing goods or services or the availability of facilities nor any means of directing the first respondent in this regard at the Premises.

Again, I note that the complainant has not challenged any of the facts as presented by the second respondent in relation to the Premises.

It would again appear clear that the second respondent does not have a relationship with the Premises, or the subsequent fit-out of the Premises of which the complainant complains, which enables the second respondent to refuse goods or services, to impose terms or conditions on which goods or services are provided on the Premises or to impose the manner in which goods or services are provided on the Premises. The second respondent does not appear to have any powers in relation to the Premises which would enable it to control or manage the Premises.

Accordingly, I find that the complaint in relation to the second respondent under section 24 of the DDA should be dismissed under section 100(a) on the basis that it is lacking in substance.

5.3       Section 122 of the DDA

In relation to section 122 of the DDA, I do not accept the submissions of the second respondent that the complainant now asserts a completely new ground of complaint and that it would be unfair for me to consider that ground.

It is not necessary for allegations to be specifically pleaded in this jurisdiction. The fact that a particular section of the DDA is not pleaded in the complaint or specifically referred to in the investigation, conciliation or referral does not preclude the Commission from considering that section of the DDA in its inquiry. In my view it is sufficient that on all the facts of the complaint that the complaint gives rise to allegations under that section of the DDA. It appears clear from all the facts of the complaint that the complainant alleges some liability of the second respondent, whether directly under sections 23 and 24 or through the provisions of "accessory" liability (section 122) or "vicarious" liability (section 123).

Accordingly I consider it necessary to consider the allegation that the second respondent is liable under section 122 of the DDA.

Section 122 was recently considered by the Federal Court in Cooper v Human Rights and Equal Opportunity Commission [1999] FCA 180 (4 March 1999). Justice Madgwick held that in considering section 122 the sole question is whether it has been proven that a person has caused, instructed, induced, aided, or permitted another person to discriminate unlawfully against persons with a disability contrary to the DDA. Justice Madgwick also held that the section 122 concepts are deliberately wider than the traditional criminal law concepts of aiding and abetting. This decision would appear to be authority for a wide interpretation of section 122 and the concept of "permits".

In this case the second respondent asserts that it has provided a "shell" to the first respondent. That "shell" included a lift, toilets and air conditioning. Once the second respondent completed the structural work of the "shell", the first respondent obtained exclusive possession of the Premises. The second respondent asserts that its obligations and responsibilities in relation to the Premises ended here. The subsequent fit-out, planning and building approvals and construction works were then the responsibility of the first respondent. The second respondent asserts that it has had neither involvement in nor responsibility for that fit-out or construction work. The second respondent asserts that it had no ability to direct the first respondent as to the fit-out or any changes to that fit-out. The second respondent had no role in the first respondent obtaining planning or building permits for that fit-out.

The complainant does not challenge these facts. Further, the complainant does not challenge that the complaint relates only to the subsequent fit-out and construction works done by the first respondent on the Premises.

The complainant has not argued how the second respondent has caused, instructed, induced, aided or permitted the first respondent to do an act in breach of the DDA.

Even on the widest interpretation of section 122 I find it difficult to see how the second respondent has caused, instructed, induced, aided or permitted the first respondent to do an act in breach of either sections 23 or 24 of the DDA.

The complaint relates to the fit-out of the Premises as a cinema complex. The second respondent had no responsibility for the fit-out of the Premises. The second respondent had no control over the fit-out of the Premises, either initially or in subsequently directing any changes to that fit-out. The second respondent had no role in the obtaining of planning and building approvals for the fit-out of the Premises. I cannot see how the second respondent is in a relationship with the first respondent that would enable the second respondent to cause, instruct, induce, aid or permit any unlawful discrimination concerning that fit-out of the Premises in the sense required by section 122.

I find on the material before me that the second respondent has not caused, instructed, induced, aided or permitted the first respondent to do any act in breach of the DDA in relation to the fit-out and construction of the Premises.

Accordingly, I find that the complaint in relation to the second respondent under section 122 of the DDA should be dismissed under section 100(a) on the basis that it is lacking in substance.

6.       DIRECTIONS

Accordingly, I make the following directions in this matter:

1.       I direct that the inquiry into this complaint as against the second respondent be dismissed.

2.       I direct that the inquiry into this complaint proceed against the first respondent only.

I note that on 9 August 1999 Commissioner Innes made directions for a timetable for the preparation of the matter for hearing. Those directions remain in place as between the complainant and the first respondent. It is therefore not necessary for me to address any further directions in this regard.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Decision of Commissioner Kathleen McEvoy.

Hearing Solicitor:

Date: 6 January 2000