Sutherland v Tallong Park Association Incorporated (No.2) [2006] NSWADT 287

Sutherland v Tallong Park Association Incorporated (No.2) [2006] NSWADT 287

The applicant proved distress and loss of enjoyment of his property arising from the respondent's unlawful requirement that pool users traverse a pedestrian pathway from the main car park to the pool, but did not prove that deterioration in health, alleged vilification, or disharmony with others was caused by that unlawful conduct. General damages of $6000 were therefore justified. Because the Tribunal should not prescribe the precise future method of compliance, the proper access relief was an order enjoining the respondent from continuing or repeating the unlawful conduct, with delayed commencement to allow compliance. No apology, further interim order, costs order, delay or stay was...

Jurisdiction
Australia
Judgment Date
03 October 2006
Procedural Posture
Disability Discrimination Goods and Services / Determination of Relief After Tribunal Decision Substantiating Complaint; Respondent Lodged an Appeal Against the Liability Decision
Outcome
Relief granted in part: injunction and damages ordered; no order as to costs; apology, further interim order, and stay refused.
Legal Topics
['indirect Disability Discrimination' 'access to Swimming Pool Facilities' 'damages for Non Economic Loss' 'injunctive Relief' 'apology' 'costs' 'stay Pending Appeal']
['anti Discrimination Law' 'disability Discrimination' 'goods and Services'] ['indirect Disability Discrimination' 'access to Swimming Pool Facilities' 'damages for Non Economic Loss' 'injunctive Relief' 'apology' 'costs' 'stay Pending Appeal']

Case Brief

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Procedural Posture

Disability Discrimination Goods and Services / Determination of Relief After Tribunal Decision Substantiating Complaint; Respondent Lodged an Appeal Against the Liability Decision

Legal Issues

  1. 1 ["What loss or damage was suffered by the applicant by reason of the respondent's unlawful conduct." 'Whether damages should be awarded for alleged deterioration in health, stress, vilification and loss of enjoyment of property.' 'What order should be made to address access to the pool under s 108(2)(b) and s 108(2)(c) of the Anti-Discrimination Act 1977.' 'Whether the respondent should be ordered to publish an apology.' 'Whether previous interim restraints should continue.' 'Whether circumstances justified an order for costs.' 'Whether the Tribunal should delay or stay relief because the respondent had lodged an appeal.']

Ratio Decidendi

The applicant proved distress and loss of enjoyment of his property arising from the respondent's unlawful requirement that pool users traverse a pedestrian pathway from the main car park to the pool, but did not prove that deterioration in health, alleged vilification, or disharmony with others was caused by that unlawful conduct. General damages of $6000 were therefore justified. Because the Tribunal should not prescribe the precise future method of compliance, the proper access relief was an order enjoining the respondent from continuing or repeating the unlawful conduct, with delayed commencement to allow compliance. No apology, further interim order, costs order, delay or stay was...

Court Disposition

Relief granted in part: injunction and damages ordered; no order as to costs; apology, further interim order, and stay refused.

Orders

  • ['The respondent is enjoined from continuing or repeating the unlawful conduct; that conduct being the imposition of a requirement that in order to use the pool facilities at Tallong Park Estate a person must traverse a pedestrian pathway from the main car parking area a distance of approximately 75 metres to the...