By Christopher McGrath, University of Technology Sydney

This case note was originally published in the Animal Law Case Book, ed Sophie Riley (1st ed, 2015) and has been republished with minor edits by Voiceless with permission from the editor.   

Citation: Ondrich v Kookaburra Park Eco Village [2009] FMCA 260

Court – Federal Magistrates Court of Australia
Judge – Burnett FM
Date of Judgment – 1 April 2009

FACTS OF THE CASE

Ondrich, the applicant, lived with her husband, her children, and her dog, Punta, in a building scheme known as the Kookaburra Park Eco Village (the Park). The Park was a community title scheme and the body corporate had created by-laws prohibiting residents from keeping cats or dogs on both individual lots and the common property. Ondrich said she suffered various medical conditions including anxiety and depression and that Punta was purchased to help alleviate some of her symptoms. Punta had received obedience training, but was not specially trained to assist with disabilities.

The Park tried to enforce the by-laws preventing Ondrich from keeping Punta. After mediation failed, Ondrich appealed to the Federal Magistrates Court alleging that removal of Punta amounted to discrimination under the Disability Discrimination Act 1992 (Cth) (‘the Act’).

THE ISSUES

• Whether Ondrich’s condition was a disability within the meaning of s 4 of the Act.
• Whether the conduct amounted to indirect discrimination within the terms of s 6 of the Act.
• Whether the conduct amounted to discrimination within the terms of s 9 of the Act.
• Whether the Park unlawfully discriminated under s 24 of the Act, and if so, whether the Park could relieve itself from liability by proving unjustifiable hardship.

THE DECISION

Whether the condition amounted to a disability

Burnett FM in the Federal Magistrate Court was satisfied that Ondrich suffered from psychiatric conditions sufficient to constitute a disability under s 4 of the Act.

The presence of indirect discrimination

The Court found that Ondrich could not establish discrimination within the terms of s 6 as she had failed to identify a base group, as well as a “comparative group” of which she was a member, to allow the Court to assess the alleged discrimination.

In reaching his conclusion, his Honour relied upon Black CJ’s dissent in Forest v Queensland Health and the requirement, in cases of indirect discrimination to identify an “appropriate base group” with which to compare the group comprising the individual who is aggrieved. The Court cited the test articulated by Collier J in Forest v Queensland Health [2007] FCA 936: “to determine whether there has been indirect discrimination, it is necessary to identify an “appropriate base group” with which to compare the group comprising the individual claiming discrimination, and to decide whether a substantially higher proportion of those individuals from the base group are able to comply with the relevant requirement or condition”. Ondrich failed to meet this threshold.

The presence of discrimination

Ondrich also failed to establish, under s 9, that Punta should be classified as an assistance animal. Under s 9, an assistance animal must be trained for the purposes of alleviating the disability. The Court held that Punta’s obedience created a significant bond with Ondrich and expert testimony noted that the presence of Punta reduced some of Ondrich’s anxiety. However, these factors did not satisfy the test. The Court could not be persuaded that there was a real nexus between Punta’s training and the assistance Punta provided to alleviate Ondrich’s disability. Simply having an assistance animal was not sufficient to enliven s 9.

Breach of the Act

As the Court found that Ondrich had failed to establish that she was discriminated against, it stated that it was unnecessary to consider whether or not the alleged discrimination was unlawful. However, the Court indicated that had Ondrich been able to establish discrimination under s 9, she would have been successful in claiming that the Park unlawfully discriminated under s 24 by refusing Ondrich access to its premises. The Park would not have been successful in arguing that a ruling of unlawful discrimination would impose unjustifiable hardship upon it under s 24(2).

COMMENTARY

Burnett FM reinforced the requirement under the Act that an assistance animal must have specific training to alleviate a disability for the purposes of the Act: “while obedience training clearly did assist the applicant and her dog it was not training to assist in the alleviation of the effects of her disability. From that evidence the fact of the dog’s companionship appears to be the cause of the applicant’s better psychological state of mind. However this evidence does not of itself demonstrate that training was required to develop that state of companionship.” The case also emphasised the importance of identifying both a base and a comparison group to establish indirect discrimination.