Lyttle v Everglades Country Club Limited

NCAT Administrative and Equal Opportunity|2021-01-27

Introduction

The applicant, Mr Lyttle, is a member of the Everglades Country Club Ltd, Woy Woy, the respondent (hereinafter referred to as the Club).
The Club requires members who use their own motorised golf cart on the golf course to pay an annual cart usage fee at the time of their membership renewal, currently in the amount of $220.
The previous waiver of this fee for holders of disability permits was discontinued in 2012.
Mr Lyttle, due to medical disabilities, alleges he requires a cart when playing golf.
On 1 July 2020, he filed a complaint against the Club with the President of the Anti-Discrimination Board under the Anti-Discrimination Act 1977 (NSW) (ADA) alleging disability discrimination in the area of registered clubs.
On 27 October 2020, the complaint was referred to this Tribunal for a public hearing under s 93C(b) of the ADA.

Relevant Legislation

The relevant sections of the ADA are as follows: 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires - … disability means - (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability - (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 49B What constitutes discrimination on the ground of disability (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator - (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (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. 49C What constitutes unjustifiable hardship In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including - (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and (b) the effect of the disability of a person concerned, and (c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship. 49O Registered clubs (1) It is unlawful for a registered club to discriminate against a person who is not a member of the registered club on the ground of disability - (a) by refusing or failing to accept the person's application for membership, or (b) in the terms on which it is prepared to admit the person to membership. (2) It is unlawful for a registered club to discriminate against a person who is a member of the registered club on the ground of disability - (a) by denying the person access, or limiting the person's access, to any benefit provided by the registered club, or (b) by depriving the person of membership or varying the terms of the person's membership, or (c) by subjecting the person to any other detriment. (3) Nothing in subsection (1) or (2) applies to or in respect of a registered club if the principal object of the registered club is to provide benefits only for persons who have a particular disability specified in the principal object. (4) In determining whether the principal object of a registered club is as referred to in subsection (3), regard is to be had to - (a) the essential character of the registered club, and (b) the extent to which the affairs of the registered club are so conducted that the persons primarily enjoying the benefits of membership are persons who have the particular disability specified in the principal object, and (c) any other relevant circumstance. (5) 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 registered club.

The Evidence

Mr Lyttle joined the Club approximately ten years ago. He previously worked for the Defence Force and is a TPI (total and permanent incapacitated) pension recipient from the Department of Veteran Affairs arising from his work in the Defence Force.
The Club requires members who use their own motorised golf cart on the golf course to pay a dedicated annual usage fee with their yearly membership renewal.
In 2012 there was a waiver system. Members who could demonstrate that they had mobility issues based upon their medical condition, requiring them to use a motorised golf cart to enjoy the golf course, did not have to pay the fee for bringing their own cart onto the golf course. That waiver system ceased in May 2012 following direction of the Club.
On 1 June 2020, the applicant emailed the Club, asking for a reimbursement of the additional annual fee of $220 he was required to pay to bring his own golf cart onto the golf course. He claimed he had medical disabilities that made it extremely difficult for him to utilise effectively the golf course without using a golf cart and therefore have the same access to the golf course as a physically able member.
The applicant explained that he cannot walk more than a few hundred metres or so without a major increase in pain levels in his back and both knees which means he cannot play and use the golf course without the assistance of his cart. He stated that he is going in for more neurosurgery on his back but is holding off any surgery on his knees as the next step is knee replacements, which he is putting off for as long as possible.
He stated that he had undergone multiple knee reconstructions arising from his work in the Defence Force and he had also undergone a fusion operation to his lower back, also due to his Defence work. Overall, he states he suffers from chronic pain for most of the time due to these conditions and as such takes strong medications.
Mr Lyttle relied upon a Doctor's statement or certificate to support his claim for a waiver of the cart fees from Dr Stephen Chung. It stated: "Mark has bilateral degeneration of knees due to past injuries and surgeries and is currently trying to reduce the immediate need for knee replacement surgery with less invasive methods currently available to him. Mark also has degenerative condition of the lower back which has resulted in laminectomies and spinal fusion surgeries as recent as September 2020. Mark uses his golf buggy to enable him to continue to move around the golf course to play golf, which contributes to his mental health and well-being. Other medical conditions such as osteoarthritic conditions of his knees and his deteriorated back condition, have no effect on his ability to control a motor vehicle or his golf cart but do affect his ability to walk longer distance, more than a few hundred metres without significant increase in pain. These conditions require permanent ongoing treatment and rehabilitation to maintain current stability and no significant improvement would be expected."
Mr Lyttle explained the fee structure of the Club for golf members as follows:

Annual membership fee of $750 per annum (gold member) or $450 fee per annum (silver member)
Annual cart fee for bringing one's own motorised golf cart on to the golf course of $220 in addition to the chosen membership fee.
Cost per round of golf is $16 for gold members and $16 for the first twelve games for silver members. Thereafter, silver members have to pay approximately double or $32 per round of golf from their 13th game onwards.

Mr Lyttle decided two years ago, for financial reasons, to reduce his gold membership to a silver membership. He stated that the cart fees and daily green fees were getting too expensive for him. For the same reason he also reduced his games of golf from three to four times per week to once per week on average.
He stated that some other clubs charge for the use of private motorised golf carts but others , including the Springs Country Club, do not charge extra costs.
Mr Seabrook gave evidence for the respondent. He is the General Manager of the Club and has been in that role for 19 months. He explained that the minutes of the Club indicated that in 2012 the Club decided, on the basis of legal advice from the Club's solicitor, to abandon the waiver system of the fee for private carts usage on medical grounds. Whilst he was not the General Manager at the time, he assumed the legal advice was based upon s 10(1)(i) of the Registered Clubs Act 1976 (NSW).
That section provides as follows: (i) A member of the club, whether or not he or she is a member of the governing body, or of any committee, of the club, shall not be entitled, under the rules of the club or otherwise, to derive, directly or indirectly, any profit, benefit or advantage from the club that is not offered equally to every full member of the club.
By letter dated 30 June 2020, the General Manager of the Club, on behalf of the Board of Directors, declined to reimburse Mr Lyttle the annual cart fee because of financial reasons. The General Manager stated that it was the concern of the Club that there is a direct cost to provide cart pathways and carry out ongoing maintenance of cart paths and the wider golf course as a result of wear and tear caused by carts. The cart usage fee, the General Manager explained, is applied as a cost recovery measure to ensure that the Club can maintain cart pathways and cart accessibility on the course.
By letter dated 25 August 2020, the Club responded to the applicant's complaint to Anti-Discrimination NSW. Its response, in summary, was as follows:

The Club is a relatively small community club which maintains an 18-hole golf course, two lawn bowling greens and a club house.
It is not a 'wealthy' club and deliberately budgets to keep its members' and visitors' fees to a minimum in order to look after them and the local community rather than trade at a greater profit.
The Club stated that as at 31 July 2020 the Club has a total membership base of 12,836 which includes 1,021 full golfing members - 837 male and 184 lady members, 109 male and 89 lady bowls members, 38 junior golf members and 11,493 social members.
There are 32 members who have registered to use their personal motorised golf carts and pay an annual fee. Otherwise, members can use the Club's motorised carts at the rate of $18 for 9 holes and $30 for 18 holes. Visitors pay $28 for 9 holes and $43 for 18 holes.
The Club estimates cart usage costs, based on the accounts for the 2018-19 year, consisted of total operating costs of $36,280 and total annual capital costs of $20,000, giving a combined total costs of $56,280. The breakdown of these costs was set out as follows:
The average daily cart usage was estimated at 24, made up of 18 hires of the Club's carts and 6 private carts supplied by members themselves giving an annual use of 8,632. The costs per cart use, based upon the estimated total costs in the 2018-19 year, was estimated at $6.52 and assuming an average use of 52 times per year this yields an annual cost of $339.
The Club's concern is to recoup the direct cost to provide cart pathways and carry out ongoing maintenance of cart paths and the wider golf course as a result of wear and tear caused by carts.
The Board believes that the majority of motorised cart users are of mature age and would have limitations in their capacity to walk the course. If the cart fee is waived for the applicant, then the Club would need to be consistent and waive all cart usages fees for all members who have restricted mobility. This would result in the Club being unable to maintain cart pathways which would restrict future accessibility for cart owners unless the other option of increasing membership fees is utilised.

