Knox v Body Corporate for 19th Avenue CTS 6625 [2020] QCAT 497

Anti-Discrimination Act 1991 (Qld), s 5, s 11, s 46, s 83, s 204, s 205, s 206, s 209

Body Corporate and Community Management Act 1997 (Qld), s 94

Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld), s 161, s 163, s 167

Disability Discrimination Act 1992 (Cth)

Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121

C v A [2005] QADT 14

Green v State of Queensland, Brooker and Keating [2017] QCAT 008

Hulena v Owners Corporation Strata Plan 13672 [2009] NSWADT 119

Jackson v Ocean Blue Queensland Pty Ltd & Ors [2020] QCAT 23

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Thorne v Toowoomba Regional Council & Tytherleigh [2017] QCATA 128

Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349

Strangman, B of counsel instructed by Whitehead Crowther Lawyers

1. Alison Knox and her husband William Knox live in a unit within a building units plan at Palm Beach ('the building'). The Body Corporate for 19th Avenue CTS 6625 ('the respondent') administers the common property for the benefit of the owners of the units or lots in the scheme for the building. Relevantly, the respondent must comply with legislation in administering the common property for the owners of the lots in the scheme.[1]

• [2] The building has common property such as a swimming pool and foyer entrance. There are steps in the front of the building and from the foyer lift to the foyer floor to enable owners and visitors of the building to enter the building. There is also a basement carpark.
• [3] Mrs Knox has partial loss of her body function and relies on the assistance of a wheelchair for her mobility. She is unable to independently access parts of the building and common property where she lives such that she requires the assistance of a ramp because she is unable to traverse steps. Mrs Knox is unable to open a hydraulic door that requires her to swipe an access card (to allow her to enter the swimming pool area) and she is unable to use the swimming pool without assistance. Mrs Knox could, however, use the swimming pool if a pool hoist was purchased and installed.
• [4] Mrs Knox complains that the respondent is in breach of the Anti-Discrimination Act 1991 (Qld) ('the Act') on the basis of her partial loss of her bodily functions to walk and move, and her reliance on a wheelchair.
• [5] Mrs Knox raises five matters of alleged indirect discrimination relating to her inability to access the entry to the building (from the street), to access the foyer from the lift, to access the basement carpark from the lift and to access the swimming pool area. Mrs Knox also complains that she is unable to use the swimming pool.
• [6] At the first oral hearing before the Tribunal, Mr Strangman appearing for Mrs Knox submitted that three of the five contentions of alleged indirect discrimination have been remedied by the respondent to the extent that Mrs Knox can now access the front of the building, the foyer, and swimming pool area. At the conclusion of the first oral hearing Mrs Knox was directed to file any further evidence in relation to her ability to move in and around the common property of the body corporate and use the facilities relevant to her claim for compensatory damages for loss of amenity, hurt and distress caused by any contravention.[2]
• [7] At the resumed hearing before the Tribunal, Mr Strangman submitted that there is only one contention that remains to be remedied, that is the purchase and installation of a pool hoist.
• [8] Mrs Knox seeks a final order from the Tribunal that the respondent purchase and install an electric pool hoist on the common property in the indoor pool area with such hoist to be a kingfisher brand hoist.[3] Mrs Knox also seeks an order that the respondent pay her compensation in the amount of $50,000.00 for loss of amenity and hurt and distress, and her legal costs of the proceeding.[4]
• [9] Mrs Knox relies on her own evidence and the evidence of her husband, Mr Knox. Mr Knox was at all relevant times acting on Mrs Knox's behalf in relation to this matter. The respondent relies on the evidence of Grant Burrell, secretary of the committee of the Respondent and Lewis Webb, committee member.

• [10] Mrs Knox says that she complained about accessing parts of the building and common property directly to the respondent several years ago in 2013.[5] Relevantly, Mrs Knox says that she first complained about disability access issues to the respondent in late 2013 in relation to 'design flaws' in the proposed pool atrium area.[6] Mrs Knox also says she raised concerns with disability access to the respondent's manager by email dated 6 August 2014.[7]
• [11] On 24 June 2016, Mr Knox as a respondent committee member raised issues about disability access with the respondent committee.
• [12] On 2 August 2016, Mrs Knox with the assistance of Mr Knox, complained to the Australian Human Rights Commission ('AHRC').[8] Following a conciliation conference on 1 March 2017, the respondent agreed to, amongst other things, arrange for a consultant to complete a disability access audit of the building. The respondent also agreed to hold an Extraordinary General Meeting ('EGM') to vote on any proposed works and/or relevant matters recommended by the management committee and/or Mrs Knox.
• [13] On 11 May 2017, the respondent received a report detailing the issues and proposed work following a disability access audit ('the Access Report').
• [14] On 12 May 2017, the committee formed a disability sub-committee which included Mr Knox.
• [15] On 7 June 2017, Mrs Knox and the respondent signed an agreement ('the Conciliation Agreement') setting out the issues agreed upon at the AHRC conciliation conference.
• [16] On 24 April 2019, a motion was passed at an EGM by unit holders to approve certain works to the building such as modifications to the common property and the purchase and installation of a pool hoist. A second motion for approval of expenditure of the approved works was also put to unit holders. The expenditure for the modifications to some of the common property was approved. The expenditure for the pool hoist ('Motion 6') was not approved.

The respondent's duty to administer the common property and assets

• [17] It is non-contentious that the respondent as the body corporate is required to 'administer' the common property and the body corporate assets for the benefit of the lot owners.[9]
• [18] On a plain reading of the relevant sections of the Body Corporate and Community Management Act 1997 (Qld) ('BCCM Act') and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Qld) ('the Module') the term 'administer' as it appears in s 94 of the BCCM Act includes maintaining common property and body corporate assets such that the body corporate can make improvements to common property in certain circumstances, that is not more than the basic improvements limit for the community titles scheme.[10] Further to that, the respondent as the body corporate has a duty to maintain body corporate assets in good condition[11] and may supply, or engage another person to supply, utility services and other services for the benefit of owners in certain circumstances.[12]
• [19] In my view, the respondent as the body corporate in respect of this matter, subject to the BCCM Act and the Module, has a duty to maintain the common property and body corporate assets and this includes making improvements to common property in certain circumstances, and the maintenance of and access to common property including the building, foyer and basement, and swimming pool for the benefit of the individual unit owners.

• [20] Mrs Knox raises five contentions of indirect discrimination on the basis of her impairment said to be occurring in the area of the supply of services as defined in s 46 of the Act and in the area of accommodation for the purposes of s 83 of the Act.[13] The five contentions that were further clarified at the oral hearing are set out below as follows:[14]

(a) Mrs Knox's inability to access the street frontage (or the front of the building) as there are steps at the front of the building and no disability ramp (Contention 1);

(b) Mrs Knox's inability to access the foyer floor area from the lift as there are steps and no disability ramp (Contention 2);

(c) Mrs Knox's inability to access the pool area because the access door is hinged with a hydraulic closing mechanism which requires the swiping of a fob and pulling the door towards her (Contention 3);

(d) Mrs Knox's inability to access the basement carpark because it does not comply with the Australian Standard AS1428 and is constructed in such a way that her wheelchair catches the corners when using the ramp (Contention 4); and

(e) Mrs Knox's access to the swimming pool because she cannot get down the steps and there is no hoist for wheelchair bound people (Contention 5).

• [21] Mrs Knox contends that she cannot travel between her apartment and the street frontage of her residential building and that until sometime in September 2019 she was unable to travel to the pool area and to other areas of the ground floor of the building without assistance from her husband or others.[15] Relevantly, Mrs Knox says that the respondent imposed a requirement (or term) for the purposes of s 11 of the Act, that she use stairs to access the entry to the building and foyer, the basement and other areas of the common property.[16]
• [22] The respondent denies that it is in breach of the Act and says amongst other things that it did not breach the Conciliation Agreement and has been proactive about disability issues.[17] Further and in the alternative, even if the respondent had imposed some or all of the relevant terms or requirements, the respondent submits that such terms are reasonable in all of the circumstances.[18]
• [23] The respondent relies on the exemption provided under s 51 (for goods and services) and s 92 (for accommodation) on the ground of unjustifiable hardship pursuant to s 5 of the Act.[19] Relevantly, s 5 of the Act provides as follows:

5 Meaning of unjustifiable hardship

Whether the supply of special services or facilities would impose unjustifiable hardship on a person depends on all the relevant circumstances of the case, including, for example -

(a) the nature of the special services or facilities; and

(b) the cost of supplying the special services or facilities and the number of people who would benefit or be disadvantaged; and

(c) the financial circumstances of the person; and

(d) the disruption that supplying the special services or facilities might cause; and

(e) the nature of any benefit or detriment to all people concerned.

