IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992 (CTH)
JUDGE: HON WILLIAM CARTER QC
Number of pages - 15
DATE OF HEARING: 11 February 2000
DATE OF DECISION: 12 May 2000
PLACE: COFFS HARBOUR, NSW
Mr Paul Batley of Legal Aid NSW appeared for the complainant
Mr Bill Langler of Murray Backhouse Turner, Solicitors appeared for the
The complaint was substantiated but no relief was ordered.
HON WILLIAM CARTER QC
On 6 April 1995 Holiday Coast Cinema Centres Pty Ltd ("the operator") lodged a
development application with the respondent ("the Council") for alterations to
its cinema involving an overall reduction in seating capacity from 553 to 496
patrons. Ross David Colquhoun wrote the development application. Mr Colquhoun
is an architect based in Coffs Harbour who had been engaged by the operator to
do certain architectural drawings. Mr Madge, the principal of the operator,
signed the application. That application noted the "estimated cost" to be
$100,000.00. Note 1 to the application provides that "in the case of a building
or work, the fee is based on the estimate cost". The "fee" here referred to is
the fee which attaches to the lodgement of the development application.
The cinema was part of an existing shopping centre and the proposed
redevelopment of the cinema centre necessarily involved alterations to the host
building. It will be necessary to refer in greater detail below to the evidence
of Mr Colquhoun but it can be noted here that Mr Colquhoun's professional
engagement was as a consultant architect engaged by the operator. The building
work was at least in part the responsibility of the owner who had engaged the
building contractor. Mr Colquhoun was not in any sense a supervising architect
and his evidence makes clear his somewhat limited involvement in the proposed
redevelopment of the cinema within the shopping centre.
It will be necessary to refer again to Mr Colquhoun's evidence concerning his
having written "$100,000" in the development application as the "estimate" of
the cost of development.
This proposal for the redevelopment of the cinema had been preceded by an
earlier proposal for a much more extensive redevelopment and this had been the
subject of discussions between Council officers. A significant part of the
earlier discussions had focused on the provision of suitable access for persons
The plans submitted with the development application dated 6 April 1995 had
made no provision for persons with disabilities.
On 13 April 1995 Ms Janice Kilbourne, the community officer engaged by the
Council, submitted her report to the Manager, Development Control, in respect
of the development application. Her major concern was the lack of provision for
access for persons with disabilities and that this may involve a breach of the Disability Discrimination Act 1992 (Cth) ("the DDA"). Her report
"...but the clause of "unjustifiable hardship" in this instance could well be
applied as the entire re-development is only $100,000."
Her reference to "unjustifiable hardship" is a reference to the exclusion of
unlawfulness in a case comprehended by section 23(2)(b) of the DDA.
The report of Ms Kilbourne is the first reference to the "unjustifiable
hardship" issue which is at the core of the later developments in the matter.
On or about 11 May 1995 the Council approved the application subject to
conditions. The Council minute notes:
"On the matter of the Commonwealth Disability Act it is reasonable under the
circumstances stated in the report to confirm that the application has a fair
claim for hardship in this particular circumstance".
On 7 August 1995 the complainant made complaints to the Human Rights and Equal
Opportunity Commission ("the Commission") under the DDA against the operator
and the Council.
The complaint against the operator was heard by Commissioner Keim on 29 August
1997. He found that the operator had unlawfully discriminated against the
complainant in breach of section 23 of the DDA by failing to provide access
(Cooper v Holiday Coast Cinema Centres Pty Ltd, HREOC, 29 August
On 3 December 1997 Commissioner Nettlefold inquired into the complaint against
the Council and on 18 May 1998 he determined that the Council had not acted
unlawfully in breach of the DDA by approving the development application without
imposing a condition for the provision of disability access, by issuing the
relevant Building Notice of Approval to the operator, or by permitting the operator
to operate the relevant premises (Ian Cooper, President North Coast D.I.A.L.
Inc. v Coffs Harbour City Council, HREOC, 18 May 1998). The complaint against
the Council had alleged liability on the part of the Council by reason of section
122 of the DDA which provides as follows:
122 Liability of persons involved in unlawful acts
A person who causes, instructs, induces, 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 the act.
