Araya v Owners Corporation SP65717

NCAT Administrative and Equal Opportunity|2020-10-28|Before: Dr J, Prof J

REASONS FOR DECISION

These proceedings involve the issue of whether an owners corporation discriminated against the applicant residents on the ground of disability, by not permitting them to use the disabled visitors' parking space and by enforcing a by-law which prohibited them from using that parking space.
Mr and Mrs Araya claimed that the Owners Corporation directly discriminated against them by pursuing them for parking in the disabled visitors' parking space, whilst not taking comparable action in respect of other residents who parked in visitors' parking spaces. They also claimed that the Owners Corporation indirectly discriminated against them by requiring them to comply with the requirement not to park in visitor car spaces, being a requirement with which an able-bodied resident could comply more easily.
We have dismissed the direct discrimination complaint on the basis that Mr and Mrs Araya have not established that Mrs Araya's disability was a reason for the Owners Corporation's differential treatment of them.
We have dismissed the indirect discrimination complaint on the basis that Mr and Mrs Araya have not established that the Owners Corporation required Mr and Mrs Araya to comply with a requirement or condition with which a substantially higher proportion of persons who do not have Mrs Araya's disability comply or are able to comply.

Relevant legislation

Section 49M of the AD Act provides: 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.
Sections 49A, 49B(1) and (2) and 49C of the AD Act provide: 49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability - (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 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 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, 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. (2) For the purposes of subsection (1) (a), 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. … 49C What constitutes unjustifiable hardship In determining what constitutes unjustifiable hardship for the purposes of this Part, 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 concerned, and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
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 AD Act, the act is taken to be done for that reason (AD Act, s 4A).

Matters applicants need to prove

Mr and Mrs Araya claim that the Owners Corporation directly and indirectly discriminated against them on the ground of Mrs Araya's disability, in the terms on which they provided services to them.
In order to establish that the Owners Corporation directly discriminated against them on the ground of disability, Mr and Mrs Araya have to establish that: 1. Mrs Araya has a disability; 2. the Owners Corporation provides services; 3. the Owners Corporation discriminated against Mr and/or Mrs Araya in the terms on which it provided services to them, and treated Mrs Araya less favourably than it would have treated a person without Mrs Araya's disability, and Mr Araya less favourably than it would have treated the husband of a person without Mrs Araya's disability, in the same or similar circumstances; 4. the less favourable treatment was on the ground of Mrs Araya's disability.
In order to establish that the Owners Corporation indirectly discriminated against them on the ground of disability, Mr and Mrs Araya have to establish that: 1. Mrs Araya has a disability; 2. the Owners Corporation provides services; 3. the Owners Corporation provided services on particular terms to Mr and Mrs Araya; 4. the Owners Corporation required Mr and Mrs Araya to comply with a requirement or condition; 5. a substantially higher proportion of persons who do not have Mrs Araya's disability, or who do not have a relative or associate who has Mrs Araya's disability, comply or are able to comply with that requirement or condition; 6. the requirement or condition was not reasonable having regard to the circumstances of the case; and 7. Mr and Mrs Araya did not or were not able to comply with the requirement or condition.
If Mr and Mrs Araya can prove these matters, then the Owners Corporation's defences become relevant.

Does Mrs Araya have a disability?

The evidence of Mr and Mrs Araya is that Mrs Araya is disabled and has a government-issued mobility parking permit. She was born with scoliosis. She was also involved in a serious car accident some years ago in which her pelvis was crushed, throwing her spine further out of alignment. Mrs Araya has limited movement in her neck, back and hips. She lives in constant pain.
We accept Mrs Araya's evidence as to her condition, which was not seriously challenged.
The term "disability" is defined in s 4(1) of the AD Act to include "total or partial loss of a person's bodily or mental functions or of a part of a person's body" and "the malfunction, malformation or disfigurement of a part of a person's body". We are satisfied that Mrs Araya has suffered partial loss of her bodily functions and the malfunction, malformation or disfigurement of a part of her body (being, at least, her spine and pelvis).
Accordingly, we find that Mrs Araya has a "disability" within the AD Act.

Does the Owners Corporation provide services?