• [24] In relation to providing access into the pool and the purchase and installation of a pool hoist, the respondent says that unjustifiable hardship is not limited to the financial impacts and refers to the safety and legal rights that the pool hoist would also impose as being relevant to any unjustifiable hardship.[20]

Section 11 of the Act - indirect discrimination

• [25] Section 11 of the Act provides that indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose a term -

(a) with which a person with an attribute does not or is not able to comply; and

(b) with which a higher proportion of people without the attribute comply or are able to comply; and

• [26] Whether a term is reasonable depends on all of the relevant circumstances of the case, including, for example the consequences or failure to comply with the term; and the cost of alternative terms; and the financial circumstances of the person imposing, or proposing to impose the term.[21]
• [27] In determining 'reasonableness' all relevant factors must be weighed.[22] It is settled law that relevant factors may include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, any financial burden and the availability of alternative methods.[23] In Waters v Public Transport Corporation,[24] the High Court considered reasonableness in the context of changes to the operation of public transport in Victoria. Dawson and Toohey JJ (with whom Deane J agreed) said:

Reasonableness...is a question of fact for the Board to determine but it can only do so by weighing all the relevant factors. What is relevant will differ from cases to case, but clearly in the present case the ability of the respondent to meet the cost, both in financial terms and in terms of efficiency, of accommodating the needs of impaired persons who use trams was relevant in relation to the reasonableness of the requirements or conditions which it imposed and in relation to the reasonableness of the special manner in which the appellants required the respondent to perform its service. Another relevant factor would be the availability of alternative methods which would achieve the objectives of the Cabinet resolution but in a less discriminatory way. Other factors which might be relevant are the maintenance of good industrial relations, the observance of health and safety requirements, the existence of competitors and the like...[25]

• [28] It is not necessary that the person imposing or proposing to impose the term is aware of the indirect discrimination.[26] The complainant or applicant must prove on the balance of probabilities that the respondent breached the Act.[27] The respondent bears the onus of proof also on the balance of probabilities that a term complained of by the applicant is reasonable and/or an exemption applies.[28]
• [29] In the present matter, it is non-contentious that Mrs Knox has the 'attribute' of being impaired for the purposes of the Act.[29] In 2010, Mrs Knox suffered a stroke which resulted in a partial loss of her bodily functions to walk and move, and that she is now essentially confined to a wheelchair.[30]
• [30] Although there is no evidence before me about other unit owners, I am satisfied for the purposes of the Act that the comparator is 'the residents of and other entrants to the residential building'.[31]
• [31] The term or requirement that Mrs Knox is unable to comply with is the term that she be able to traverse stairways, including the steps within the pool, and use a hydraulic door with a 'fob', if she wishes to access parts of the community titles scheme she resides in.[32] Further, I accept that the term or requirement that Mrs Knox be able to traverse stairways and use a hydraulic door with a fob was a term with which a higher proportion of residents of and/or entrants of the building without the attribute such as the reliance on a wheelchair could easily comply.

Contention 1 - inability to access the street frontage

• [32] The uncontested and incontrovertible evidence is that Mrs Knox by reason of her partial loss of her body function and her reliance on a wheelchair is unable to traverse steps without the assistance of a ramp.
• [33] It is open for me to find that up until November 2019, when a ramp was installed in front of the building, Mrs Knox was unable to access the port cochere and driveway of the building from the foyer.[33] Relevantly, from 2015, when Mrs Knox moved into the building until November 2019, when a ramp was installed, Mrs Knox could not access the street frontage or the front of the building.
• [34] In my view, the term that Mrs Knox be able to traverse the steps at the front of the building was clearly not reasonable. The respondent as the body corporate is responsible for maintaining access to common property including the building. Access to the front of the building could easily be provided by the installation of a ramp.
• [35] The matter does not end here, however, because the respondent submits and I accept, that there was at all relevant times available to Mrs Knox two paths by which she may enter and exit the building now set out below as follows:

(a) Path 1: From her unit, through a vestibule, by the lift to the foyer, down a new ramp that bridges the two foyer steps, though the front door, and onto a raised area of the scheme driveway (which before the driveway involved a curb);

(b) Path 2: From her unit, by the lift to the basement, and then down a basement ramp, where she transfers to Mr Knox's car and he drives her out of the car park.[34]

• [36] The respondent submits that given Mrs and Mr Knox's frustration of other alternatives, this, meaning the alternative pathways identified above, was not an unreasonable imposition.[35] As I understand the respondent's submission to be, relevant to whether the term was reasonable, Mr Knox was at relevant times involved in a number of decisions or proposals by the respondent committee to obtain approval of lot owners for the approval of certain works in relation to disability access including access to the front of the building. Some of the decisions or proposals were delayed because the respondent committee was waiting for Mr Knox to provide information relevant to the disability works to be undertaken.
• [37] The issue before me now is whether the term that Mrs Knox use one of the pathways identified by the respondent and set out above was reasonable in all of the circumstances. This requires me to weigh all of the relevant factors including but not limited to the matters set out under s 11(2) of the Act. Other relevant factors may include the reasons advanced in favour of the term or requirement, the nature and effect of the term or requirement and the financial burden on the respondent.[36]

When did Mrs Knox raise her issues about disability access?

• [38] I accept that Mrs Knox complained to the respondent about several issues collectively with respect to her wheelchair access of certain areas within the building and common property areas including the swimming pool.
• [39] The evidence shows that Mr Knox, on behalf of Mrs Knox, raised concerns more generally about disability access in 2014 in the form of a proposed motion to be put forward at the next General Meeting ('the proposed 2014 motion').[37] In the proposed 2014 motion, Mr Knox refers to an earlier motion approving works to upgrade the pool area made on 20 December 2013. Mr Knox proposes that the motion be rescinded because the proposed work on the building does not meet the requirements of the Disability Discrimination Act 1992 (Cth) and relevant Australian Standard.[38]
• [40] The motion approving the pool works was contested and proceedings followed under the dispute resolution provisions of the BCCM Act. On 27 February 2015, an Adjudicator decided the matter and declared, amongst other things, that the motion dated 20 December 2013 is valid.[39] On a fair reading of the Adjudicator's decision it is clear that Mr Knox's concerns about design features and materials to be used for the works to the pool were considered and rejected. The Adjudicator was not satisfied that the material presented in support of the proceeding demonstrates that the proposed work is outside the industry standards and is unsafe or contrary to legislative requirements.[40] The Adjudicator observed that Mr Knox actually, as found, 'voted in favour of the motion'.[41]
• [41] Following the approval of works to the pool area, Mr and Mrs Knox moved into the building in late 2015 and Mr Knox became a committee member in February 2016.[42] The pool works were completed in 2015 and certified in 2016.[43]
• [42] It is open for me to find on the evidence that the issues concerning Mrs Knox's access to the port cochere and driveway of the building from the foyer (contention 1) were not brought to the respondent's attention until, at the earliest, 29 April 2016.
• [43] This is apparent from a fair reading of a committee item concerning Garden Area Refurbishment dated 29 April 2016. It is noted by Mr Knox that, amongst other things, 'wheelchair access may have to be provided from the driveway via this area...it is important to be aware of current disability access issues'.[44] Mr Knox accepted when questioned at the hearing that up until the end of 2015 the only thing that he was agitating for was compliance with the disability standards and that he did not raise any other disability access issues with the respondent.[45] Further to that, Mr Webb who gave evidence for the respondent accepted when questioned at the hearing that he was aware in August 2016 that Mr and Mrs Knox were complaining about Mrs Knox being unable to access areas of the body corporate and use of the pool.[46]
• [44] In my view, from the end of 2015, when Mrs Knox moved into the building, to November 2019, when a ramp was installed, the requirement that Mrs Knox use one of the pathways discussed above such as to enter and exit the building via the lift and basement was reasonable in all of the circumstances. Further to that, any purported delay by the respondent in installing a ramp in the front of the building to address the issue of access is reasonable and justified in all of the circumstances. As discussed below, the evidence shows that Mr Knox was responsible for and/or contributed to any delay by the respondent in completing the disability access works including the installation of a ramp in front of the building.

What was Mr Knox's involvement as a respondent committee member and sub-committee member?