The complaint against the Council was based on the allegation that the Council
had acted unlawfully in that it had "permitted" the operator to do an act that
was unlawful, namely to provide the cinema premises without the provision for
access for persons with disabilities. Commissioner Nettlefold dismissed the
complaint having found for reasons set out in his determination that the
Council should not by operation of section 122 be "taken" to have done anything
made unlawful by the DDA.
An application for the review of Commissioner Nettlefold's decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) came before
Madgwick J in the Federal Court. On 4 March 1999 his Honour granted the
application and remitted the matter to the Commission, differently constituted,
for determination according to law.
On 11 February 2000 the further inquiry into the complaint against the Council
was concluded at Coffs Harbour. Some further evidence was heard and Counsel for
both parties agreed to provide written submissions by 31 March 2000.
1. THE DECISION OF JUSTICE MADGWICK
His Honour's decision is reported at Cooper v HREOC and Coffs Harbour City
Council  FCA 180.
His Honour noted that the first step in establishing liability under section
122 was to establish an unlawful act on the part of the principal - in this
case, the operator. This issue had been concluded by the decision of
Commissioner Keim and was an agreed fact in the inquiry before Commissioner
His Honour went on (at page 17) -
"It seems to me that, for the purposes of the Disability Discrimination
Act, one person permits another to do an unlawful discriminatory act if he
or she permits that other to do an act which is in fact discriminatory. It is
not essential to the concept of permission, in this context, that the permittor
should know or believe in the lack of cogency of an assertion of unjustifiable
hardship, particularly having regard to the unavoidably subjective features
included in such an assertion and in knowledge or belief about it."
He concluded (at page 18) -
"The consequence is that, at least in a case where the presence of such
material does not positively satisfy the Commission that the supposed permittor
honestly and reasonably believed that unjustifiable hardship would be involved,
such material is not relevant to a conclusion on liability."
His Honour went on to hold that if the Council honestly believed on reasonable
grounds that the facts were such as would constitute unjustifiable hardship on
the part of the operator in accordance with the principles in Proudman v
Dayman (1941) 67 CLR at pages 540-1, the Council had not acted
Therefore the issues for determination consequential upon the decision of
Madgwick J can be summarised as follows:
(i) Whether the Council aided or permitted an act by
the operator which was in breach of section 23 of the DDA.
(ii) Whether the Council had an honest belief at the
material time that the operator had a claim for unjustifiable hardship.
(iii) Whether that belief was based on reasonable
The Council does not dispute that by granting the development application
without attaching the relevant condition for persons with disabilities it
permitted the operator to do an act which was unlawful under the DDA.
The complainant does not argue that the Council "aided" the operator to breach
The Council argues that it honestly and reasonably believed that the
circumstances were such that the operator would suffer "unjustifiable hardship"
if required to make the premises accessible to persons with disabilities using
wheelchairs in a manner which avoided a breach of the DDA.
The complainant accepts that there is no evidence to suggest that the Council
did not honestly believe that the operator was entitled to be excused from
compliance with the DDA on the grounds of unjustifiable hardship.
The only question therefore is whether the Council, on whom rests the relevant
onus, can establish to the satisfaction of the Commission that it had a
reasonable belief in a state of things which, if true, would have excused the
operator from compliance on the ground of unjustifiable hardship. This inquiry
focussed solely on this issue.
2. THE LEGISLATION
Section 11 of the DDA provides -
11 Unjustifiable hardship
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 the disability of a person
(c) the financial circumstances and the estimated
amount of expenditure required to be made by the person claiming unjustifiable
(d) in the case of the provision of services, or the
making available of facilities--an action plan given to the Commission under
Section 23(2)(b) of the DDA provides -
23 Access to premises
(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:
(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 122 of the DDA provides -
122 Liability of persons involved in unlawful acts
A person who causes, instructs, induces, 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 the act.
