Blakeley v Wattle Residential Parks Pty Ltd

NCAT Administrative and Equal Opportunity|2020-06-17

REASONS FOR DECISION

The applicant, Mr Blakeley, complains that he was discriminated against on the grounds of his disability, contrary to the Anti-Discrimination Act 1977 (the ADA) by the operator of the caravan park where he resides. The complaint as currently framed alleges that he was discriminated against in the area of goods and services in relation to his occupation of a site in the caravan park. He seeks to: 1. Amend his complaint by adding a complaint of disability discrimination in the area of accommodation; and 2. Join Woronora Communities Pty Ltd (Woronora) as a respondent in the proceedings.
Both applications are opposed.

The nature of the complaint

Mr Blakeley resides at a caravan park. He has a disability which necessitates him using a wheelchair and he is unable to drive a motor vehicle.
Mr Blakeley alleges that on 24 November 2017 a boom gate was installed at the entry to the caravan park and that he was refused an access card to the gate on the basis that he did not have a vehicle. He claims this caused him detriment and loss of a benefit as his visitors, including carers and service providers, could not access the park.
It is not in dispute that he was issued an access pass in August 2019.

Legislation

Section 49B provides: "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. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability: (a) 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, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability."
Section 49M 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."
Section 49N provides: "49N Accommodation (1) It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability: (a) by refusing the person's application for accommodation, or (b) in the terms on which the person is offered accommodation, or (c) by deferring the person's application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation. (2) It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability: (a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or (b) by evicting the person, or (c) by subjecting the person to any other detriment. (3) Nothing in this section applies to or in respect of the provision of accommodation in premises if: (a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and (b) the accommodation provided in those premises is for no more than 6 persons. (4) Nothing in this section applies to the provision of accommodation in premises where special services or facilities would be required by the person with a disability and the provision of such special services or facilities would impose unjustifiable hardship on the person providing or proposing to provide the accommodation whether as principal or agent. (5) Nothing in this section applies to the provision of accommodation to persons who have a particular disability by a charitable body or other body that does not distribute its profits to members. (6) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the person who provides the accommodation."
Section 4(1) provides that "accommodation" includes residential or business accommodation.
Section 103 provides: "103 Tribunal may amend complaint (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit."
Section 44 of the Civil and Administrative Tribunal Act 2013 provides: "44 Parties and intervention (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has - (a) been improperly or unnecessarily joined, or (b) ceased to be a proper or necessary party. (3) For the avoidance of doubt, the member or members who constituted the Tribunal when it made an internally appealable decision cannot be made parties to an internal appeal against the decision. (4) The following persons may intervene and be heard in proceedings to which they are not already parties - (a) the Attorney General, (b) a Minister who administers the legislation that confers or imposes functions the exercise (or purported exercise) of which are in issue in the proceedings, (c) any other person who is authorised by this Act, enabling legislation or the procedural rules to intervene in the proceedings. (5) A Minister may (from money otherwise lawfully available for the purpose) authorise the payment to a party to the proceedings in which the Minister or the Minister's delegate intervenes such costs (if any) as the Minister considers were reasonably incurred by that party in relation to the proceedings as a result of that intervention."

Principles to be applied to amendment

The scope of s 103 of the ADA was considered by the Appeal Panel of the former Administrative Decisions Tribunal in Zhang v Blinds Pty Ltd t/as Blinds by Peter Meyer [2008] NSWADTAP 24. The Appeal Panel adopted the reasoning in Chand v Rail Corporation of New South Wales [2007] NSWADTAP 54, which was in the following terms: "37. The ordinary grammatical meaning of section 103(2) is that the Tribunal may amend the complaint either by adding complaints or by adding anything else, such as further allegations. The only qualification to the amendment power is that the additional complaint or other matter "was not included in the complaint as investigated by the President." …Relevant considerations when deciding whether to exercise the discretion to add a complaint is the age of the additional complaint and its relationship with the complaint that has already been referred. Contrary to the Tribunal's conclusion, the fact that the complaint did not occur within the period as investigated by the President, does not prevent it being added."
In Thompson v Rail Corporation NSW [2008] NSWADT 329 at [13] Deputy President Britton said, after considering Zhang and Chand: "The Act does not stipulate the matters the Tribunal should take into account when exercising its power to amend a complaint. The factors to be taken into account will vary from case to case and the weighting to be given to each a matter for the Tribunal. In addition to those factors listed in Chand, the following factors may be relevant: Whether the proposed amendment falls within one of the grounds for declinature available to the President (section 89B(2) and section 92(1)(a)). Whether the proposed amendment is futile because it seeks to pursue claims that are untenable. Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs. Whether the proposed amendment raises any issue of joinder. Whether the allegations contained in the proposed amendment forms part of a complaint lodged with the President that has yet to be determined or referred. Whether if refused/granted, any party might be prejudiced. Whether the party making the application is in default of previous orders."