The term "services" is defined inclusively in s 4(1) of the AD Act as follows: 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.
The Owners Corporation submits that it is not "a person who provides, for payment or not, … services" within s 49M(1) of the AD Act. The Owners Corporation relies upon s 8(1) of the Strata Schemes Management Act 2015 (NSW), under which it is constituted, and s 9 of that Act which provides for the responsibilities of an owners corporation. Section 9 of the Strata Schemes Management Act provides: 9 Owners corporation responsible for management of strata scheme (1) The owners corporation for a strata scheme has the principal responsibility for the management of the scheme. (2) The owners corporation has, for the benefit of the owners of lots in the strata scheme - (a) the management and control of the use of the common property of the strata scheme, and (b) the administration of the strata scheme. (3) The owners corporation has responsibility for the following - (a) managing the finances of the strata scheme (see Part 5), (b) keeping accounts and records for the strata scheme (see Parts 5 and 10), (c) maintaining and repairing the common property of the strata scheme (see Part 6), (d) taking out insurance for the strata scheme (see Part 9).
The Owners Corporation submits that it does not provide services because it only acts pursuant to its statutory powers. Mr McGrath put it this way: "The Owners Corporation only has a role to carry out the statutory responsibilities and functions, and has power to do nothing else. The Owners Corporation submissions is that the Applicants have no basis for suggesting that the Owners Corporation provides goods and services as the Owners Corporation manages and administers of which is the entire extent of its duties and responsibilities."
In determining the summary dismissal application, the Tribunal (constituted by Senior Member Scahill) gave reasons for rejecting the submission of the Owners Corporation that it does not provide services in Araya v Owners Corporation SP65717 [2020] NSWCATAD 104 at [41]-[49]. We agree with the Senior Member's conclusion that the Owners Corporation does provide services and with her reasoning for arriving at that conclusion.
The High Court considered the meaning of "services" in the Equal Opportunity Act 1984 (WA) in IW v City of Perth [1997] HCA 30; (1998) 191 CLR 1, which was given a similar, inclusive definition in that Act. Brennan CJ and McHugh J noted the word has a "wide meaning" (at 11). Their Honours noted that the circumstance that a council provided or refused to provide a service in the exercise of a statutory power or duty did not make the Act in question inapplicable (at 12-13). The premise underlying the Owners Corporation's submission, that an act done pursuant to a statutory power or duty is not the provision of a service, is accordingly misconceived.
As Mr and Mrs Araya submitted, the Owners Corporation manages and controls the use of the common property of the strata scheme pursuant to s 9(2)(a) of the Strata Schemes Management Act. That constitutes the provision of a service to the owners of the lots in the strata scheme (including, at relevant times, Mr and Mrs Araya). It also provides a service to lot owners by managing the finances of the strata scheme, pursuant to s 9(3)(a) of the Strata Schemes Management Act.
For these reasons, we find that the Owners Corporation is "a person who provides, for payment or not, goods or services" within s 49M(1) of the AD Act.

Differential terms

Mr and Mrs Araya claim that the terms on which the Owners Corporation provided them with services, which were different from the terms on which they provided other lot owners with services, included the following: 1. The Owners Corporation pursued Mr and Mrs Araya for breach of a by-law concerning the parking of their vehicle in the disabled parking space. They say that the Owners Corporation decided not to pursue dozens of other cases concerning residents unlawfully parking in visitor car spaces. They also say that the Owners Corporation has the power to place penalties on the owners in breach of a by-law and to pursue that through the court or tribunal system, but only did that with them. 2. The Owners Corporation refused to engage in mediation with Mr and Mrs Araya, through Fair Trading, in about August 2018, to discuss the issue of accessible parking, whereas it engaged in mediation with the owner of another lot who had been repeatedly parking in a visitor car space.
We consider that the relevant service is the management of the use of the common property. The terms on which Mr and Mrs Araya claim that this service was provided to them were by enforcing the Parking By-law against them and refusing to mediate about their issues concerning parking.
There is only a limited amount of evidence about the way in which the Owners Corporation dealt with the Parking By-law in respect of other residents. However, we accept Mr and Mrs Araya's evidence that the building manager, who was also a lot owner, although not a resident, used a disabled parking space for many years to store skip bins and the Owners Corporation did not take any action against him. We also accept that the Owners Corporation decided to mediate with the owner of another (specified) lot, instead of bringing proceedings in the Tribunal against that owner. There is no evidence that the building manager or the other lot owner had a disability.
The Owners Corporation did not submit that the circumstances in which the building manager or the other lot owner contravened the Parking By-law were materially different from the circumstances in which Mr and Mrs Araya did so. At the hearing, Mr McGrath described the situation of the other lot owner as a "somewhat similar situation." We find that the circumstances were not materially different.
Accordingly, we find that the terms on which the Owners Corporation provided Mr and Mrs Araya with the service of managing the use of the common property (within AD Act, s 49M(1)(b)) were less favourable than the terms on which it provided those services to other lot owners without a disability. It thereby treated them less favourably than it treated other persons without the disability, or who did not have a relative with the disability, in circumstances which were not materially different.

