Araya v Owners Corporation SP65717

NCAT Administrative and Equal Opportunity|2020-03-10

REASONS FOR DECISION

These proceedings concerned an application by the Respondent to a complaint referred to the Tribunal from Anti-Discrimination New South Wales, ADNSW, to have the complaint dismissed under section 102 of the Anti-Discrimination Act 1977 (ADA) prior to a final hearing.
Ms Alicia Araya on behalf of herself and her spouse Mr Alexandre Araya complained to the President ADNSW on 11 July 2019 that Ms Araya had been discriminated against by the Owners Corporation of Strata Plan 65717 in the provision of goods and services, on the grounds of her mobility disability. Ms Araya alleged that the Respondent also discriminated against her husband Alexandre Araya on the grounds of disability by association in the provision of goods and services. The focus of the complaint was lack of access to a disability parking spot at the building. The Arayas are owner/ residents at the building.
The Respondent wrote to the President of ADNSW on 19 August 2019 submitting amongst other matters that the Owners Corporation did not provide services within the meaning of section 4 of the ADA and that the complaint did not fall within the ADA. The complaint was not resolved. The President referred the complaint at Ms Araya's request to the Tribunal on 27 November 2019.
The Respondent to the complaint has sought that the Tribunal dismiss the complaint under section 102 of the ADA, essentially on the basis that the Owners Corporation does not provide services.
As a point of clarification, the Tribunal notes that throughout this decision it refers to the Applicant for the order to dismiss the complaint, the Owners Corporation of Strata Plan 65717, as the Respondent.
For the reasons that follow, the Tribunal has decided to dismiss the application to dismiss the complaint under section 102 of the ADA.

Tribunal may dismiss complaint

Section 102 of the ADA provides that the Tribunal may dismiss a complaint at any time on a ground for which the President of ADNSW may decline a complaint under section 92 (1) (a) (i) or (ii) or (b) of the ADA.
Section 92 sets out the reasons for which the President may decline a complaint. Section 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint-- (a) the President is satisfied that-- (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii … (iv) … (v) … (vi) … (vii) …; or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, (2) …
There are numerous cases in which the meaning of the terms "misconceived" and "lacking in substance" have been considered. In keeping with statements made by Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [108]-[109] when dealing with similar provisions in Victorian anti-discrimination legislation, the Tribunal proceeds on the basis that, in broad terms, "misconceived" means a "misunderstanding of legal principle" and "lacking in substance" means "an untenable proposition of law or fact". See Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50].
The Tribunal understands that it has a broad discretion under section 92 (1) (b) to dismiss the complaint if "is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint."
Consistent with the approach taken by the Civil and Administrative Tribunal of NSW (NCAT) and one of its predecessor Tribunals, the NSW Administrative Decisions Tribunal, in deciding whether to exercise the power to summarily dismiss a complaint, or part of a complaint, the Tribunal must take the facts alleged to constitute discrimination and consider whether they reveal an arguable case to the Respondent should answer: Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]- [26]; and Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38].
The power to dismiss a complaint under s 102 must be exercised with extreme caution: Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 at [24]; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16. The need for the exercise of caution is even more apparent where, as in this case, the dismissal application is made prior to the adducing of Ms Araya's evidence at the substantive hearing: Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 at [36].

Background to the Complaint

In summary the complainant alleges that the Respondent Owners Corporation refused her and her husband's request to accommodate her physical disability and parking needs by not permitting her to use the disability parking spot on site. The complainant further alleges that the Respondent continued to pursue litigation against her and her husband in NCAT concerning the use of the parking spot.
The Respondent to the complaint asserts that:

The complainant's allegations do not constitute discrimination under the ADA.
The owners Corporation is not a "person who provides, for payment or not, goods or services".
The Owners Corporation has a role only to carry out the statutory responsibilities and functions under the Strata Schemes Management Act 2015 and has power to do nothing else.

The Respondent's application to have the complaint dismissed came before the Tribunal on 10 March 2020. The core of the Respondent's application to have the complaint struck out was that the Respondent did not provide services within the definition of the ADA.

Statutory framework: unlawful discrimination

The Tribunal sets out below the relevant sections of the ADA upon which a complaint of discrimination on the grounds of disability in the provision of goods and services is based.
Section 49M of the Act makes it unlawful for a provider of goods and services to discriminate against a person on the ground of disability: 49M Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability-- (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services....
"Disability" is defined to include the malfunction, malformation or disfigurement of a part of a person's body, and a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour: s 4 of the ADA.
The Tribunal understands and accepts for the purpose of considering this application that Ms Araya experiences a malfunction of part of her body which results in a mobility disability.
Section 49B of the ADA sets out what constitutes discrimination on the ground of disability both in direct and indirect ways: 49B What constitutes discrimination on the ground of disability (1) 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 ..., 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 (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, ..., 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. (2) … (3) … (4) … ...
Where an act is done for two or more reasons, and one consists of unlawful discrimination, whether or not it is the dominant or a substantial reason for doing the act, then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the ADA.