The estimated cart usage costs came from the Green Keeper. The GPS management system involved the installation of a GPS system on to the Club's golf carts which enabled the Club to disable the carts when entering into prohibited areas on or around the greens. Mr Seabrook explained that this system was not imposed upon member's own carts.
Accordingly, it does not seem to us to be fair or correct to apply the costs of installation of this GPS management system to private carts. Including the $10,000 annual costs for the implementation of the GPS management system exaggerates the cost to the Club of permitting members to use their own private carts on the course.
Mr Seabrook explained in respect of the different membership categories that bowls members pay $85 per year and social members pay $5 per year. Junior golf membership, younger than 17 years old, do not incur any fee. There is an intermediate golf membership category for persons aged 18 to 21 at $150 per annum. There is also an intermediate golf membership category for ages 22 to 28 at $400 per annum.
The Tribunal was provided with annual reports and accounts of the Club for the financial years ending 2011, 2012, 2018, 2019 and 2020. Revenue comes from poker machines, the golf course and food and beverages.
For the financial year ending 2011 the poker machines, c3,183,511lubmart, bar, and golf trading accounts were profitable. Overall net profitability of the Club was $145,089 Profits from golf trading was $13,173 and total income received from golf trading was $1,052,105. Overall gross trading profits were $2,050,130 or $3,183,511 when other categories of income are included. Total comprehensive income was $8,388,619.
For the year ending 2012 the poker machines, clubmart, bar, and golf trading accounts were profitable. Overall net profitability of the Club was $165,967, an increase of $20,878 on the prior year. Total comprehensive income was $8,937,439. Profits from golf trading was $181,943 and total income received from golf trading was $1,317,126. On a comparative basis, the 2012 accounts revealed for 2011 profits from golf trading was $260,363 and total income received from golf trading was $1,316,524.
For the financial year ending 2018 the poker machines, clubmart, bar and catering accounts were profitable. Overall comprehensive income of the Club was a loss of $137,096. Total revenue was $9,805,318. Golf trading showed a loss of $1,210 and total revenue of $1,440,267. Poker machine trading showed a profit of $2,450,675 and total revenue of $4,010,901. Catering trading showed a profit of $50,732 on total income of $1,511,894. Bar trading showed a profit of $486,326 on revenue of $1,926,289.
For the financial year ending 2019 the poker machines, clubmart, bar, golf and catering accounts were profitable. The operating loss before the abnormal profit on lost assets relating to the fire and asset revaluation adjustments was $272,359. Otherwise, the profit for the year was $132,957. Total revenue was $10,328,881. Golf trading showed a profit of $42,486 and total revenue of $1,472,931. Poker machine trading showed a profit $1,907,230 and total revenue of $3,840,659. Catering trading showed a total revenue of $1,573,367. Bar trading showed a total revenue of $2,068,568.

Consideration

The complaint is one of indirect discrimination.
The statute provides that a person discriminates against another person if such person ('the perpetrator') requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have the disability of the complainant in question, 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 is not able to comply: see s 49B(1)(b) of the ADA. This is commonly referred to as indirect discrimination.
As a claim of indirect discrimination, the applicant must establish: 1. That he suffers from a disability; 2. That the Club imposed a requirement or condition; 3. That he was unable to comply with that requirement or condition; 4. That a substantially higher proportion of people, without that disability, are able or would be able to comply with that condition; and 5. That in all the circumstances the condition is not reasonable: see, for example, Conroy v Nelson Bay Golf Club [2015] NSWCATAD 243 at [10].

Does the applicant suffer from a disability?

The term 'disability' is broadly defined under s 4 of the ADA. It includes partial loss of a person's bodily functions or the malfunction of a part of a person's body.
We accept Mr Lyttle's evidence that he suffers from the malfunction of a part of his body, being his back and knees, or the partial loss of his bodily functions, being the movement of his back and knees, which prevents him from being able to walk over the Club's golf course on foot without the benefit of a motorised cart. This condition is supported by the certificate or report prepared by Dr Chung.
Mr Seabrook did not put any submission to us, challenging the proposition that Mr Lyttle suffers from a disability.
We are satisfied that Mr Lyttle suffers from a disability.

Did the Club impose a 'requirement or condition'?