3. THE EVIDENCE
As pointed out previously it seems that the first mention of the issue of
unjustifiable hardship in the Council documents in respect of this application
was made by Ms Kilbourne in her report dated 13 April 1995. Her concern was
based on the fact that the provision of access for persons with disabilities
using wheel chairs may be so costly as to constitute an unjustifiable hardship
given that the cost of "the entire redevelopment is only $100,000". This sum,
it will be recalled, was written into the development application by Mr
Colquhoun and signed by Mr Madge just seven days earlier on 6 April 1995.
There is no evidence in the relevant documentary exhibits which suggests any
specific inquiry by the Council or its officers in an attempt to establish the
validity of the claim by reference to the provisions of section 11 of the DDA.
On 26 April 1995 the operator wrote to the Council and alleged -
* That it was "physically impossible" to provide
either a lift or a stair riser;
* That the cost was prohibitive, namely "over
* That the expenditure would be uneconomic in the
light of expected commercial opposition;
* That a proposed new cinema in Bray Street would
provide appropriate facilities for the disabled; and
* The redevelopment of the cinema the subject of the
application would involve a reduced seating capacity for patrons.
The evidence for the Council was given by Mark Stanley Hannon, its Corporate
Liaison Officer who is a qualified health and building surveyor and who had the
immediate responsibility for this development application. He had also been
involved in considering the earlier 1994 proposal and took part in the
discussions between Council officers, the operator and Mr Colquhoun. These
discussions had taken place on the basis that the estimated cost of the 1994
proposal was $800,000.00. However when the subject application was made it was
not preceded by any preliminary discussions of the kind that had occurred in
There is evidence that after the application was made Mr Hannon had a
discussion with Mr Colquhoun and the operator and that this discussion had
focussed on the fact that the proposal in respect of which the approval was
sought did not provide for any access for persons with disabilities.
Mr Hannon had been in the employment of the Council for some years. He was well
known to, and he himself well knew, professional persons in Coffs Harbour of
whom Mr Colquhoun was one. Likewise he regarded the operator as a good
corporate citizen in Coffs Harbour whose "bona fides" were accepted. I am
satisfied that the evidence concerning the $100,000.00 estimate made by Mr
Colquhoun in the application which was signed by Mr Madge was accepted by Mr
Hannon and impliedly by the Council as genuine and bona fide. It was certainly
accepted as such by Ms Kilbourne because her concerns about the relevance of an
unjustifiable hardship claim were really based on her acceptance of the fact
that the cost of "the entire development is only $100,000". It was that
estimate which, I am satisfied, raised in her mind the possibility of the
operator rightly claiming unjustifiable hardship in the provision of suitable
access for persons with disabilities.
In my view Ms Kilbourne and Mr Hannon accepted the estimate written by Mr
Colquhoun in the application. Each of them made an assumption that knowing the
operator and his architect, one could fairly assume that $100,000 "was within
the ball park". In the initial stages the only relevance of the estimated cost
was for the assessment of the fee for the application. The figure only assumed
more significance when the application fell for consideration by Ms Kilbourne.
I am satisfied that these officers proceeded to assess the application on the
assumption that the estimate of $100,000.00 was a genuine and bona fide
estimate of the cost of the redevelopment. They were not to know that the
actual cost (without the provision for access for persons with disabilities)
was in fact four times that estimate. The concession by Counsel for the
complainant that Mr Hannon and indeed other Council officers and the Council
itself had acted honestly in accepting that estimate was properly made. The
reasonableness of their so doing is the more important issue.
Mr Hannon's evidence is clear that the core issue for the Council was the
disproportionate cost involved in the provision of access given that the
"entire redevelopment" cost for the proposal was "only $100,000". Was it
reasonable for the Council and its officers to so conclude and to make the
assumptions which, I am satisfied, were made?
In analysing this issue it is necessary to turn first to the evidence of Mr
As pointed out previously, Mr Colquhoun was engaged by the operator but on a
very limited basis. During the course of the inquiry on 11 February 2000, this
exchange occurred between him and Counsel for the complainant.
"Q: Was your involvement really after having
undertaken the design and the drawings of the project - then to shepherd it
through the development application and the building application and then step
away, leave it in the hands of the builder after that?
A: I wouldn't even use the term that I would shepherd
it through that process. I was available if I was needed but really my
engagement was only up to the point of the submission of relevant applications
to the Council and beyond that it was first on an ad hoc basis that I was
called in as necessary."
