Australia, June 30 -- New South Wales Land and Environment Court issued text of the following judgement on May 29:

1. GPK is the parent of GPJ, a child with a diagnosed neurological condition which requires the use of a motorised wheelchair. GPK alleges that GZH, a Horse Association, has unlawfully discriminated against GPJ, on the grounds of disability, by requiring that GPJ wear a helmet while leading a horse during a horse show. GPK also alleges that GPK has been victimised by GZH, after making this complaint of disability discrimination against GZH.

2. The Tribunal has dismissed the complaint in whole because the Tribunal has not substantiated that GZH unlawfully discriminated against GPK on the grounds of disability in the provision of goods and services and has not substantiated that GPK was victimised by GZH as a result of making the complaint.

3. The reasons for this decision are set out below with a section addressed directly to GPJ who was present at the hearing.

Relevant law

4. Given the various references in the evidence to terminology and provisions of the Anti-Discrimination Act 1977 (NSW) (ADA), before turning to the evidence and the Tribunal's consideration, the relevant law is explained below.

Disability discrimination

5. As recognised by the High Court and this Tribunal, disability discrimination differs from other forms of discrimination such as sex, race and age as it gives attention to the admitted difference. The focus is not on equal treatment but on recognising that there may be a need to do something different so that the person with the disability can be treated the same as everybody else: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92, [198]-[203], [207]; Lonie v LiveBetter Services Limited [2023] NSWCATAD 60, [8].

6. Part 4A of the ADA covers discrimination on the ground of disability. A reference in Part 4A to a person's disability includes a reference to a disability that the person has (ADA, s 49A(a)).

7. Pursuant to s 49B(1) of the ADA, a person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator:

a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability (direct discrimination), or

b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply (indirect discrimination).

8. Something is done on the ground of a person's disability. If it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability (ADA, s 49B(2)).

9. The fact that a person who has a disability is accompanied by, or possesses a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, is taken to be a characteristic that appertains generally to persons who have that disability (ADA, s 49B(3A)).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19713db672a3dcb980446a34)

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