The phrase "requirement or condition" is not defined by the ADA. The alleged "requirement or condition" must be identified with some degree of precision: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at [185]; Waters v Public Transport Corporation (1991) 173 CLR 349 at [393], [406]-[407]; Catholic Education Office v Clark (2004) 138 FCR 121 at [143]. However, "considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain": Walker v State of Victoria [2011] FCA 258 at [194]. The words "requirement or condition" should be construed broadly to cover any form of qualification or prerequisite although the actual requirement or condition should be formulated precisely: see Waters at [393], [406-7]. In the context of providing goods or services, a person should be regarded as imposing a requirement or condition when he intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods and services are to be acquired, used or enjoyed: see Waters at [360], [407].
The authorities have consistently stated that the words "requirement or condition" should not be given a narrow or technical construction: State of NSW v Amery (2006) 230 CLR 174 at [195]. Rather, they had to be interpreted liberally so as to promote the objects of the Act: Banovic at [185], [195-7], [393-4], [406-7]; Amery at [64]. Set out in the long title to the ADA, the objects are "to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons". The offending requirement or condition need not be explicit: Banovic at [185]. It may implicitly arise as a practical reality in the circumstances of the case. In the area of employment, a requirement or condition is not limited to the explicit terms and conditions of the contract of employment but may also "encompass … all those demands and requirements, and benefits or concessions in the actual employment which the employee must comply with or can accept as the case may be": Alders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at [55].
At the hearing, Mr Lyttle accepted a formulation of the requirement or condition as being the requirement that in order to use the golf course upon payment of the relevant membership and green fees and no additional fee, he must complete the course on foot and without the aid of a motorised cart: see, for example, Conroy v Nelson Bay Golf Club [2015] NSWCATAD 243 at [10].
In light of the above principles, we are satisfied that such a 'requirement' comes within the meaning of "requirement or condition" under s 49B(1)(b) of the ADA. Accordingly, we are satisfied that the Club did impose such a 'requirement or condition'. Further, the imposition of such a 'requirement or condition' amounts to limiting Mr Lyttle's access to a benefit provided by the Club, being use of the golf course upon payment of the relevant membership and green fees and no additional fee, within the meaning of s 49O(2)(a) of the ADA. Mr Lyttle's access to this benefit is limited by the condition that he complete the course on foot and without the aid of a motorised cart.
Further, the imposition of this 'requirement or condition' amounts to subjecting Mr Lyttle to 'any other detriment' within the meaning of s 49O(2)(c) of the ADA.

Was the applicant unable to comply with the requirement or condition?

We are satisfied, based upon the evidence presented as to Mr Lyttle's disability, that the applicant was and is unable to comply with this requirement or condition.

Is there a substantially higher proportion of people, without the applicant's disability, who are able or would be able to comply with that requirement or condition?