• [45] The evidence shows that Mr Knox as a committee member took responsibility with other committee members for investigating disability access options from 2016. On 24 June 2016 at a committee meeting, Mr Knox put forward a private motion that he had obtained two quotations to 'bring the entrance, pool door and ramp from the basement car park up to the required standard'.[47] The minutes dated 24 June 2016 record that Mr Knox was to obtain quotes for the work involved because the change to the entrance would require approval at an EGM or Annual General Meeting ('AGM'). Mr Knox said he would submit a motion and costings for the forthcoming EGM by private motion.[48]
• [46] Mr Knox later engaged an architect and prepared a private motion.[49] Before the motion was voted on, however, Mr Knox complained about Mrs Knox's access issues to the AHRC on 2 August 2016. Mr Knox later withdrew his private motion for a modified driveway entry and foyer ramp on 5 August 2016.[50] Mr Knox's evidence given at the hearing about the AHRC complaint is that he said at the finish of the committee meeting held on 5 August 2016 that he is going to, as stated, 'take this up further if we [sic] don't get any support. And that's what I did'.[51] Mr Knox's evidence is that he spoke to people in the building all of the time and they knew what he was doing.
• [47] The minutes of the meeting on 5 August 2016 acknowledge Mr Knox's proposal for modifications to the building were to be undertaken to comply with the Australian Standard 1428.1-2009. This includes 'the driveway at the entrance being raised to the level of the height of the first step and a complying wooden ramp being constructed in the foyer to eliminate the two steps for access to the lifts'.[52]
• [48] Mr Knox withdrew his motion at the meeting on 5 August 2016. Mr Knox's evidence given at the hearing was that the withdrawal of the motion was on the advice of a committee member because the works were within the spending limit for the respondent.[53]
• [49] The minutes record Mr Knox's proposed plan is, amongst other things, linked to the Australian Standards and it was agreed at the meeting to, as recorded, 'begin the process' and that Mr Knox will further investigate options for the surface and sides of the structures to be in line with the aesthetics of the surroundings and report back to the Committee.[54] The meeting agreed that the spending for each project is $23,000.[55]
• [50] Mr Knox confirmed during cross-examination that he voted in favour of the resolution and it was carried unanimously.[56] Mr Knox accepted that options included the foyer ramp.[57] Further, Mr Knox accepted when questioned at the hearing that the respondent was being cooperative at that stage of the meeting. Mr Knox's evidence is that following the meeting, they could not get agreement on what finishes or what else could be done, so the whole project lapsed.[58]
• [51] I accept the evidence of Mr Burrell that he became aware of Mrs Knox's AHRC complaint in late September 2016. Mr Burrell's evidence about the AHRC complaint is that it came as a surprise to him. Mr Burrell refers to the discussions in committee meetings held on 24 June 2016 and 5 August 2016 as being, as stated, 'constructive and co-operative'.[59] Mr Burrell's evidence given at the hearing is that he first became aware of Mrs Knox's complaints about disability access in early 2016 and the respondent commissioned a report in May 2017 (the Access Report).[60]
• [52] I am not persuaded by Mr Knox's evidence that, as stated, '[b]ecause of the lack of action' he applied to the AHRC to seek redress.[61] In my view, the evidence supports a finding that in 2016, when Mr Knox complained to the AHRC, the respondent committee was taking steps necessary to address Mrs Knox's complaints about access to the building. As discussed above, the minutes of the 5 August 2016 meeting record certain action to be taken by the committee to investigate options for Mr Knox's proposed modifications to the building. Mr Knox did not mention to the committee that he had made a complaint to the AHRC. Mr Knox did not dispute when questioned at the hearing about making the AHRC complaint that he did not say anything about the complaint to the committee at the meeting held on 5 August 2016.[62]
• [53] On 24 February 2017, Mr Knox was in attendance at the committee meeting when it resolved that Lewis Webb be the liaison person for disability access.[63] I accept Mr Burrell's evidence that at the meeting on 24 February 2017, the committee discussed the conciliation conference before the AHRC which had been scheduled for 1 March 2017 and that the conference had not occurred sooner because Mrs Knox and Mr Knox had been travelling.[64] Further, I accept Mr Burrell's evidence that given the AHRC complaint had been made, the committee believed it could not take any further action in regards to disability access because the scope of what Mr Knox required was unclear.[65]
• [54] Following the conciliation conference with the AHRC on 1 March 2017, a proposed agreement was reached by the parties but not signed. The respondent did, however, engage an access consultant on 30 March 2017 to conduct a disability assessment audit and the Access Report was prepared and dated 11 May 2017.[66] The evidence shows that there was a committee meeting on 12 May 2017 and consideration of the Access Report was deferred to allow members to read the report. Mr Knox was present at the meeting.[67] A disability sub-committee ('DSC') which included Mr Knox was formed.[68] Mr Knox and the sub-committee were to prepare a proposal for disability access to be presented to the committee.[69]
• [55] Mr Knox's evidence given at the hearing is that he and Mr Burrell prepared a report.[70] Mr Knox stated that he obtained an architect to draw up the plans and got them all done. Mr Knox said he, James Dover and Mr Burrell went, as stated, 'round the pool area and looked at the things that had to be done'.[71]
• [56] A report was presented to the committee on 18 August 2017 without quotations or plans. I accept Mr Burrell's evidence that at the meeting on 18 August 2017, Mr Knox would only permit members to look at the architectural plans, sketches and quotations with photographs under his (Mr Knox's) supervision.[72] Further, I accept Mr Burrell's evidence that Mr Knox, as part of his role on the sub-committee obtained draft specifications, plans and quotations for aspects of the project prior to the meeting but would not agree to hand over the information at the meeting.[73]
• [57] The draft proposal referred to five items being the access through the front entrance, access through the foyer to lifts, access through the foyer door to pool, access into the pool and access from the basement carpark.[74]
• [58] The committee agreed to reimburse Mr Knox for his costs in obtaining the information and resolved that an EGM be held on 29 September 2017 for the purpose of approving the works.[75] Mr Knox resigned from the committee but returned and withdrew his resignation.[76]
• [59] I accept Mr Burrell's evidence that Mr Knox did not supply the information such as draft specifications, plans and quotation obtained by him.[77] Further, I accept Mr Burrell's evidence that he asked Mr Knox outside of the meetings to provide the information.[78]
• [60] Mr Knox accepted when questioned at the hearing that he had paid for the information and had plans and quotations.[79] Mr Knox accepted when questioned that he refused to allow the committee to keep copies of the information. Mr Knox said he had reached the stage where he had done all of the work and no one else had done anything. Mr Knox's evidence given at the hearing is, as stated, 'we had an argument about funding. It couldn't be funded unless it was put in the budget'.[80] Further to that, Mr Knox stated, 'they refused to put it in the budget. And I said well, that's it. I'm the plaintiff in this case. You should do the work. Stuff you'.[81]
• [61] Mr Knox accepted, however, when questioned at the hearing that he was part of the committee and the disability sub-committee and that he was taking responsibility to actually be involved in drafting or providing the information to allow the EGM notice to be drafted.[82] Mr Knox's evidence is that he was getting no support from the committee.[83] Mr Knox accepted, however, when questioned at the hearing that the information obtained by him was handed over in late 2018. Mr Knox stated, 'yeah, because we were going away to the end of that week on another trip and I didn't have time to write the specifications to go with it'.[84] Further, Mr Knox said they meaning the plans were the copyright of the architect and he had paid for them.[85]
• [62] The evidence shows that at a further meeting on 3 November 2017 the committee again asked Mr Knox to provide the information and the committee advised Mr Knox that the information would need to be submitted within one week so that it could be considered at the upcoming meeting.[86] The minutes reflect that Mr Knox advised that as recorded, 'it [meaning the issues of disability access] would go to court if the works were not undertaken'.[87] The relevant extract from the minutes is now set out below as follows:

Disability Access

Progress is hoping to be made on a motion for submission to the AGM. Legal advice was that the motion must also include quotations for the works.

Bill Knox advised it is doubtful that the information required will be available in time of the AGM.

Lengthy discussion was held in regards to this matter, noting that the Committee cannot approve these works and that Bill Knox to provide the information for the Committee to progress further.

No provisions for disability works has been allocated in the proposed budget as no figures have been provided.

The Committee appealed to Bill Knox to provide the quotes, as the Committee are quite prepared to submit to the AGM for voting. Noting the cost will be a Special Sinking Fund levy as it is an improvement.

Bill Knox advised it would go to court if the works were not undertaken.

The Chairperson addressed the committee noting that a sub-committee had been formed to deal with this matter, of which Bill took leadership of, therefore the committee are of the expectation that he would supply the quotes.

Further reiterating that the proposed EGM could not go ahead as the necessary quotes were not supplied. The body corporate can only do what they can with what is provided.

Noting that two quotes have been requested for each proposed improvement.