He went on to say that he may have been required for advice "to resolve
problems" but that other experts were available and consulted as required. The
extent of Mr Colquhoun's involvement is best shown by his evidence that in fact
he had no knowledge of what the completed costs for the redevelopment were.
Referring to the drawings which he provided for the purposes of the
application, he described these as "skeleton drawings" because "the job was
being built as a cost-plus contract". The owner was responsible for the cost of
the work that "became part of the building" and the operator "was responsible
for whatever items were I guess fixtures within that that would remain in his
possession". Mr Colquhoun went on to say that because of the nature of the work
and no doubt because of the financial arrangements between owner and operator
"it was impossible to price" the job. His evidence that he nominated the sum of
$100,000.00 as the estimated cost needs to be understood in the light of his
later evidence that the nature of the work, the fact that it was a cost-plus
contract, and the division of financial responsibility between owner and
operator meant that one could not make a valid estimate of the likely cost of
development at the time of the lodgement of the development application. It was
as Mr Colquhoun said "impossible to price".
Again this evidence needs to be seen in the context of other evidence involving
Attached to Mr Colquhoun's statement, which became an exhibit, is a document
headed "Cinema Centre Budget" and dated 21 April 1995, two weeks subsequent to
the date of the development application. It was to said to have been prepared
for the operator and is described by Mr Colquhoun as "an informal budget
estimate" for his client. His statement says that it was prepared for the
purpose of the operator's submission to Council dated 26 April 1995. There is
no evidence of it having been given to the Council.
The budget estimate included a provision for air conditioning which according
to Mr Colquhoun's statement was "not considered to be subject to development
In spite of the content of his statement Mr Colquhoun was less definite when
questioned about the Cinema Centre Budget document. When asked about the
"purpose" of the document he said that "it was really an internal thing within
my office". He believes it was given to Mr Madge but "other than that it was
basically for my own use". He conceded that significant and costly items were
not included because "this job was complex in so far as the owner and the
operator were paying for various parts of the work separately and this [meaning
the budget estimate] is probably basically just the building - basically the
building shell works". His reference to "the air conditioning system" in his
statement is intriguing because whilst it was a necessary cost in the
redevelopment it was not an item like many others which needed to be the
subject of development approval. In evidence he again asserted that "he [the
operator] wasn't relying on this budget for his construction work. Probably
concurrently with this there was a builder engaged who was preparing the actual
construction for the job." Finally when asked about the "actual cost of the
redevelopment of the cinema" he said, "I can honestly say that I have no
knowledge of the final cost".
The evidence of Mr Colquhoun makes clear the fact that the "estimates" of
$100,000.00 (which appears in the development application) and of $167,000.00
(which is described as the cinema centre budget) both of which were drawn by
the architect, are not and were not intended to provide a valid estimation of
what the cost would be for the proposed redevelopment of the cinema complex
which was the subject of the development application. Mr Colquhoun described
his inclusion of $100,000.00 in the application as "a broad brush type budget".
I am satisfied that the estimation was never a serious attempt to validly
estimate the cost of the proposed development. Its inclusion was in substance a
mere convenience. So too in respect of the "budget" figure of $167,000.00. This
was probably nothing more than a rough working document which Mr Colquhoun
prepared "basically for my own use".
This evidence reflects not only the limited and marginal involvement of Mr
Colquhoun with the redevelopment project but also the fact that the intrinsic
nature of the contractual and other relationships involving owner, operator,
builder and architect were not defined nor intended to be defined and regulated
with sufficient precision for there to have been any valid estimation done of
the cost of the project which the Council had under consideration. As Mr
Colquhoun said, that was "impossible".