In order to make out indirect discrimination, the complainant needs to show that a substantially higher proportion of people who do not have the complainant's disability, comply or are able to comply with the alleged requirement or condition. To undertake that comparison, it is necessary to identify the relevant "base group" to whom the requirement is directed: Bonella & Ors v Wollongong City Council [2001] NSWADT 194 at [77]. The ADA does not prescribe the composition of that group which will vary according to the circumstances of the case. The identified base group or groups must however reveal the significance, if any, of the relevant characteristic to compliance with the impugned requirement: Banovic at [179]; Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at [42].
The Tribunal must first identify the 'core' or 'base' group: see Bonella and Conroy v Nelson Bay Golf Club [2015] NSWCATAD 243 at [20]. In the circumstances of this case, an appropriate base group is the golf members of the Club or, alternatively, the general population.
Secondly, Mr Lyttle needs to show that in either case a substantially higher proportion of people who do not have Mr Lyttle's disability, comply or are able to comply with the alleged requirement or condition compared to those within that base group who suffer from such a disability and comply, or are able to comply, with the condition.
Of critical importance here is the identification or specification of the particular disability in question. Section 49B(4) of the ADA states that: "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."
In our view, the particular disability or the disability that is substantially the same as the particular disability of Mr Lyttle can be described as the malfunction of a part of the body or the partial loss of bodily functions, which prevents the person from being able to walk over the Club's golf course on foot, includingwithout significant pain, without the benefit of a motorised cart.
In our opinion, the description of a person's disability or a disability that is substantially the same as the person's disability is best made by reference to the actual malfunction of the body or loss of use of bodily functions, rather than by reference to the person's medical diagnosis, such as osteoarthritis or multiple sclerosis. Such medical conditions cover a wide variety of symptoms such that it cannot be said that all with the condition have substantially the same 'disability'.
On the other hand, persons with different medical conditions can have substantially the same disability, such as an impaired ability to walk or see or hear. In the case before us, the relevant disability is the inability to readily walk over the Club's golf course on foot without the benefit of the motorised cart.
Adopting this description of the disability or the disability that is substantially the same as Mr Lyttle's disability has the result that the number of people who suffer from such a disability and comply, or are able to comply, with the requirement or condition is nil. Further, it also follows that the proportion of people who do not have Mr Lyttle's disability who can comply or are able to comply with the requirement or condition is 100%. In other words, all those who do not have Mr Lyttle's disability or a disability which is substantially the same, can enjoy the use of the golf course without a motorised cart.
This conclusion is supported by the High Court decision of Waters. In that case Mr Waters and nine other disabled persons lodged complaints under s 44 of the Equal Opportunity Act 1984 (Vict.), alleging that the Public Transport Corporation had discriminated against them in contravention of the Act. Relevantly, the acts of discrimination included the introduction by the corporation of "scratch tickets" for use on public transport and the removal of conductors from some trams.
The disabilities of all complainants made it impossible or at least exceedingly difficult to use scratch tickets. Also, some of the complainants could not travel on trams which did not have conductors. The individual complainants suffered from a range of disabilities, including cerebral palsy and visual impairment.
The majority held that both of these circumstances amounted to the imposition of a "requirement or condition" within the meaning of s 17(5) of the Act. In addition, the Court accepted that it was open to the Board to find that these requirements or conditions were ones with which a substantially higher proportion of unimpaired persons are, or would be, able to comply with: per Brennan J at [14]; per Dawson and Toohey JJ at [26]. This conclusion becomes self-evident when the relevant disability is identified in terms of loss of use of a part of the body or a malfunction of a part of a body.
In such circumstances, there is no need to identify with precision the specific number of golf members or the general population, being the potential "base groups", who have such a disability or who do not have such a disability. However, this may be required in different circumstances. For example, if an employer has a policy that people need to be 180cm or taller to do a certain job, which could indirectly discriminate against women and some ethnic groups (sex or race discrimination). There may need to be some evidence as to the ability of persons of the relevant status to comply with the requirement compared with other persons.
We note that in Conroy v Nelson Bay Golf Club the Tribunal, on similar facts to the current case, expressed the view that to establish that a substantially higher proportion of people without the complainant's disability are able to comply with the identified requirement or condition was not an easy task. It expressed the view that this is an extremely complicated exercise: [19]-[21]. The Tribunal stated that it could not be satisfied of this requirement. It stated that the complainant would need to identify those within the base group who suffer from a disability and comply, or are able to comply with the condition and to further identify the members of the base group who comply, or are able to comply and who do not have a disability and to then compare those proportions.
In our view, for the reasons given, the finding can be made that a substantially higher proportion of people without Mr Lyttle's disability are able or would be able to comply with the condition identified without the complainant having to identify with precision the number within the "core" or "base group" who suffer from the disability and those who do not suffer from the disability. This is because self-evidently whatever the numbers are, it will be the case that a substantially higher proportion of people without the complainant's disability are able to comply with the relevant requirement or condition.
Accordingly, we are satisfied that a substantially higher proportion of people, without the complainant's disability, are able or would be able to comply with the requirement or condition identified above.

Is the requirement or condition reasonable?