...[88]

• [63] I accept that in or about November 2017, Mr Knox was frustrated about the progress of the works. It is clear from a fair reading of an email dated 6 November 2017 that Mr Knox communicated his frustrations about progress of the disability works to the committee. In the email Mr Knox states, amongst other things:

I am very disappointed that Lew continues to disrupt any attempts to progress the disability access to our building. I am so annoyed at his snide remark about the [legal representative's] letter that unless the committee passes a vote on adding $40,000 to next years budget for disability access, as requested, I will not release the information to the AGM and tomorrow I will commence investigations into suitable legal advice to begin an application to the Federal Court...[89]

• [64] In my view, despite Mr Knox's frustrations about the progress of the works, as discussed above, the evidence shows that Mr Knox's actions have contributed to any delay by the respondent to complete the disability works.
• [65] On 15 December 2017, a further meeting was held but no consideration given to the disability access works. The minutes reflect that Mr Knox had withdrawn his nomination and he was not elected to the committee.[90]
• [66] I accept Mr Burrell's evidence that the disability access works were not considered at the meeting on 15 December 2017 because Mr Knox had not provided the relevant information about the disability works to the committee.[91] Further to that, I accept Mr Burrell's evidence that the proposed disability access works were not discussed at the subsequent committee meetings on 25 January 2018 and 27 April 2018 because Mr Knox had still not provided the information relevant to disability access.[92]
• [67] Mr Burrell's evidence given at the hearing is that Mr Knox was, as stated, 'insisting' that all five items of the proposed works be approved at once and the respondent had no ability to approve the, as stated, 'amalgamated project'.[93] I accept Mr Burrell's evidence that Mr Knox volunteered as the sub-committee member to get further quotes for presentation to the committee.[94] It is common ground that Mr Knox was at all times representing Mrs Knox. I find that Mr Knox has contributed to any alleged delay by the respondent in addressing the issues of disability access, including the issues raised by Mr Knox on Mrs Knox's behalf that now form part of the contentions before me.

What did the respondent committee do to address the issues of disability access after October 2018?

• [68] It is undisputed that Mr Knox provided the information relevant to disability access to the respondent in October 2018 and the committee paid Mr Knox by bank transfer an amount of money in exchange for it.[95]
• [69] Following a meeting on 2 November 2018, the committee planned to budget $90,000 in the sinking fund for disability access costs.[96] Mr Knox nominated to be on the committee at the meeting on 7 December 2018 but withdrew his nomination because, as stated by Mr Knox at the hearing, of a conflict of interest.[97]
• [70] The meeting minutes reflect that the committee was preparing the material for the upcoming EGM regarding disability access.[98] I accept Mr Burrell's evidence that throughout early 2019, the committee continued to work on finalising the information for the disability access works.[99]
• [71] On 1 March 2019, the committee resolved to convene an EGM for 12 April 2019 for the purpose of considering the disability access project.[100] The EGM was held on 24 April 2019 and four of the five proposed items were approved.[101]

Findings as to the reasonableness of the path for Mrs Knox to enter and exit the building

• [72] I accept the respondent's submission that the requirement that Mrs Knox use one of the alternative paths to enter and exit the building was not an unreasonable imposition. As discussed above, Mr Knox at all relevant times held the position of committee member and sub-committee member and was partly responsible for decisions made by the respondent committee in relation to disability access including the disability access issues that form part of the contentions now before me. Mr Knox, as a committee and sub-committee member, agreed to obtain information relevant to disability access and the proposed works to the building to address issues of disability access. Mr Knox was also representing Mrs Knox in relation to her access issues.
• [73] Although I accept that Mr Knox may have been frustrated with the time it was taking for the respondent to modify the building so that Mrs Knox could access the common property and parts of the building, the evidence shows that Mr Knox was partly responsible for the delay in obtaining the necessary approval for some of the works by lot owners. It is open for me to find that the five items of work that now form part of the contentions before me were to proceed as one project to be approved by lot owners. I accept Mr Burrell's unchallenged evidence that in an email sent to the respondent by Mr Knox dated 23 March 2019, Mr Knox indicates that it would be much simpler for unit owners to vote on just one item.[102] Further, the sub-committee proposal presented at the meeting on 18 August 2017 recommends '5 items (projects' for approval)'.[103] The committee planned to spend $90,000 on access at the meeting on 2 November 2018.
• [74] It is apparent from the minutes of committee meetings that Mr Knox attended the meetings and as part of his involvement on the sub-committee, Mr Knox obtained information relevant to the disability access issues. Mr Knox refused, however, to provide the relevant information to the committee.
• [75] The evidence shows that Mr Knox's lawyers advised the respondent by letter dated 24 August 2018 that as stated '[Mr and Mrs Knox] are now leaving it to the [respondent] to get all relevant quotes'.[104] Mr Knox instructed his lawyers to amongst other things terminate the Conciliation Agreement on 15 May 2018 and to make a complaint to the Anti-Discrimination Commission that was later referred to the Tribunal on 25 October 2018.[105] As discussed above, Mr Knox provided the relevant information to the respondent committee in October 2018.
• [76] After the EGM held on 24 April 2019, work to the front of the building was completed in November 2019. I accept Mr Burrell's evidence that from April 2019, there were unexpected delays in relation to the completion of some of the works such as the entrance ramp. Mr Burrell's evidence is and I accept that, after the EGM there was a process of lodging deposits, work schedules and shop drawings and other delays caused by contractors to perform the work.[106] I accept the respondent's submission that it put five resolutions to lot owners as quickly as it could.[107]
• [77] I accept the respondent's submission that it must comply with the BCCM Act and Module and it was not in a position to simply carry out work such as modifications to the common property without approval from lot owners unless the work falls within basic improvements limits of $23,400.[108] I have found that the works were to proceed as a single project. The cost of the work clearly exceeded the basic improvement limits for the respondent, and it was necessary for the work to be approved by lot owners. I find that in all of the circumstances the requirement that Mrs Knox use an alternative pathway to enter and exit the building was reasonable.

Contention 2 - inability to access the foyer floor area from the lift

• [78] I find that up until January 2020, when a ramp was installed inside the foyer, Mrs Knox was unable to access the foyer floor area from the lift in the building. The term that Mrs Knox be able to traverse the steps inside the foyer was not reasonable. The respondent is responsible for maintaining access to common property including to the building. Access to the foyer from the lift could easily be provided by the installation of a ramp.
• [79] The respondent submits, and I accept that, at all material times Mrs Knox had an alternative pathway available to her, to travel from her unit by lift to the basement, down a basement ramp.[109] I accept the respondent's submission that the requirement that Mrs Knox use the alternative pathway to access the building was not unreasonable in all of the circumstances of this matter.
• [80] As discussed above, I have made findings in Contention 1 about Mr Knox's actions as a respondent committee and sub-committee member that in my view are also relevant to Contention 2 and the question of whether the requirement that Mrs Knox use an alternative pathway to access the foyer was reasonable in all of the circumstances.
• [81] I find that Mrs Knox's issues about her access of the foyer floor area were not brought to the respondent's attention until at the earliest on 29 April 2016.[110] Any purported delay by the respondent in responding to Mrs Knox's access issues such as to install a ramp inside the foyer of the building, is in my view reasonable and justified in all of the circumstances.
• [82] As discussed above, the evidence shows that Mr Knox during the period from 2016, when he became a respondent committee member, to October 2018, when Mr Knox agreed to give the respondent committee relevant information obtained by him about the proposed disability access works to the building, was responsible for and/or contributed to the respondent's delay in completing the disability works including installing a ramp inside the foyer of the building.
• [83] I accept the respondent's submission that any concerns expressed by Mr Webb about the proposed works such as the aesthetics of a wooden ramp being installed inside the foyer, the respondent not having to do anything about disabled access and that, as stated by Mr Webb, 'a foyer ramp would make the place look like a hospital', are Mr Webb's views alone and are not reflective of the other lot owner's attitudes to disability access in the scheme.[111]
• [84] The minutes of meetings held by the respondent committee record certain action to be taken by the committee to investigate options for disability access and Mr Knox's proposed modifications to the building. On 24 June 2016, the minutes record that Mr Knox was to obtain quotations. On 5 August 2016, the respondent committee, of which Mr Knox was a member, unanimously agreed to further investigate options ensuring that safety is paramount, and that aesthetics are considered.[112]
• [85] Mr Knox, as a member of the respondent sub-committee was to obtain information relevant to the disability access issues but did not provide the information to the committee until October 2018. As discussed above, I have found that the items of work that now form part of the contentions before me were to proceed as one project to be approved by lot owners and the costs of all of the items of work exceeded the basic improvement limits.
• [86] On 2 November 2018, the respondent committee planned to spend $90,000 on disability access and the work was approved at an EGM held on 24 April 2019. As discussed above, I accept Mr Burrell's evidence given in the hearing about the reasons for the delay in completing the work after the EGM held on 24 April 2019. I find that any delay in completing the foyer work after the EGM was unexpected. I accept the respondent's submissions that it put five resolutions to lot owners as quickly as it could.[113] In my view having considered all of the evidence before me, the requirement that Mrs Knox use an alternative pathway to enter and exit the building until a ramp was installed inside the foyer of the building in January 2020, was not unreasonable in all of the circumstances.