Was the less favourable treatment "on the ground of" Mrs Araya's disability?

The causation element requires the Tribunal to ask whether Mrs Araya's disability was one of the "real," "genuine" or "true" reasons for providing the service on less favourable terms: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 at [13], [167]. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the Owners Corporation refusing to mediate with Mr and Mrs Araya, or for it deciding to pursue their contravention of the Parking By-law in the Tribunal (Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]).
Mr McGrath explained to the Tribunal, at the hearing, the Owners Corporation's reasons for its treatment of Mr and Mrs Araya and the treatment of other lot owners. He said that Mr and Mrs Araya's request for mediation had been considered, but it was refused because the strata committee could not overturn the Owners Corporation's decision of July 2018 not to allow Mr and Mrs Araya to park in the disabled visitors' parking space.
Mr McGrath said that the Owners Corporation decided to mediate with the other lot owner because that lot owner had not provided the Owners Corporation with the details of the resident (occupier) who was parking unlawfully. He said that the Owners Corporation considered that mediation was required to get the details of the resident. He stated that the Owners Corporation does take action against by-law breaches and that its action against Mr and Mrs Araya was not discriminatory. The decision as to how to proceed depends, according to Mr McGrath, upon whatever the most appropriate action is in the circumstances.
Mr McGrath relied upon the letter written by the solicitors for the Owners Corporation to the President of the Anti-Discrimination Board in August 2019. In that letter, the solicitors for the Owners Corporation stated: "…the owners corporation would be in breach of the conditions of the Development Consent for the property if it handed over exclusive use of a disabled car space to the Complainants because the space in question would be effectively removed from use as a visitor car parking space if it was to be provided to the complainants for their personal and exclusive use. Further, the owners corporation would be in breach of its responsibilities generally in relation to the statutory provision of accessible parking under the relevant Local Environment Plan and Building Code. Further again, the owners corporation cannot simply decide that it will waive the requirements to comply with its by-laws to suit a single lot owner, in circumstances where those by-laws have been made for the benefit of the owners corporation as a whole (and noting, as we have above, the need for such visitor car parking spaces, including disabled visitor car parking spaces, to be available to persons visiting the property). The owners corporation has not merely ignored the complainants' perceived need. For example, the owners corporation would agree to the Complainants installing an automatic garage door opener on the garage to their lot, alleviating the need for the Complainants to get in and out of their motor vehicle when parking in their allocated parking space."
Mr McGrath told the Tribunal that that letter explained why the Owners Corporation could not have adhered to Mr and Mrs Araya's request. He also said that the Owners Corporation would have taken the same action to enforce the by-laws irrespective of Mrs Araya's disability.
There is no direct evidence that Mrs Araya's disability was a factor in the Owners Corporation of Mr and Mrs Araya and, as can be seen, that is denied by the Owners Corporation.
An applicant may seek to prove that disability was a factor in his or her treatment, by way of inference from other facts: Hamed v Director General, Department of Education [2007] NSWADT 43 at [26]; Khanna v Director General, NSW Department of Education & Communities [2012] NSWADT 92 at [17].
In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70], the Administrative Decisions Tribunal identified the following principles as being relevant to the drawing of inferences: "…(ii) an inference must be reasonably drawn on the basis of the primary facts; (iii) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ; (iv) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; (v) it is not enough that the inference is a mere possibility: it must be one of 'probable connection'; (vi) the inference must be a logical one, and not supposition; (vii) an inference cannot be made where more probable and innocent explanations are available on the evidence."
Mr and Mrs Araya ask the Tribunal to infer, from the circumstances of their differential treatment, that Mrs Araya's disability was a reason for that differential treatment. We do not consider that this inference can properly be drawn. Mr McGrath has provided evidence as to the reasons why the Owners Corporation acted as it did. We generally accept that evidence. Although the reasoning of the Owners Corporation could be questioned, and Mr and Mrs Araya disagree with some of its factual assumptions, we are not persuaded that a real or true reason for its treatment of Mr and Mrs Araya was Mrs Araya's disability.
As for the building manager who used the disabled parking spot to store skip bins, Mr McGrath stated at the hearing that bins were not stored in visitor car parking spaces. The evidence of Mr and Mrs Araya was that the building manager used a visitor parking space for bins, which was marked as a disabled parking space on the original plans. We accept Mr and Mrs Araya's evidence on this point, as it is plausible and Mr McGrath did not elaborate on his denial or provide an explanation as to why Mr and Mrs Araya were incorrect. However, it cannot be inferred that the failure of the Owners Corporation to take any action in the case of the building manager means that a reason for its decision to take action in Mr and Mrs Araya's case was Mrs Araya's disability. An equally plausible explanation was that it saw the storage of skip bins as being in the common interest of residents or, possibly, it genuinely considered that the place where the skip bins was stored was not a visitor parking space.
As we are not satisfied that a reason for the Owners Corporation's differential treatment of Mr and Mrs Araya is Mrs Araya's disability, Mr and Mrs Araya's direct disability claim, which relies upon s 49B(1)(a) of the AD Act, is dismissed.