The onus of proving that a requirement or condition was not reasonable lies on the complainant: Waters; Vines v Djordjevitch (1955) 91 CLR 512 at [519]-[520]. Reasonableness is to be assessed by considering all the circumstances of the case, including the financial circumstances of, and an impact on, the respondent: Waters per Brennan J at [16]; per Deane J at [4]; per Dawson and Toohey JJ at [28].
The Club's principal argument was that the annual cart fee was reasonable given the costs incurred by the Club in having to maintain the course arising from the carts impact on the golf course. It was put that the cart fee was reasonable based on the "user pays" approach. The Club's concern is to recoup the direct cost to provide cart pathways and carry out ongoing maintenance of cart paths and the wider golf course as a result of wear and tear caused by carts.
In our view, for the reasons which follow, the "user pays" principle when applied to persons with a disability does not make the requirement "reasonable". Mason and Gaudron JJ in Waters at [32] stated that the meaning of "reasonable" must be ascertained by reference to the notions of "discrimination" and by reference to the scope and purpose of the Act. The object of the ADA is to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons.
The notion of "discrimination" and "equality of opportunity" for persons of different status, including those suffering from a disability, are not precise concepts. Nevertheless, certain principles can be discerned. It does not necessarily mean equality of treatment, or identical treatment. Rather, the notion looks to encompass equality of opportunity.
In the South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 6, the dissenting opinion of Judge Tanaka has come to be recognized as a leading statement of the notion of "discrimination" in international law. Historically, the principle was derived from the Christian idea of the equality of all persons before God: at p 304. According to Sir Hersch Lauterpacht, the idea of equality of all persons is derived from the fact that human beings, "by the common possession of reason" distinguish themselves "from other living beings": Sir Hersch Lauterpacht, An International Bill of the Rights of Man, 1945, p 116 quoted by Judge Tanaka at p 304.
It received legislative formulation however, at the end of the eighteenth century first by the Declaration of Independence and by the Bills of Rights of some American states, next by the Declaration of the French Revolution, and then over the course of the nineteenth and twentieth centuries an "equality clause" became one of the common elements of the constitutions of modern European and other countries: at p 305. Judge Tanaka found that the legal norm of non-discrimination or equality exists in international law. Its essential content was described as follows at p 305: "What is the content of this principle? The principle is that what is equal is to be treated equally and what is different is to be treated differently, namely proportionately to the factual difference. This is what was indicated by Aristotle as justitia commutativa and justitia distributiva. …To treat different matters equally in a mechanical way would be as unjust as to treat equal matters differently."
This principle has particular relevance in the case of persons suffering from a disability. To treat persons suffering from a disability equally with unimpaired persons in a mechanical manner can be unjust. The imposition of an annual cart fee has a disproportionate impact on persons with the complainant's disability. Those who are able to walk the golf course unaided have the choice whether or not to use a motorised golf cart or not. They can choose to walk the golf course and thereby avoid the additional fee. On the other hand, those with a relevant disability do not have that choice and are obliged to pay the fee in order to enjoy the golf course.
To fail to recognise this factual difference is contrary to the principle of non-discrimination. This principle informs the concept of indirect discrimination under the ADA. A 'facially neural' requirement can amount to unlawful discrimination if the requirement is unjust or unreasonable. It is only if there is a waiver of the annual motorised cart fee for persons with a relevant disability that such persons will have the "equal opportunity" to enjoy the golf course along with able bodied golf members.
Today, the main statement of the international legal norm in respect of persons with disabilities can be found in the Convention on the Rights of Persons with Disabilities, New York, 13 December 2006, United Nations, Treaty Series, Vol. 2515, p 3. Australia ratified this Convention on 17 July 2008. Amongst its general principles are full and effective participation and inclusion in society, equality of opportunity and accessibility: Article 3. In order to promote equality and eliminate discrimination, States Parties are required to "take all appropriate steps to ensure that reasonable accommodation is provided" to persons with disabilities: article 5(3).
Further, with the view to enabling persons with disabilities to participate on an equal basis with others in recreational, leisure and sporting activities, States Parties are to take "appropriate measures" to ensure that persons with disabilities have access to services from those involved in the organisation of leisure and sporting activities and to encourage the participation, to the fullest extent possible, of persons with disabilities in mainstream sporting activities at all levels: Article 30(5)(a) and (e).
The above provisions inform the concept and meaning of "reasonable". To ensure "full and effective participation and inclusion in society, equality of opportunity and accessibility" for persons with disabilities, will frequently require such persons to have access to devices and mechanical aids. By s 49B(3A) of the ADA it is unlawful to discriminate on the ground that a person 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.
For example, persons who have some visual impairment may need to wear glasses or contact lenses. Provided they have access to these their "disability" is essentially immaterial. Such persons are likely not to recognise themselves as having a "disability" let alone being a "disabled" person. Nevertheless, given the broad definition of "disability" any person with a visual impairment comes within this definition.
This highlights that with access to appropriate devices and an appropriately "accessible" environment more and more persons can enjoy full and effective participation and inclusion in society so that their so-called "disability" also becomes largely immaterial. The key issue is often society's response to the widespread impairments people suffer from rather than the significance of any medical diagnosis or description.
In order to enable persons with a disability to have equal access to goods or services, including access to the built environment, a number of measures have been taken by both the public and private sector which have now become ubiquitous in Australian society. These include the introduction of such measures as ramps into buildings, accessible toilets, accessible public transport with ramps for wheelchairs, and lifts as an alternative to stairs in places such as railway stations. These measures allow persons with a disability to be able to participate and be included in the ordinary social and economic activities of Australia when otherwise this would not be possible.