Contention 3 - inability to access the pool area because the access door is hinged

• [87] I find that up until September 2019 when the door or access to the pool was rectified, Mrs Knox was unable to access the pool area because the access door is hinged with a hydraulic closing mechanism which requires the swiping of a fob and pulling the door towards her, which Mrs Knox is unable to do because she is in a wheelchair. The respondent is responsible for maintaining access to common property including the pool area. Access to the pool area could easily be provided by modifying the access door. The pool door was not modified by the respondent until September 2019.
• [88] In my view, the term that Mrs Knox be able to swipe a fob and pull the door towards her while using a wheelchair, until the pool door was modified, was reasonable in all of the circumstances. Relevantly, I accept the respondent's submission that the requirement that Mrs Knox access the pool area via the hydraulic door was not an unreasonable imposition given, as submitted, 'Mr Knox's frustration of the process'.[114]
• [89] As discussed above, I have made findings in Contention 1 about Mr Knox's actions as a respondent committee and sub-committee member that in my view are relevant to Contention 3 and the question of whether the requirement that Mrs Knox use the hydraulic door to access the pool was reasonable in all of the circumstances.
• [90] I find that Mrs Knox's issues about access of the pool area were brought to the respondent's attention at the earliest on 29 April 2016.[115] Further to that, the issues concerning the pool door were raised by Mrs Knox in the AHRC complaint made on 2 August 2016. In the AHRC complaint, Mrs Knox states the following:

The access door from within the building to the pool opens into the pool area and has to be changed to open the other way for the pool compliance. It is a standard width door and the opening could be easily widened to accommodate a compliant wider door without changing any walls on either side.[116]

• [91] In my view, any purported delay by the respondent in responding to Mrs Knox's access issues such as to modify the access door, is reasonable and justified in all of the circumstances.
• [92] As discussed above, I have made findings in Contention 1 that are relevant to Contention 3. The evidence shows that Mr Knox during the period from 2016, when he became a respondent committee member to October 2018, when Mr Knox agreed to give the respondent committee relevant information obtained by him about the proposed disability access works to the building, was responsible for and/or contributed to the respondent's delay to complete the disability works including the ramp inside the foyer of the building.
• [93] The minutes of meetings held by the respondent committee record certain action to be taken by the committee to investigate options for disability access and Mr Knox's proposed modifications to the building. On 24 June 2016, the minutes record that Mr Knox was to obtain quotations. Mr Knox's evidence given at the hearing was that the two quotations obtained by him related to the, as stated, 'entrance, pool door and ramp'.[117]
• [94] On 5 August 2016, the respondent committee, of which Mr Knox was a member, unanimously agreed to further investigate options ensuring that safety is paramount, and that aesthetics are considered.[118]
• [95] Mr Knox, as a member of the respondent sub-committee was to obtain information relevant to the disability access issues but did not provide the information to the committee until October 2018. As discussed above, I have found that the items of work that now form part of the contentions before me were to proceed as one project to be approved by lot owners and the costs of all of the items of work exceeded the basic improvement limits.
• [96] On 2 November 2018, the respondent committee planned to spend $90,000 on disability access and the work was approved at an EGM held on 24 April 2019. As discussed above, I accept Mr Burrell's evidence given in the hearing about the reasons for the delay in completing the work after the EGM. I find that any delay in completing the modifications to the door after the EGM was unexpected.[119] I accept the respondent's submissions that it put five resolutions to lot owners as quickly as it could.[120] In my view, having considered all of the evidence before me, the requirement that Mrs Knox use the door to access the pool area until September 2019 when the door was modified by the respondent, was not unreasonable in all of the circumstances.

Contention 4 - inability to access the basement carpark because the wheelchair catches the corners of the ramp

• [97] I find that up until October 2020, when the ramp to the basement carpark was modified, Mrs Knox was unable to access the basement carpark because her wheelchair catches the corners when using the ramp. Further to that, Mrs Knox's wheelchair is not powerful enough to ascend the ramp.[121] The respondent is responsible for maintaining access to the common property and building including the basement. Access to the basement area could easily be provided by modifying the ramp. The ramp was not modified by the respondent until October 2020.
• [98] In my view, the term that Mrs Knox be able to use the ramp to access the basement car park before it was modified was, in my view, reasonable in all of the circumstances. Mr Knox's evidence given at the hearing is that since moving into the building Mrs Knox uses the basement ramp three to four times per week.[122] When questioned at the hearing about the ramp, Mr Knox said that Mrs Knox ascends the ramp about three to four times per week and has been doing that since 2015. Mr Knox stated that '[Mrs Knox] gets stuck occasionally on the corners' and he has to realign the wheelchair up the slope.[123]
• [99] I accept the respondent's submission that, as submitted, 'Mr Knox's frustration of the process' was the only reason why the further improvement was not implemented earlier.[124]
• [100] As discussed above, I have made findings in Contention 1 about Mr Knox's actions as a respondent committee and sub-committee member that in my view are relevant to Contention 4 and the question of whether the requirement that Mrs Knox use the basement ramp until it was modified was reasonable in all of the circumstances.
• [101] I find that Mrs Knox's issues about the basement ramp were brought to the respondent's attention at the earliest on 29 April 2016.[125] Further to that, the issues concerning the basement ramp were raised by Mrs Knox in the AHRC complaint made on 2 August 2016. In the AHRC complaint, Mrs Knox states the following:

There is a non-conforming ramp from the lifts to the floor of the carpark. The drive to the carpark is too steep for a manual or power chair.[126]

• [102] Any purported delay by the respondent in responding to Mrs Knox's access issues such as to modify the basement ramp, is reasonable and justified in all of the circumstances.
• [103] As discussed above, the evidence shows that Mr Knox during the period from 2016, when he became a respondent committee member to October 2018, when Mr Knox agreed to give the respondent committee relevant information obtained by him about the proposed disability access works to the building, was responsible for and/or contributed to the respondent's delay to complete the disability works including the ramp inside the foyer of the building.
• [104] The minutes of meetings held by the respondent committee record certain action to be taken by the committee to investigate options for disability access and Mr Knox's proposed modifications to the building. On 24 June 2016, the minutes record that Mr Knox was to obtain quotations. Mr Knox's evidence given at the hearing was that the two quotations obtained by him related to the, as stated, 'entrance, pool door and ramp'.[127]
• [105] On 5 August 2016, the respondent committee, of which Mr Knox was a member, unanimously agreed to further investigate options ensuring that safety is paramount, and that aesthetics are considered.[128]
• [106] Mr Knox, as a member of the respondent sub-committee was to obtain information relevant to the disability access issues but did not provide the information to the committee until October 2018. As discussed above, I have found that the items of work that now form part of the contentions before me were to proceed as one project to be approved by lot owners and the costs of all of the items of work exceeded the basic improvement limits.
• [107] On 2 November 2018, the respondent committee planned to spend $90,000 on disability access and the work was approved at an EGM held on 24 April 2019. As discussed above, I accept Mr Burrell's evidence given in the hearing about the reasons for the delay in completing the work after the EGM. I find that any delay in completing the modifications to the basement ramp after the EGM was unexpected.[129] I accept the respondent's submissions that it put five resolutions to lot owners as quickly as it could.[130] In my view having considered all of the evidence before me, the requirement that Mrs Knox use the basement ramp until October 2020 when it was modified by the respondent, was not unreasonable in all of the circumstances.