Direct discrimination

If the complaint is cast as a complaint of "direct discrimination" Ms Araya must establish: 1. That by refusing her access to a suitable parking spot the Owners Corporation treated her less favourably, in the same or similar circumstances, than it treated, or would have treated a person who did not have a mobility disability (less favourable treatment); and 2. That one of the reasons for that less favourable treatment was because of her presumed disability, a characteristic that generally appertains to, or is generally imputed to persons with her particular disability (causation).
The first element requires a comparison to be drawn between the treatment afforded Ms Araya and the treatment that was afforded, or would have been afforded, to a person with substantially the same condition, in the same or similar circumstances to Ms Araya . Critical to that exercise, is the identification of the circumstances surrounding the alleged less favourable treatment.

Indirect discrimination

If cast as an indirect discrimination complaint it would be necessary for Ms Araya to prove that the Owners Corporation required her to comply with a requirement or condition with which a substantially higher proportion of persons who do not have her mobility 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 Ms Araya does not or is not able to comply.

Definition of services

The Respondent to the complaint has applied to have the complaint dismissed on the basis that the Owners Corporation does not provide services within the meaning of the ADA. Section 4 of the ADA contains definitions "services" includes-- (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.
Were Ms Araya's complaint to come before the Tribunal for final hearing the case law provides that the complainant would be required to set out the service provided with some certainty. See Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, in which McHugh J emphasised the importance of articulating with precision the service which is contended for.

The Respondent's Submissions

The Respondent's submissions as to why the complaint should be dismissed were largely set out in the Respondent's response to the complaint dated 19 August 2019 to ADNSW. The Tribunal summarises the Respondent's submissions relevant to this application as follows: • The building had been constructed following development consent from Hurstville Council. • Visitor parking spots are often required as part of the conditions of the development approval. • The consent required parking spaces be provided in accordance with submitted plans. • Lot owners are generally allocated car space or a garage which forms part of their lot. • Visitor parking spots are common property and did not belong to any particular lot owner. Most bylaws require that lot owners do not park in visitor car spaces at all.
Disabled parking spaces had been designated with the strata scheme having regard to the legislative requirements set out in the relevant Building Code of Australia. Removing a space which had been approved and designated for disabled visitors may lead to consequences for the Owners Corporation in terms of a non-compliance notice from the Council. It was not appropriate that the complaints could force the Owners Corporation into such situation or that such a situation would be forced upon the Owners Corporation by another authority.
There were bylaws in place in relation to parking. The rationale for implementing such a bylaw was a need for proper order and control in a strata scheme of this size.
The Respondent understood that the suggested discrimination appeared to be that the Owners Corporation had refused to allow the complainants to appropriate a disabled visitor car space within the strata scheme for their own purpose. The Respondent considered that this did not constitute discrimination under the ADA for a number of reasons.
Firstly, it was unlikely that the threshold definition in section 49 had been met. That is the Owners Corporation is not "a person who provides, for payment or not, goods or services". The Owners Corporation is a legal entity constituted by the combination of all lot owners and the strata scheme. In New South Wales the Owners Corporation is governed pursuant to the Strata Schemes Management Act 2015 (SSMA) and their constitution and function is entirely governed by the SSMA. The responsibilities of the Owners Corporation are set out in section 9 of the SSMA which relates to management and control of the use of common property of the strata scheme and the administration of the strata scheme.
The Owners Corporation has a role only to carry out the statutory responsibilities and functions and has power to do nothing else. There was no basis for suggesting that an Owners Corporation provides goods or services. The Owners Corporation manages and administers, and that is the entire extent of its duties and responsibilities.
Section 9 (2) of the SSMA provides that the Owners Corporation has the management and control of the common property for the benefit of the owners of lots in the strata scheme - see Ozslam Pty Ltd v the Owners - Strata Plan number 1436. (No citation provided).There was no application of the Anti-Discrimination Act.
The Respondent also provided a document annexing documents including the Agency agreement for the Strata Managers role as Agent for the Owners Corporation and minutes of Owners Corporation meetings.
The Respondent made oral submissions to the Tribunal at the preliminary hearing.

The Applicant's submissions concerning section 102 of the ADA

Ms Araya made oral submissions to the Tribunal at the preliminary hearing.
The Tribunal summarises Ms Araya's written submissions that the Respondent was providing services to her as follows.
The Owners Corporation provides financial services as set out in the definition of services in section 4 of the ADA. It raises funds in order to keep the property going and pays contractors. It engages contractors to maintain the property for the owners. If there were no Owners Corporation then the building owners would need to appoint an agent or professionals to do the work of the Owners Corporation.
The Owners Corporation has a role in increasing and maintaining the value of the property for all owners.
The Owners Corporation receives submissions about issues and makes decisions about them. The Owners Corporation had decided to take an action to NCAT in relation to the complainant parking in a visitors disability parking spot. This was a service to the owners.