We note in this regard that the charging of fees or the application of the "user pays" principle is not generally adopted in Australia in respect of measures that are implemented to assist persons with a disability. If a fee is charged for the measure based upon the cost of the measure - such as charging for use of a ramp or for the wear and tear a wheelchair may cause at work - this would run counter to the object of seeking to provide persons with disabilities an equal opportunity to enjoy the ordinary economic and social life Australia has to offer compared with unimpaired Australians.
It is a mark of a humane society that it seeks to accommodate the needs of persons with disabilities without imposing upon such persons the costs of such measures. This allows persons with disabilities to participate on an equal footing with able body persons in the activities which society has to offer. This would include leisure activities such as the playing of golf.
The concept of "reasonableness" under the ADA involves attempting to strike a fair balance between the needs and interests of the alleged discriminator and respect for the interests of persons with disabilities in being able to participate in society on an equal footing with unimpaired persons.
In our opinion, in order to promote the object of the ADA in affording equal opportunities to people with disabilities, some "reasonable" level of adjustment is required to be made by providers of services, such as registered clubs, to put such persons on an equal footing with those who are not impaired in one way or another in their bodily or mental functions. The "user pays" principle would in effect impose on persons with a disability an additional financial burden not equally imposed on able bodied persons as they can avoid the fee if they choose. In our view, the mere adoption of a "user pays" principle for persons with disabilities will not make the requirement reasonable.
The Tribunal has to strike the appropriate balance between the two interests by considering the impact of the impugned "requirement or condition" on the complainant compared with the impact on the respondent if the impugned requirement or condition was prohibited or modified.
The Club did not expressly rely upon the defence set out in s 49O(5) that the relevant 'benefit can not without unjustifiable hardship be so provided by the registered club'. However, given that the Club was not legally represented we will consider whether or not the defence of unjustifiable hardship has been made out. We note that pursuant to s 49C what constitutes unjustifiable hardship involves taking into account all 'relevant circumstances of the particular case' 'including - 1. The nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and 2. the effect of the disability of a person concerned, and 3. the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
We note the defence of unjustifiable hardship is not available in the circumstances of 'subjecting the person to any other detriment' under s 49O(2)(c) of the ADA. Nevertheless, there is a clear overlap between the concepts of 'unjustifiable hardship' and 'reasonableness' as provided for in s49B(1)(b) of the ADA where it refers to 'a requirement which is not reasonable having regard to the circumstances of the case'. We shall consider first the nature of the benefit or detriment likely to accrue or be suffered by Mr Lyttle and the effect of the disability on Mr Lyttle.
So far as the complainant, Mr Lyttle, is concerned, the impact of the impugned requirement or condition or the nature of the detriment likely to accrue or be suffered by Mr Lyttle, is that it imposes the obligation on him to walk the golf course to avoid paying $220 per year. We note and accept his evidence that this has curtailed his use of the golf course from three or four times a week to once a week in order to save on costs. It is clear that playing golf is an important part of Mr Lyttle's life as a disability pensioner from the Defence Force.
The effect of the disability of Mr Lyttle is that he is unable to walk the golf course on foot and accordingly is obliged to pay $220 per year.
Turning to the circumstances, including the financial circumstances, of the Club and in particular the estimated costs of permitting motorised golf carts on the golf course, we have regard to the following.
First, the Club did have a waiver system of the annual cart fee for persons with a disability up until financial year 2012. In that year and the previous year, the Club was able to operate such a waiver scheme and manage the Club and the golf course' trading at a significant profit. Further, the reason for abandoning this scheme was based upon legal advice not financial considerations. It was accepted by the Club that in fact s 10(1) of the Registered Clubs Act did not and does not prevent the Club from allowing persons with a relevant disability to be excused from paying the annual cart fee, particularly in light of the requirements of the ADA.
Second, the Club in its membership fees does not always strictly implement a user pays policy. This is the case for Junior and Intermediate-age golfers. Based upon age, the Club affords to younger golfers, irrespective of their means, the benefit of no annual fee or reduced fees. It can be presumed that such members nevertheless contribute to the wear and tear of the golf course.
If the Club is concerned to take account generally of the interests of younger persons, irrespective of their means, it would be "reasonable" for the Club also to be mindful of the special interests of persons with a disability and elderly persons who require a motorised golf cart.
We next consider the estimated costs to the Club if it reintroduced a waiver of the annual cart fee for those with a relevant disability. The evidence is that 32 members use their private golf carts on the course. There was evidence that most of these persons have some disability or frailty due to their age which requires them to have a motorised golf cart to enjoy the course.
If one was to assume that 30 of the 32 members currently using their own carts on the course fall into this category, the cost of a waiver system as previously operated would be $6,600 per annum being $220 times 30 members. This is a relatively small amount of lost revenue compared with the significant sums received from golf members generally and from the Club's other services such as through its poker machines and operation of the Club house.
We note in the financial year ending 2019 golf trading showed a profit of $42,486 on total revenue of $1,472,931. In the financial year ending 2020 golf trading showed a profit of $96,304 and total revenue of $1,514,634. This was in a year where the Club suffered an operating loss of $608,577 which Mr Seabrook said was due to COVID-19 restrictions.
Foregoing $6,600 per annum represents a proportionally small additional financial imposition on the Club's golf members and, possibly, the total membership of the Club in order to allow impaired golfers access to the course on an equal footing with able bodied golfers.
Further, the total costs of $6,600 does not take it into account the lost revenue from such golfers using the course less frequently. It was the evidence of Mr Lyttle that absent the annual golf cart fee he would be using the golf course more frequently and the Club house more frequently, thereby contributing additional revenue to the Club.
In conclusion, we find that the imposition of the relevant requirement or condition as identified above, was not reasonable in all the circumstances. We also find that currently the Club cannot demonstrate that it will suffer 'unjustifiable hardship' if it were to reintroduce the waiver system in respect of the annual charge for the use of motorised carts on the grounds of a member's disability.
In conclusion, we are satisfied that the complainant is substantiated.