Contention 5 - inability to access the swimming pool because there are steps

• [108] I find that Mrs Knox is unable to access the swimming pool because there are steps. In my view, the term that Mrs Knox be able to traverse steps to use the pool is not reasonable. The respondent is responsible for maintaining access to the common property and building including facilities such as the swimming pool.
• [109] As reported in the Access Report, access to the swimming pool could be provided by, amongst other things, installing a sling style swimming pool lift, platform swimming pool lift and a fixed or movable ramp.[131]
• [110] As discussed in Contention 1 above, I find that Mrs Knox's issues about accessing the swimming pool were brought to the respondent's attention at the earliest on 29 April 2016.[132] Further to that, the issues concerning the swimming pool were raised by Mrs Knox in the AHRC complaint made on 2 August 2016. In the AHRC complaint, Mrs Knox states the following:

The pool surroundings were re-tiled and new steps installed but it is still impossible for a disabled person to enter the pool. Consequently, construction of a disabled toilet with a shower is a bit of a waste as a disabled person cannot enter the pool.[133]

• [111] As discussed in Contention 1 above, Mr Knox during the period from 2016, when he became a respondent committee member to October 2018, when Mr Knox agreed to give the respondent committee relevant information obtained by him about the proposed disability access works to the building, was responsible for and/or contributed to the respondent's delay to complete the disability works.
• [112] The minutes of meetings held by the respondent committee record certain action to be taken by the committee to investigate options for disability access and Mr Knox's proposed modifications to the building. On 24 June 2016, the minutes record that Mr Knox was to obtain quotations. Mr Knox's evidence given at the hearing was that the two quotations obtained by him related to the, as stated, 'entrance, pool door and ramp'.[134] Mr Knox accepted when questioned at the hearing that he was not raising any issues concerning the pool hoist at this stage.[135]
• [113] On 5 August 2016, the respondent committee, of which Mr Knox was a member, unanimously agreed to further investigate options ensuring that safety is paramount, and that aesthetics are considered.[136]
• [114] Mr Knox, as a member of the respondent sub-committee was to obtain information relevant to the disability access issues but did not provide the information to the committee until October 2018. As discussed above, I have found that the items of work that now form part of the contentions before me were to proceed as one project to be approved by lot owners and the costs of all of the items of work exceeded the basic improvement limits.
• [115] I accept the respondent's submission that it put five resolutions to lot owners as quickly as it could.[137] On 2 November 2018, the respondent committee planned to spend $90,000 on disability access. The work, including the installation of a pool hoist to the indoor swimming pool was approved by lot owners at an EGM held on 24 April 2019. The spending associated with the installation of the pool hoist was not approved.[138]
• [116] In my view from 24 April 2019, after the lot owners approved the disability access work but not the expenditure for the swimming pool hoist, the requirement that Mrs Knox use the stairs to access the swimming pool was not reasonable in all of the circumstances.
• [117] The evidence shows that the cost of the proposed swimming pool hoist referred to in the motion put to lot owners at the EGM on 24 April 2019 totalled $8,161 inclusive of GST, being an amount that falls within the basic improvements limits.[139] Mr Burrell accepted when questioned at the hearing about the costs of the pool works spent in 2013, that the respondent still has $1,000,000 in its bank account even though it spent $665,000 in 2013.[140] I find that the term imposed as set out in contention 5 is not reasonable in all of the circumstances.

Areas of activity - accommodation (s 83 of the Act) and services (s 46 of the Act)

• [118] The issue before me now is whether any indirect discrimination as found by the Tribunal is permitted under the Act.
• [119] Mrs Knox contends that she has been treated unfavourably in respect to the provision of services in her building as she is denied access to the front entrance of the building or any viable exit to the building, and for years now, since she first became an owner of a unit in the building, she has been denied access to the pool and associated areas until in or about September 2019.[141] Further to that, Mrs Knox says that the discrimination has occurred in limiting any access to any benefit associated with accommodation.[142]
• [120] The respondent accepts that it provides accommodation pursuant to s 83 of the Act and the 'service' of access through common property.[143] At the oral hearing before the Tribunal, Mr Strangman appearing for Mrs Knox submitted that in terms of relying upon s 46(1)(a) of the Act and 'the supplying of goods and services' reliance is placed on findings made in a decision of the former Anti-Discrimination Tribunal in C v A.[144] Mr Strangman submitted that the respondent may, however, draw some distinctions as to the types of body corporate involved in C v A and the present matter.
• [121] At the resumed oral hearing before the Tribunal, Mr Thomas, appearing for the respondent, submitted that the respondent does not agitate the issue identified in the oral hearing at first instance as to the types of body corporate involved in C v A and this matter on the basis that it is accepted there is an activity under s 83 of the Act.
• [122] Section 83 of the Act prohibits discrimination occurring in accommodation. Relevant to the present matter, s 83(b) provides that a person must not discriminate against another person in denying or limiting access to any benefit associated with the accommodation.
• [123] Section 46(1) of the Act provides that a person who supplies goods and services (whether or not for reward or profit) must not discriminate against another person by failing to supply the goods or services; or in the terms on which goods or services are supplied; or in the way in which goods or services are supplied; or by treating the other person unfavourably in any way in connection with the supply of goods and services.[145]
• [124] Relevantly, 'services' includes, amongst other things, access to and use of any place, vehicle or facilities that members of the public are permitted to use; and recreation, including entertainment, sports, tourism and the arts.[146] The term 'supplies' is not defined in the Act.
• [125] Mrs Knox contends that the proper construction of 'services' must include the provision and maintenance of and access to such facilities as the pool area and recreation area within the residential building.[147] Mrs Knox says that the relevant services in the present matter are the provision of access to and from the pool and associated recreational areas located on the common property of the building, or the maintenance of the doorways which are facilities in themselves associated with the pool and associated recreational areas either from the street frontage or Mrs Knox's apartment.[148]
• [126] Mrs Knox contends that the respondent was obliged under the BCCM Act to do all things reasonably necessary for the control, management and administration of the common property of her building. Further to that, Mrs Knox says the recreational facilities including the access way thereto is a part of that common property.[149]
• [127] The respondent submits that it is not solely responsible for improvements to the common property and so could not be said to be purposefully maintaining access ways in a manner that is difficult for the applicant.[150] Further, the respondent says that it has actively supported and encouraged lot owners to vote on properly made motions that support disability access in the way required by the BCCMA and the Module.[151]

• [128] The question of whether the respondent supplies services for the purposes of the Act concerns an issue of statutory construction. Section 46 is to be construed in a way that is consistent with the language and purpose of the Act.[152] The interpretation of a provision which best achieves the purpose of the Act is preferred.[153] The starting point for ascertaining the meaning of a provision is the text, and context and purpose, and its ordinary meaning.[154]
• [129] Some cases which have considered the meaning of 'services' as used in the relevant anti-discrimination legislation, are of assistance in construing s 46 of the Act and the meaning of 'services'.
• [130] In Waters v Public Transport Corporation[155] the High Court interpreted the term 'services' as used in the relevant anti-discrimination legislation, broadly as to include services relating to transportation. In Waters' case the High Court said that if a person is alleged to have imposed a requirement or condition in respect of using services, the services provided must be identified with sufficient precision. In Waters' McHugh J said as follows:[156]

Likewise, if a person is alleged to have imposed on another person a 'requirement or condition' in respect of using services, the services provided must be identified with sufficient precision to enable the Board [decision-maker] to relate the requirement or condition to those services and to determine the issues raised by s 17(5) of the Act. As will appear, the line between what is a "requirement or condition" of using services and the services themselves is often a fine one calling for an exact description of the services provided.[157]

• [131] In C v A[158] the former Anti-Discrimination Tribunal held that the body corporate for leasehold lots governed by the South Bank Corporation Act 1989 (Qld) was a provider of 'services' to the residents of the building. The Tribunal held:

[The body corporate] may be sued in respect of any matter connected with the parcel for which the lessees are jointly liable (and that includes the common property in issue in this application). Even if it were the members of the body corporate and not "A" that was providing the service as defined, "A" would still be the relevant party in suit in this complaint. It appears to me from a consideration of the provisions above that the essential function of the body corporate "A" is to provide services to the resident of the complex including relevantly, maintaining or improving the access ways to facilities on the common property and access to and from individual apartments within the building to those facilities.[159]

• [132] In C v A the Tribunal also found that the exemptions contained in s 46(2) of the Act do not apply to a residential body corporate to the extent that the body corporate was established for community service purposes.[160]
• [133] In Hulena v Owners Corporation Strata Plan 13672[161] the Victorian Civil and Administrative Tribunal, in interpreting anti-discrimination legislation in Victoria, found that the body corporate provided the service of providing accessible entrances and exits from the common property to individual apartments within the complex.[162] Further, the Tribunal was satisfied that the respondent is required to properly maintain the common property and keep it in a state of good and serviceable repair, and that it was required to provide such a service to the applicant who was an owner of a lot in the strata scheme.
• [134] Although, in the present matter the respondent concedes that there is an activity for the purposes of providing accommodation under s 83 of the Act, it is in my view still necessary to consider whether the respondent is providing services for the purposes of s 46 of the Act because Mrs Knox contends that she has been treated unfavourably in the area of the supply of services and in the area of accommodation.
• [135] In my view for the purposes of supplying services under s 46 of the Act, the meaning of the term 'services' when used in anti-discrimination legislation should be given its ordinary and broad meaning.[163] In my view, 'services' more broadly includes access to and use of the pool and associated facilities that form part of the common property.