Compliance with a requirement or condition

In order to establish their indirect discrimination claim, Mr and Mrs Araya must prove that the Owners Corporation required them to comply with a requirement or condition with which a substantially higher proportion of persons who do not have Mrs Araya's disability, or who do not have a relative or associate who has that disability, comply or are able to comply (Act, s 49B(1)(b)).
The phrase "requirement or condition" is not defined by the AD Act. The alleged "requirement or condition" must be identified with some degree of precision (Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 185; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 393, 406-7; Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at 143). However, "considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain" (Walker v State of Victoria [2011] FCA 258 at [194], cited in Lance Tyrrell v Coles Supermarkets Australia Pty Ltd [2020] NSWCATAD 57 at [32]).
The words "requirement or condition" are to be given a broad rather than a technical meaning, given the nature of the mischief, indirect discrimination, with which s 49B(1)(b) is concerned: State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 at 195.
In their submissions to the Tribunal, Mr and Mrs Araya submitted that it was the "supposed equal application of by-laws" which gave rise to indirect discrimination. They submitted: "Where a policy which may appear fair or neutral is applied equally but the effect is that a person with a disability is unable to meet it compared with someone without a disability, that is indirect discrimination. Certainly, that is our case. The by-law states that residents may not park in visitor car spots. But it is much harder, if not impossible, for a disabled resident to abide by that by-law than it is for an able-bodied resident, as the disabled resident has no alternative accessible spot to park in and hence, by necessity, ends up in constant breach of by-law and racking up fines. This is because of the equal application of a policy in an unequal situation."
We consider that the applicants have identified a requirement with sufficient precision, being that residents are not to park in visitor car spaces.