Amendment of complaint - area of accommodation

The applicant's existing complaint is within the area of goods and services. He wishes to also claim discrimination in the area of accommodation. There is no definition of "accommodation" in the ADA beyond that it includes business and residential accommodation.
The applicant's agent submitted that the applicant is a homeowner under the Residential (Land Leases) Communities Act 2013 (the RLLC Act) and resides at the caravan park. The RLLC Act deals with residential communities which are defined in s 4(1) as: "an area of land that comprises or includes sites on which homes are, or can be, placed, installed or erected for use as residences by individuals, being land that is occupied or made available for occupation by those individuals under an agreement or arrangement in the nature of a tenancy, and includes any common areas made available for use by those individuals under that agreement or arrangement."
A "home owner" is defined as: "(a) a person who owns a home on a residential site in a community that is the subject of a site agreement (whether or not the person resides at the site), or (b) a person who obtains an interest in a site agreement as the personal representative, or a beneficiary of the estate, of a deceased individual who, immediately before the individual's death, was a person mentioned in paragraph (a), or (c) another successor in title of a person mentioned in paragraph (a), but does not include any person, or any person of a class, excluded from this definition by the regulations."
A "home" is defined as: "(a) any caravan or other van or other portable device (whether on wheels or not) other than a tent, used for human habitation, or (b) a manufactured home as defined in the Local Government Act 1993, or (c) any conveyance, structure or thing of a class or description prescribed by the regulations for the purposes of this definition."
It was not in dispute that the operator of the caravan park provides the site, water and electricity under a site agreement, and Mr Blakeley owns the caravan in which he resides.
The respondent submits that "accommodation" in the ADA does not include a residential site under the RLLC Act where the operator provides only the site and utilities and not the lodging or dwelling. It submits that the reference to "premises" in s 49N indicates that the section deals with structures rather than a site.
There are no cases in the NSW jurisdiction where "accommodation" in the ADA has been held to include a site in a caravan park. Unlike anti-discrimination legislation in some other jurisdictions, the ADA does not include caravan sites in the definition of "accommodation". There are cases where caravans have been held to be accommodation, but neither the respondent nor Woronora provides or rents a caravan to the applicant.
The Macquarie Dictionary defines "accommodation" as: "noun 1. the act of accommodating. 2. the state or process of being accommodated; adaptation. … 5. anything which supplies a want; a convenience. 6. lodging, or food and lodging."
As remedial legislation intended to address discrimination, the Act should be construed beneficially (Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 at [115] and cases cited therein, including Director-General, Department of Community Services v MM [2003] NSWSC 1241 at [24] to [27]). This would support a broad interpretation of the term "accommodation".
It is also relevant to refer to the context in which the word appears. Sub-section 49N(3) commences with the words: "Nothing in this section applies to or in respect of the provision of accommodation in premises if:…" and refers to a person who "resides… on those premises" as well as "accommodation provided in those premises". (My emphasis).
Sub-section 49N(4) commences with the words: "Nothing in this section applies to the provision of accommodation in premises where special services or facilities would be required …" (My emphasis)
The wording emphasised above suggests that "accommodation" may include premises in which people reside but the meaning of the term is not limited to such premises. If this were not the case, the sub-sections could simply have referred to "accommodation".
Section 49N also contemplates accommodation being "occupied", and a person being evicted from accommodation. Both these could be applied to a caravan site.
I therefore conclude that "accommodation" in s 49N can include a caravan site to which the RLLC Act applies.
The next question is whether the amendment should be allowed.
The applicant relies on s 49N(2)(a) and (c) which provide that: (2) It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability: (a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or … (c) by subjecting the person to any other detriment.
The alleged acts relied upon are denial of unimpeded access to the site, denial of an access card and treating the applicant's guests in such a way that limited their access to parking. In my view these alleged acts could come within the provisions of s 49N(2), therefore the argument is not futile in my view.
As the facts are not new facts, neither the respondent nor Woronora would be prejudiced by the amendment. The amendment does not necessitate a joinder although the applicant seeks joinder of a party for other reasons.
For the reasons stated above, I have determined that the complaint should be amended to include a claim under s 49N(2)(a) and (c) of the ADA.

Joinder of Woronora Communities Pty Ltd as a respondent

In considering whether the power to join Woronora should be exercised, I will proceed on the basis that the complaint includes a complaint that s 49N(2)(a) and (c) have been breached. The power of joinder conferred by s 44(1) is to be read in conformity with the power to remove a person who is a party to proceedings, so that a party who is a "proper or necessary party" ought to be joined in the proceedings: Commissioner of Police New South Wales Police Force v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327 at [38].
The applicant says it is necessary to join Woronora as a party to the proceedings because it is the operator of the park. The respondent and Woronora deny this and say that Wattle Residential Parks Pty Ltd is the operator. They say that Wattle Residential Parks Pty Ltd issued the access passes and installed the gate; and the correspondence relied on by the applicant was sent by the managers of the park on the operator's behalf.
The RLLC Act distinguishes between the owner and the operator of a community. The "operator" means: "(a) the person who manages, controls or otherwise operates the community, including by granting rights of occupancy under site agreements or tenancy agreements, whether or not the person is an owner of the community…"
The owner of a community means the owner of the land on which the community is located (s 4(1)).
The respondent tendered a document registering the change of the operator under the legislation to Wattle Residential Parks Pty Ltd dated 9 June 2016.
It also tendered a Park Operator Agreement dated 26 May 2016. The agreement requires Wattle Residential Parks Pty Ltd to engage all employees or contractors required and any on site managers in its own name and capacity; and manage and operate the Park.
The applicant's agent said he could not dispute the contents of those documents but maintained his submission.
Based on the available evidence I am satisfied on the balance of probabilities that Wattle Residential Parks Pty Ltd is the operator of the park and is responsible for managing and operating the park pursuant to the Park Operator Agreement and the legislation. The actions which are complained about by the applicant come within the scope of managing and operating the park. On this basis in my view it is not necessary to join Woronora as a respondent in the proceedings for the complaint to proceed.

Orders 1. The application to amend the complaint in these proceedings by adding reference to s 49N(2)(a) and (c) is granted. 2. The application to join Woronora Communities Pty Ltd as a respondent in the proceedings is refused.

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: 30 June 2020

Anti-Discrimination Act 1974(NSW)

Residential (Land Leases) Communities Act 2013(NSW)

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Judgment (8 paragraphs)

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Legislation Cited (3)

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