Tribunal findings - is the discrimination permitted under the Act?

• [136] I have found that for each of the contentions 1, 2, 3 and 4, respectively, the necessary elements of s 11 of the Act have not been met because the term imposed by the respondent was reasonable in all of the circumstances of the matter. Even if I had found that the relevant term as contended in each of the contentions 1,2,3 and 4 was not reasonable, it is open for me to find on the evidence before me that the discrimination was permitted under the Act on the grounds of unjustifiable hardship.
• [137] As discussed in Contention 1 above, I have found that Mr Knox who was at all times representing Mrs Knox and was partly responsible for the respondent's delay in completing the disability works that were to proceed as one project to be approved by lot owners. I have found that the respondent was not in a position to simply carry out the work that included modifications to the common property and building without approval of the lot owners. Further, I have found that the work that was to proceed as one project exceeded the basic improvements limits. It is open for me to find that for each of the contentions 1, 2, 3 and 4, respectively, any term imposed by the respondent was permitted discrimination on the grounds of unjustifiable hardship on the basis that the cost of the work collectively would impose hardship or detriment to the respondent or lot owners.
• [138] Turning to contention 5, I have found that after the EGM held on 24 April 2019, the term that Mrs Knox use steps to access the swimming pool was not reasonable in all of the circumstances. Further to that, I have found that despite the approval of the motion by lot owners to approve the purchase and installation of a pool hoist, the expenditure for the pool hoist was not approved.
• [139] I am not satisfied in all of the circumstances that the term complained of in contention 5 is permitted on the grounds of unjustifiable hardship pursuant to s 5 of the Act. Further to that, I am not satisfied on the evidence before me that the respondent's concerns about the safety and liability of a pool hoist are proven.[164]
• [140] As discussed above, the respondent arranged for a disability assessment to be carried out and after it received the Access Report various committee meetings were held. The respondent put a number of proposed motions to lot owners to address the issue of disability access including access into the swimming pool. Relevant to the motion put to lot owners to address the issue of access into the swimming pool was a motion for the purchase and installation of a swimming pool hoist.
• [141] In my view, it is a matter for the respondent as to how it addresses the issue of access into the swimming pool. The respondent was at all times in a position to inform itself about any perceived risks or concerns in relation to the purchase and installation of a pool hoist prior to putting the motion to lot owners. In my view, if the respondent had concerns about the safety and potential liability associated with the installation of a pool hoist it should have investigated the issue further prior to putting a motion to lot owners for their approval. The evidence shows that the respondent put the motion to lot owners and the lot owners approved the purchase and installation of a pool hoist following the EGM held on 24 April 2019.
• [142] Despite the approval of a motion for the purchase and installation of a pool hoist, Mrs Knox has been unable to use the swimming pool because there are steps leading into the pool that she is unable to traverse by reason of her impairment. The respondent body corporate is responsible for providing access to any benefit associated with accommodation such as the swimming pool. Further, the respondent is also responsible for providing access to services including the facilities that form part of the common property that includes the swimming pool. The respondent may carry out any modifications or work to the common property without approval of lot owners that falls within the basic improvement's limits of $23,400. The respondent may also inform itself in any way about any risks, costs or other concerns associated with a proposed modification to the common property including the swimming pool, that may be relevant to the issue of unjustifiable hardship pursuant to s 5 and any exemption under the Act.
• [143] I find that from 24 April 2019, despite the lot owner's approval of a motion to address the issue of access into the swimming pool for the purchase and installation of a swimming pool hoist, Mrs Knox was unable to use the swimming pool. I find that from 24 April 2019, the term that Mrs Knox traverse steps so that she can use the swimming pool was in all of the circumstances indirect discrimination that was not permitted under the Act.

Final orders and compensation - s 209 of the Act

• [144] Mrs Knox claims compensation in the amount of $50,000.00 on the basis of the prolonged effect of the discrimination and that she has made complaints about disabled access since in or about 2013.[165] Mrs Knox says that she has been unable to use the pool area until in or about September 2019 and she is unable to use the swimming pool. Mrs Knox says that she presently travels with the assistance of her husband to a public swimming pool to do her aquatic exercises in the pool.[166] Further, Mrs Knox contends that the respondent has responded in a manner which attempts to shift blame for the contravention to Mr Knox with respect to the things the respondent says he (Mr Knox) should have done.[167] Mrs Knox claims a compensation order along with a requirement that the respondent apologise to her for its discrimination of her.[168]
• [145] The respondent says that there is an issue of jurisdiction that arises in this matter as to the discretionary final orders that the Tribunal can make, in the event that I find a contravention of the Act. That is, whether the Tribunal can order the respondent to make certain improvements to the common property particularly in the present circumstances where the motion to approve expenditure for the purchase and installation of a pool hoist failed.
• [146] In oral submissions made at the final hearing, Mr Thomas for the respondent submitted that there is an alternative remedy available to Mrs Knox and Mr Knox as unit holders who are affected by the relevant failed motion for the approval of expenditure for the pool hoist.[169] The respondent submits that the matter may be resolved through the dispute resolution process under Chapter 6 of the BCCM Act.[170] Further, Mr Thomas submitted at the oral hearing that the respondent's concerns in relation to the purchase and installation of a pool hoist are legitimate.
• [147] Despite the concerns now contended by the respondent in the present matter about the purchase and installation of a pool hoist, the fact remains that a motion was put to lot owners on 24 April 2019 and the motion was approved. I have found that it is a matter for the respondent as to how it responds to the issue of access into the swimming pool.
• [148] I am disinclined to exercise my discretion under s 209 of the Act to order that the respondent purchase and install a pool hoist. As discussed above, the Access Report identified a number of options to address the issue of access into the swimming pool and the respondent now contends that there are concerns in relation to the purchase and installation of a swimming pool hoist. It is a matter for the respondent as to how it addresses or responds to the issue of access into the swimming pool. Further to that, it is a matter or the respondent as to whether or not further investigation is required to identify how access will be provided to Mrs Knox in a way that is safe to ameliorate any concerns about safety and liability.
• [149] In my view, having considered all of the evidence and the submissions in this matter, it is appropriate to order that the respondent make a private apology to Mrs Knox for its discrimination of her from 24 April 2019. The apology should be communicated to Mrs Knox in writing such that it reflects that from 24 April 2019, Mrs Knox has been subjected to discrimination on the basis that she has been unable to use the swimming pool that forms part of the common property following the approval of a motion put to lot owners for the purchase and installation of a swimming pool hoist. The apology should be made within forty-five days of the date of this order.
• [150] I now turn to the issue of whether any compensatory order should be made. The granting of a remedy is discretionary.[171] Mrs Knox must prove on the balance of probabilities that the respondent's conduct contributed to her loss and damage and that she sustained the relevant loss and damage now claimed.[172]
• [151] In the present matter, Mrs Knox seeks compensatory damages for hurt, humiliation and loss of amenity. I have found a contravention of the Act for Contention 5 only and that the contravention was occurring from 24 April 2019. Further, as discussed above, I have found that Mr Knox who was at all times representing Mrs Knox has contributed to the respondent's delay in addressing the issues of disability access that now forms part of the contentions before me, including Contention 5 that concerns access into the swimming pool.
• [152] Section 209(5) of the Act defines 'damage' in relation to a person and includes the offence, embarrassment, humiliation, and intimidation suffered by the person. In determining an appropriate amount for compensation, I have considered all of the evidence and my findings and the submissions made by Mrs Knox and the respondent.
• [153] There is no evidence before me nor is it contended in the present matter that Mrs Knox has suffered any psychological injury arising from the respondent's conduct. Mrs Knox does attest, however, to the respondent's delay in responding to her contentions and that the respondent has attempted to shift blame to her husband, Mr Knox.[173] I have also considered the respondent's objections raised in written submissions and at the oral hearing before the Tribunal about Mrs Knox's evidence given in support of her contentions and the final orders sought in the event that I find a contravention of the Act. Relevantly, the respondent submits that, amongst other things, some of Mrs Knox's evidence is irrelevant to any alleged contravention of the Act and is, as submitted, evidence to 'garner sympathy', is in some respects 'lay opinion and some are legal submissions' and is 'prejudicial but not probative'.[174]
• [154] In my view relevant matters to be weighed in exercising my broad discretion to award compensatory damages include, amongst other things, the seriousness and duration of any breach of the Act, the applicant's evidence about any inconvenience caused by reason of the respondent's breach and any hurt and humiliation caused to the applicant by the respondent's breach.
• [155] I have considered other cases where a compensatory order was made by the Tribunal including the helpful summary of cases discussed by the Tribunal in Green v State of Queensland, Brooker and Keating.[175] Some of the cases discussed in Green are relevant to the amount of compensation that should be awarded in respect of a complaint referred to the Tribunal under the Act.
• [156] More recently, the Appeal Tribunal considered an award for hurt and humiliation under the Act in Thorne v Toowoomba Regional Council & Tytherleigh.[176] In Thorne, the Appeal Tribunal found that an award of $10,000 for hurt and humiliation based on the Tribunal's findings at first instance was low. In Thorne, the Tribunal at first instance found that the applicant experienced feelings of stress, depression, lack of self-worth and anxiety as a result of the discrimination she suffered and that she attempted suicide linked to the discriminatory conduct and continued to take anti-depressant medication post-termination of her employment.[177] The Appeal Tribunal said that an award of $10,000 where an ongoing psychological injury was accepted is unreasonable or plainly unjust and a failure to properly exercise the discretion at law.[178]
• [157] More recently, in Jackson v Ocean Blue Queensland Pty Ltd & Ors,[179] the Tribunal awarded $10,000 for stress, humiliation and loss of dignity caused by the discrimination. In Jackson, the Tribunal had the benefit of a report from the applicant's treating health professional that referred to the consequences of her emotional, social and spiritual well-being following an unlawful eviction from her accommodation. The Tribunal found that the applicant suffered a degree of stress as a result of the instability she experienced in her accommodation following her eviction.[180]
• [158] In the present matter, I consider that $5,000 is an appropriate award of compensation based on all of the circumstances and after considering more recent cases such as Jackson. In my view, the amount of $5,000 reflects the less serious nature and duration of the discriminatory conduct occurring in the area of accommodation and the supply of services. Relevantly, I found that the discriminatory conduct began following the EGM held on 24 April 2019 after the lot owners approved the motion to purchase and install a pool hoist.
• [159] More importantly, I found that Mr Knox who was at all times representing Mrs Knox, has contributed to any delay by the respondent in addressing the issues of disability access that included putting a motion to lot owners to address the issue of access into the swimming pool.
• [160] I accept Mrs Knox's evidence that despite the approved motion for the purchase and installation of a pool hoist, she has been unable to access the swimming pool because there are steps. I accept Mrs Knox's evidence that she is required to travel to another facility to use a swimming pool for her aquatic exercises. In my view, Mrs Knox should be compensated for the inconvenience and loss of amenity or use of the swimming pool from 24 April 2019. I accept Mrs Knox's evidence that the inability to use the swimming pool in circumstances where lot owners approved the purchase and installation of a pool hoist has caused her hurt and humiliation.
• [161] I order that the respondent pay to Mrs Knox the sum of $5,000 within forty-five (45) days of the date of this order.