Orders

Mr Lyttle sought the reintroduction of a waiver system of the annual cart fee on the grounds of a golf member's disability and for compensation for all past cart fees paid by him.
This Financial Year the annual cart fee was $220 per annum and in the year 2013 it was $180 per annum. We do not know the annual fees charged in the intervening years.
Prior to the hearing it was not clearly articulated that Mr Lyttle was seeking reimbursement of the annual fees he had paid for use of his own golf cart beyond the current year. He did not apply to amend the complaint. We note that the Club focused its attention and evidence in its response to Mr Lyttle's complaint on its recent costs incurred due to the use of motorised carts on the golf course. We also note Mr Lyttle made a similar claim in July 2019 but the Club was advised that the complaint had been terminated under s 92C of the ADA.
For the above reasons, we have come to the view that the fairest course is to limit Mr Lyttle's claim to reimbursement to the current year and the amount of $220.
Accordingly, we have decided to award the complainant $220 for the loss or damage suffered by reason of the Club's breach of the ADA.
Nextly, we note that s 108(2)(b) of the ADA empowers the Tribunal to make an order enjoining the respondent from continuing or repeating conduct rendered unlawful by this Act.
We have decided to order that from hereon the Club be restrained from charging an annual fee for the usage of private motorised golf carts on the golf course in the case of members who can demonstrate that they suffer from a disability which requires them to have the benefit of a motorised golf cart.
This order will be subject to the case of any significant adverse change in the relevant financial circumstances of the Club.

Disposition

The Tribunal: 1. Finds the complaint substantiated in whole. 2. Orders the respondent to pay the complainant damages in the amount of $220. 3. Subject to any significant adverse change of financial circumstances of the respondent, the respondent is restrained from charging an annual fee for the right of members to use their own motorised cart on the golf course in the case of members who can demonstrate they require the use of such golf cart due to their disabilities.

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: 08 March 2021

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