Services

The Tribunal notes that the Owners Corporation is recognised in law as a "person". The definition of "services" set out in section 4 is expressed as including items a) to f). The definition has been observed to be inclusive (and not exclusive) and operates by way of description rather than precise identification of the content of the term "services". See Commissioner of Police v Mohamed [2009] NSWCA 432 at [30]
In Rainsford v Victoria [2005] FCAFC 163; (2005) 144 FCR 279, when dealing with a case of alleged disability discrimination in the provision of services arising under s 24 of the Commonwealth Disability Discrimination Act 1992 (Cth), Kenny J (with whom Hill and Finn JJ agreed) said (at [54]): Section 4(1) provides an inclusive definition of services …. on account of its remedial character, [the Act] is to be generously construed and the word "services" includes all matters which ordinarily fall within that notion: see IW v City of Perth …The identification of the "service" at issue in any case is a question of fact for the trier of fact: see Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349… The question of whether an activity is a service for the purposes of s 24 of [the Act] is essentially a matter of characterisation. In discharging statutory duties and functions and in exercising statutory powers in the public interest, a body may also be engaged in the provision of services to particular individuals.: see IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
The Respondent submitted that the only job of the Owners Corporation was set out under the SSMA in sections 8 and 9 and therefore it could not provide services.
The Tribunal is satisfied that analogously with the reasoning of the Court in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 while the Owners Corporation has a role and functions set out under an Act this does not mean that it does not provide services.
The Tribunal notes that the Minutes of Meetings of the Owners Corporation show that decisions are taken, and discretion exercised by the Owners Corporation in determining to undertake or not certain actions. The Tribunal also notes that the Owners Corporation has an agency agreement with a strata management provider to carry out some of the Owners Corporation's functions.
In the matter of Hulena v Owners Corporation Strata Plan 13672 [2009] NSWADT 11936 at [36]-[37] this Tribunal noted the expression "services" should be construed broadly. The Tribunal in Hulena referred to the High Court judgment in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 191 CLR at 11-12, which was concerned with the provision of services for the purposes of the Equal Opportunity Act 1984 (WA). The WA Act defines "services" similarly to the NSW ADA.
The Court in IW v City of Perth referred to the Interpretation Act 1984 (WA) which requires preference to be given to the construction of a written law that would promote the purpose or object underlying that law to a construction that would not promote that purpose or object. They also referred to the rule of construction that beneficial and remedial legislation, like anti-discrimination law, is to be given a liberal construction. The Court stated that the Tribunal may not give a term a construction that is unreasonable or unnatural. However, if the term "service", read in the context of the Act and its objects, is capable of applying to an activity, a court or Tribunal, exercising jurisdiction under the Act, should hold that that activity is a "service" for the purpose of the Act."
In the matter of Hulena the Applicant had brought a complaint of disability discrimination against the Owners Corporation of a Strata Plan in the provision of goods and services. The Tribunal held that an aspect of the alleged services provided by the Owners Corporation - "Provision of entrances and exits to/from the common property" did constitute a service.
The Tribunal in Hulena considered that this service contemplated the making of changes to the common property. The power to make alteration to common property was conferred by the Strata Schemes Management Act 1996 (NSW).

Conclusion

The Tribunal approaches this application maintaining the cautious approach that the Tribunal must take in dismissing a complaint under section 102 of the ADA prior to final hearing. The Tribunal notes that on a previous occasion in the matter of Hulena, the Tribunal has determined that the provision of entrances and exits to/from the common property were "services". There are similarities between Ms Araya's concerns about access and the use of common property and the matters dealt with in the matter of Hulena. This Tribunal is not satisfied on the balance of probabilities that the Owners Corporation SP65717 does not provide services within the meaning of section 4 of the ADA. Of course, at any final hearing of the complaint it will be necessary for Ms Araya to describe with some precision the service she alleges was being provided by the Owners Corporation.
On the basis of this finding, the Tribunal is not satisfied that the complaint should be dismissed because the complaint is misconceived or lacking in substance, or that the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or that for any other reason no further action should be taken in respect of the complaint.
The Tribunal is not satisfied that it should dismiss Ms Araya's complaint on behalf of herself and her husband at this point on the alleged basis that the Respondent Owners Corporation does not provide services within the meaning of the ADA.

Decision

For the reasons set out above the Tribunal determines that the application to dismiss the complaint under section 102 of the ADA, should be dismissed.

Orders 1. The application to dismiss the complaint is dismissed

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2020

Strata Schemes Management Act 1996(NSW)

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