1. [1] See the Body Corporate and Community Management Act 1997 ('BCCM Act') and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 ('the Module').

[2] Exhibit 8, T1-24 and see Tribunal's Directions dated 24 February 2020. The further oral hearing was delayed due to COVID-19 restrictions and the Tribunal's relevant practice directions for in-person hearings.

[3] Applicant's closing submissions dated 22 October 2020.

[6] Exhibit 2, p 55, see also exhibit 2, [8], [26] and [28].

[7] Applicant's closing submissions dated 22 October 2020.

[8] Under the Disability Discrimination Act 1992 (Cth).

[13] Applicant's submissions dated 22 October 2020.

[14] Ibid. See also the Referral dated 22 November 2018; Exhibit 8.

[15] Applicant's submissions filed on 29 November 2019, [15].

[16] See also s 11(4) of the Act that defines 'term' as to include condition, requirement or practice, whether or not written.

[17] Respondent's submissions in rely filed 13 December 2019, p 5.

[18] Response filed 14 December 2018, p 5.

[19] Respondent's closing submissions filed 29 October 2020.

[21] Anti-Discrimination Act 1991 (Qld) ('the Act'), s 11(2).

[22] Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 395; Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121.

[23] Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121.

[24] [1991] HCA 49; (1991) 173 CLR 349.

[25] Ibid, 395, per Dawson and Toohey JJ (with whom Deane J agreed).

[29] The Act, ss 205, 206. See also Applicant's submissions dated 22 October 2020, [5]; Respondent's submissions in reply filed 13 December 2019, [12].

[30] See Respondent's closing submissions filed 29 October 2020.

[31] Submissions on behalf of the applicant filed on 29 November 2019, [19]. See also C v A [2005] QADT 14 (8 August 2005), [11].

[32] Applicant's closing submissions dated 22 October 2020, [10].

[34] Respondent's closing submissions filed 29 October 2020, [22]-[23].

[35] Respondent's closing submissions filed 29 October 2020, [23].

[36] See Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121.

[42] Exhibit 2, [4]; Exhibit 8, T1-48 to T1-49.

[43] Exhibit 3, [37] and see attachment "GB17".

[47] Exhibit 3, p 305, item 7.2 and see [52] to [54]. See Exhibit 8, T1-50-T1-51.

[49] Exhibit 2, p 64. See Exhibit 8, T1.-50.

[69] Exhibit 3, p 419 [84]; Exhibit 8, T1-56.

[106] Exhibit 3, [206]; Exhibit 8, T1-80.

[107] Respondent's closing submissions filed 29 October 2020, p 17.

[108] Ibid, p 10. See the Module ss 150(2), 161; the BCCM Act s 159.

[109] Respondent's closing submissions filed 29 October 2020, p 7.

[110] Exhibit 3, p 288. See evidence of Mr Webb given at the hearing, Exhibit 8, T1-101 and evidence of Mr Knox given at the hearing, Exhibit 8, T1-49.

[111] Respondent's closing submissions filed 29 October 2020, p 7.

[112] Respondent's closing submissions filed 29 October 2020, p 7 and see Exhibit 3, p 321.

[113] Respondent's closing submissions filed 29 October 2020, p 17.

[115] Exhibit 3, p 288. See evidence of Mr Webb given at the hearing, Exhibit 8, T1-101 and evidence of Mr Knox given at the hearing, Exhibit 8, T1-49.

[119] Exhibit 3, [206]; Exhibit 8, T1-80.

[120] Respondent's closing submissions filed 29 October 2020, p 17.

[121] Exhibit 2, [10]; Exhibit 8, T1-44-T1-45.

[124] Respondent's closing submissions filed 29 October 2020, p 8.

[125] Exhibit 3, p 288. See evidence of Mr Webb given at the hearing, Exhibit 8, T1-101 and evidence of Mr Knox given at the hearing, Exhibit 8, T1-49.

[129] Exhibit 3, [206]; Exhibit 8, T1-80.

[130] Respondent's closing submissions filed 29 October 2020, p 17.

[132] Exhibit 3, p 288. See evidence of Mr Webb given at the hearing, Exhibit 8, T1-101 and evidence of Mr Knox given at the hearing, Exhibit 8, T1-49.

[136] Exhibit 8. See Exhibit 3, p 321.

[137] Respondent's closing submissions filed 29 October 2020, p 17.

[141] Submissions on behalf of the applicant filed on 29 November 2019, [34].

[142] The Act, s 83. See Applicant's submissions dated 22 October 2020.

[143] Respondent's submissions filed 29 October 2020.

[144] [2005] QADT 14.

[145] The Act, s 46(1). See s 46(2) and subsection (a) and (b) for references to whom s 46(1) does not apply for the purposes of 'supplies' and goods and services.

[147] Submissions on behalf of the applicant filed on 29 November 2019, [25].

[150] Respondent's submissions in reply filed 13 December 2019.

[152] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] to [71].

[153] Acts Interpretation Act 1954 (Qld), s 14A.

[154] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 410.

[155] [1991] HCA 49; [1991] 173 CLR 349.

[158] [2005] QADT 14.

[161] [2009] NSWADT 119.

[163] See Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 and Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 at [149] citing IW v City of Perth [1997] HCA 30; [1997] 191 CLR 1 per Dawson and Gaudron JJ at [23].

[164] Respondent's submissions filed 29 October 2020, p 4-5.

[165] Applicant's submissions filed 22 October 2020.

[167] Ibid. See Applicant's submissions filed 22 October 2020.

[169] Respondent's submissions filed 22 October 2020, p 20.

[171] See State of Victoria v Turner (2009) VR 110, [171].

[172] See Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402.

[174] Respondent's objections to affidavit of Mrs Knox sworn 11 March 2020 filed 5 November 2020.

[176] [2017] QCATA 128.

[179] [2020] QCAT 23.