Differential treatment

As already indicated, Mr and Mrs Araya must establish that a substantially higher proportion of persons who do not have Mrs Araya's disability, or who do not have a relative or associate who has Mrs Araya's disability, comply or are able to comply with the requirement not to park in visitor car spaces.
To undertake that comparison it is necessary to identify the relevant "base group" to whom the requirement is directed (Bonella & Ors v Wollongong City Council [2001] NSWADT 194 at [77]; Garriock v Football Federation Australia [2016] NSWCATAD 63 at [43]). That "base group" is residents of the apartment in which Mr and Mrs Araya lived.
We accept that Mrs Araya's disability makes it difficult for her to park in the parking space allocated to her. There is no evidence of the ability or otherwise of other residents to park in visitor car spaces. Mr and Mrs Araya are, effectively, asking us to take judicial notice of the fact that a substantially higher proportion of residents who do not have Mrs Araya's disability, which makes it difficult for her to turn her neck and to lift a garage door, are able to comply with the requirement not to park in visitor car parking spaces. The basis for this is the assumption that they can park in the parking space allocated to their apartment.
It is not necessarily the case that other residents can park in the parking space allocated to their apartment. Some residents may have one parking space but two cars. Some owners may have rented out their apartment, but not their parking space.
In order to take judicial notice of facts, without inquiry, those facts must be "open and notorious" or "indisputable and notorious" (Thomas v Mowbray (2007) 233 CLR 307 at [523], [549], [619]).
In State of NSW (NSW Police Force) v Whitfield [2012] NSWADTAP 27 at [67] and [69], the Appeal Panel of the Administrative Decisions Tribunal commented: 67 At common law judicial notice may be taken of 'facts, which a judge can be called upon to receive and to act upon either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer': Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191, 212 (Sumner LJ). … … 69 In anti-discrimination proceedings, caution should be exercised in finding a fact by taking judicial notice especially when it is done under the first limb of Sumner LJ's formulation without any reference to an external reliable source (s 144(1)(a) of the Evidence Act). See further, Walker v State of New South Wales [2003] NSWADT 13 at [44]-[46].
This Tribunal's Appeal Panel has also made comments concerning the need for caution before taking judicial notice of facts.
In Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16, the Tribunal identified the requirements applicable to a senior constable who was a single parent with responsibilities as a carer as being "to attend work in accordance with the roster that is posted or current on a particular day". The senior constable submitted that the Tribunal was entitled to take judicial notice of the circumstance that single parents are less able to comply with such requirements than those who are not single parents. The Tribunal did not agree, but found that it could take judicial notice of the fact that "a small percentage of police officers are not able to comply with the requirement to attend work as rostered" because this was "common knowledge, and not reasonably open to question" (at [93]).
On appeal, in Wright v Commissioner of Police [2014] NSWCATAP 67, the Appeal Panel said at [64] that the question of "the difficulties that a sole parent has in providing care as distinct from one who has a supportive partner" was "a matter that should be the subject of evidence." It also indicated its agreement with reservations expressed by Beazley ACJ about lightly taking judicial notice of matters in Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145 at [94]-[95].
It is probably indisputable and notorious that a substantially higher proportion of persons without a neck injury would be able to comply with a requirement to park in a narrow and confined car parking space than persons, like Mrs Araya, who have a spinal or neck injury. However, we do not consider that it is indisputable and notorious that a substantially higher proportion of residents who do not have Mrs Araya's disability are able to comply with the requirement not to park in visitor car parking spaces.
There was no evidence before us dealing with relevant matters such as the proportion of residents with two or more cars and the ability of residents, in practical terms, to find alternative parking on the street. We have almost no evidence before us about the ability of other residents to comply with the requirement not to park in visitor car parking spaces. The evidence we do have, including from Mr and Mrs Araya, indicates that other residents frequently park in visitor car parking spaces. The applicants stated: "We have photographs taken on randomly chosen dates proving that many residents habitually park on a nightly basis in the general visitor car spots. The visitor spots are full every night, all night, week in, week out, year in, year out. No resident will deny that. There are residents who own two cars, park one in their garage and one in the visitor spot. There are residents who use their garage for storage and park their car in the visitor spot. And yet I am the only one who has been taken to tribunal."
It follows that we are not able to find, on the evidence, that a substantially higher proportion of persons who do not have Mrs Araya's disability, or who do not have a relative or associate who has Mrs Araya's disability, comply or are able to comply with the requirement not to park in visitor car spaces, within s 49B(1)(b) of the AD Act.
For these reasons, Mr and Mrs Araya's indirect discrimination claim 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: 11 January 2021

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