It seems to me that in light of these facts, it was quite artificial for the
Council or its officers to attempt to address the question whether the cost of
providing access for persons with disabilities was "disproportionate" to the
total cost. From the evidence it is clear that the views of the Council and its
advisers were largely determined on the false or invalid assumption drawn from
the contents of the development application and Ms Kilbourne's report that the
cost of the "entire redevelopment is only $100,000.00". That was in effect the
information which the Council had access to. The evidence of Mr Colquhoun makes
it clear that had there been any concerted attempt by Council officers,
including Mr Hannon, to obtain valid information from Mr Colquhoun or to seek
verification of the estimate, that attempt must necessarily have failed. What
the Council would have learned was that -
* The owner and operator had agreed to share the
financial responsibility for the total development;
* Mr Colquhoun had a very limited engagement only in
the project and could not have then given a realistic estimation of the cost;
* The contract was in effect a cost plus contract;
* It was "impossible" at that stage to validly cost
the proposed redevelopment.
Inquiries of the kind suggested by the above were never made. Rather Mr Hannon
relied on his own judgement, made on the basis of inadequate information, that
the estimate of $100,000.00 was "within the ball park".
4. HONEST AND REASONABLE BELIEF
I return then to the fundamental issue, namely whether the Council had
reasonable grounds for its admittedly honest belief that the applicant for
development approval could validly claim unjustifiable hardship pursuant to
section 23(2)(b) of the DDA on the basis that the cost of providing access for
persons with disabilities to the cinema was disproportionate to the cost of
As pointed out earlier one can easily be satisfied by the evidence that having
rightly identified the relevance of the unjustifiable hardship issue in the
context of this application, the Council then accepted as valid the stated
estimate in the application document on the assumption that the operator and
its architect were persons of bona fides and because in Mr Hannon's view the
stated estimate was "within the ball park". Clearly no further inquiries were
made or more valid estimates sought, not only in relation to the cost of the
project but also in respect of an acceptable means of access including all of
the "financial circumstances" which were relevant to a claim for unjustifiable
Was it sufficient in the context of this case for the Council to do only what
it did if it was to avoid a finding of unlawfulness on the basis that the
operator could properly claim relief under the DDA on the ground of
unjustifiable hardship? It could only do that if it reasonably believed that
the relevant cost was disproportionate and that other factors supported a valid
claim by the operator for relief. Was the test of reasonableness of belief
satisfied by the Council's mere reliance on the contents of the application,
its knowledge of the persons involved, the submissions of the operator, its own
officer's assessment that the estimated figure was "within the ball park", and
its own perceptions of the difficulty for the operator in attempting to comply
with the DDA?
In addressing this question matters of principle arise.
Prima facie, in permitting the development to proceed without access for
persons with disabilities, the Council was about to act unlawfully and in
breach of the DDA. It could only avoid such a finding on the basis of an honest
and reasonable belief that the operator could properly claim unjustifiable
hardship if account were taken of "all relevant circumstances of the particular
case" (section 11 of the DDA). One such circumstance was "the financial
circumstances and the estimated amount of expenditure required to be made by
the person claiming unjustifiable hardship" (section 11(c) of the DDA). In
short it had to convert a potentially unlawful situation to one which could
In this the onus lay on the Council. Its fundamental obligation was to
reasonably inform itself of the relevant facts upon which to found its belief.
The time frame within which this matter was dealt with by the Council was
relatively brief. The development application was received on 7 April 1995. The
Council decided the matter at its meeting on 11 May 1995. If the Council was to
avoid a finding of unlawfulness it would have had to establish that by 11 May
1995 its honest belief that the operator could validly claim unjustifiable
hardship was reasonably based.
In my view the Council cannot in this case satisfy that onus to which it was
subject by relying only on what it did. The need for proper inquiry and
investigation was fundamental. The proposal for redevelopment had been mooted
in the previous year. The anticipated cost had been reduced from $800,000.00 to
$100,000.00. Yet the very nature of the works proposed by the 1995 application
remained substantial and were likely to be costly. An inquisitorial process by
the Council was, in my view, of the essence. Prima facie, its decision on 11
May 1995 was potentially unlawful. The means of avoiding that liability was
available to it. Inquiry sufficient to establish facts which would reasonably
support a valid conclusion was a pre-requisite. In fact it did little or
nothing. What it did was insufficient to satisfy the onus to which it was
subject. Had it made proper inquiries these would have revealed how fragile
were the assumptions which had been made.
To convert a potential finding of unlawfulness to one that it had not acted
unlawfully required much more than its mere acceptance of the content of the
application, the assumptions which it made about the persons involved, the
likely cost of the required access and its impact on the developer's financial
position. In fact it made no significant or relevant inquiry. The circumstances
of the case required it, if it was to be in a position of avoiding the serious
finding of unlawfulness, to at least engage Mr Colquhoun in substantial
discussions about the project, what it involved, the cost of it, and the
difficulties or otherwise in complying with the DDA requirements. An
investigation by it of "all relevant circumstances of the case", to the extent
that that involved Mr Colquhoun, would have immediately revealed that the
assumptions upon which it had initially proceeded were wrong or at least
subject to significant doubt. Such a basic inquiry would have alerted the
relevant Council officers that their assumptions made so far were probably not
For there to have been an honest and reasonable basis for a belief that the
operator could itself have avoided unlawfulness on the unjustifiable hardship
ground further inquiry was essential. The nature and extent of such further
inquiry will reasonably be determined by the circumstances of the case. In this
case inquiry made of the operator, the owner of the shopping centre, the
builder and Mr Colquhoun would have revealed not only the complexity of the
works but also the relevant contractual arrangements and that, in Mr
Colquhoun's terms, the job was impossible to price. That would have been
sufficient to alert Mr Hannon that the "ball park" was perhaps more extensive
than his earlier somewhat superficial assessment would have provided. In that
case it may have required advice from a person with qualifications such as
those possessed by Mr Knappick, a quantity surveyor who gave evidence for the
It has to be emphasised that much more was at stake for the Council than having
a sounder basis for assessing the relevant development application fee or a
more reliable statistic. It was in the position of having to do all that was
reasonable in properly informing its belief that the operator could avoid
liability under the DDA by failing to provide access to persons with
disabilities. What was at stake for the Council was the avoidance of a finding
of unlawfulness to which it was potentially and prima facie subject because it
had permitted the operator to proceed with its development without providing
suitable access to persons with disabilities. Therefore the Council on that
account had to do all that was necessary to ensure on its part the integrity of
an honest and reasonable belief that the operator could avoid liability under
The circumstances of each case will determine whether a Council has discharged
the relevant onus. Nor can one define the requirements for each individual case
other than to emphasise that given the nature of the onus to which it is
subject, the Council must do all that will enable it to avoid the prima facie
finding of unlawfulness consequential upon its permitting a development which
is in breach of the DDA.
The opinion evidence of Mr Knappick is relevant not only because of its content
but also to the extent that it demonstrates that professional opinion is
available which can properly and validly demonstrate that the Council may
otherwise be led to a wrong result and which can easily assist it in
determining whether its assumptions are likely to mislead it to the point that
it cannot avoid a finding of unlawfulness. The matters referred to in Mr
Knappick's report which prima facie demonstrate the unreliability of the
information on which the Council proposed to act is easily understood by a
person of average intelligence and experience.
It was essential for the Council to make the necessary inquiries. In this case
the concern must be that the Council did little if anything to properly inform
itself of the relevant matters so that its belief could be supported on
In my view what it did was not sufficient to discharge the onus to which it was
subject. It therefore cannot properly claim that its belief in respect of the
operator's liability under the DDA was an honest and reasonable one.
It follows that the complaint against the Council has been substantiated in
that in terms of section 122, it permitted the development without requiring
compliance with the access requirements of the DDA.
Section 103 of the DDA catalogues the powers of the Commission after inquiry.
It was submitted, inter alia, by the complainant that because of its breach of
the DDA the Council should be ordered to make a public apology to the
complainant and to those whom he was representing and further that monetary
compensation should be ordered.
In my view neither form of relief is appropriate in this case. The Council
clearly identified the relevant issue which it had to consider and it is
accepted that the relevant belief concerning the operator's position was
honestly held by the Council. It fails in its defence because of the
reasonableness issue. In those circumstances the only appropriate relief is to
declare pursuant to section 103(1)(b)(i) of the DDA that the complaint against
the Council has been substantiated and that the Council in approving the
application permitted a breach of the DDA by the operator and that in so doing
its act was unlawful.
DATED THIS DAY OF MAY 2000
Hon William Carter QC