Body Corporate and Community Management Act 1997 (Qld) (BCCM Act), sections 227(1)(b) and 229(3)(a)

Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module)

REASONABLENESS - where the body corporate did not consider obligations under anti-discrimination laws or where the body corporate purportedly contravened anti-discrimination laws - whether the body corporate acted unreasonably

Act, s 94(2)

I hereby direct Australian Sunrise Citrus Pty Ltd (Trustee) ('applicant') to provide the committee of the Body Corporate for Portside Noosa Waters CTS 16592 ('body corporate') with any relevant additional information with respect to its proposal made by way of motion 6 of Annual General Meeting dated 18 December 2023 ('Motion 6') including but not limited to any relevant local council approval, within one month of the date of this decision or such further period of time as agreed between the applicant and the said committee acting reasonably.

1. Within six months of the date of this decision but not until the applicant has had an opportunity to avail the Direction above, that the body corporate must reconsider the proposal made by the applicant by way of the said Motion 6, and in doing so must consider any additional information provided by the applicant pursuant to the Direction above.
2. Regis Bezencon, the occupier of Lot 1 at Portside Noosa Waters CTS 16592 ('scheme'), be permitted to park in the common property area located in the south-eastern corner of the scheme, until the body corporate can reconsider the applicant's proposal and any further information pursuant to Order 1 above.
3. This application is otherwise dismissed.

• [1] This dispute is about the use of an area of common property as a parking space for an occupier living with a disability. He requires a large vehicle for travel that cannot be accommodated within the garage of his lot.
• [2] The body corporate denied requests for the said occupier to park his vehicle in this parking space at two general meetings in 2023. Such denial has been challenged in this adjudication application primarily on the grounds of reasonableness under the BCCM Act (section 94(2)), and discrimination under the Disability Discrimination Act 1992 (Cth).

• [3] The scheme is regulated under the BCCM Act and Accommodation Module. It comprises 20 lots and common property, contained within five lake-front buildings at Noosaville. Each building has two levels.
• [4] The body corporate manager ('BCM') has been appointed to act in place of the committee under section 120 of the BCCM Act and section 125 of the Accommodation Module.
• [5] The applicant, a corporate entity, is the owner of Lot 1. This lot comprises an 84m2 area (inclusive of a garage) located on Level A of Building 1, and a 60m2 area located on Level B of the same building. An area of land on the eastern and north-eastern side of the lot has been formally allocated to it for exclusive use as a courtyard and entry area.
• [6] The occupier of Lot 1, Regis Bezencon ('Mr Bezencon'), has been named as an affected person under this adjudication application.
• [7] The respondent is the body corporate.
• [8] In May 2023, the applicant sent the respondent body corporate a series of emails seeking committee approval, as required by By-law 2, for Mr Bezencon to temporarily park his vehicle on the common property area adjacent to Lot 1 ('Corner Space')[1] on the grounds that he is over 85 years of age and lives with a disability which prevents him from walking any distance over 50 metres.
• [9] The applicant provided a contemporaneous medical certificate to the respondent body corporate which confirms Mr Bezencon's disability and indicates that he must refrain from walking to the greatest practicable extent. The applicant specified that any such approval would only pertain to the vehicle operated by Mr Bezencon, which has a disability certificate displayed appropriately. The applicant also provided the respondent body corporate with a plan marking and identifying the Corner Space.
• [10] The applicant further explained to the respondent body corporate that Mr Bezencon was unable to access the garage within Lot 1 because of protruding rockery at a narrow area of the common property driveway leading to the garage. Importantly, it adds that even if Mr Bezencon's vehicle could access the garage in the absence of this rockery, he would not have sufficient room to open the vehicle door for entry and exit given the nature of his disability.
• [11] The applicant states that the next closest parking spot is 160 metres away, adding that there are no parking spaces at the scheme that are reserved for persons with a disability.
• [12] On 25 May 2023, the body corporate manager (acting on behalf of the committee of the respondent body corporate) suggested that the applicant table a motion which would allow lot owners[2] to consider the matter for approval. The body corporate manager states that since the applicant's request affects other lot owners' rights to use common property, he believed the matter to be appropriate for determination at the upcoming general meeting.
• [13] The respondent body corporate at extraordinary general meeting ('EGM') dated 31 August 2023 considered a motion ('Motion 3') submitted by the body corporate manager on behalf of the committee, which proposed authorising Mr Bezencon to park in the Corner Space. Motion 3 was defeated with seven votes in favour, nine against and three abstentions.
• [14] Subsequently, on 23 November 2023, the applicant submitted the following motion ('Motion 6') for consideration at the next general meeting:

That the body corporate under the discretion allowed them, grant authority to the certified disabled Mr Regis Bezencon, to park his vehicle at the termination of the driveway marked on the attached plan for as long as he holds a license, and subject to moving the vehicle in the event of need for any maintenance. Any cleaning of any stains is unit 1 responsibility.

• [15] The explanatory note to the said motion states as follows:

The reason behind this request is that Regis, 85, is disabled, and is needing access to his unit. He hold a disability certificate and having been advised by his doctor that he should avoid walking, as per the medical letter attached. The driveway to street parking is over 160 metres, far beyond the 50 metres his doctor limits. The garage cannot be accessed due to the rockery protruding, limiting his access to the garage. The parking does not affect anyone as it is at the end of the double driveway, not obstructing any thoroughfare or exit, and leaves access for any trades or others to park alongside his car. Unit 2, the only unit that could be slightly affected is supportive of the request.

• [16] The applicant states that the medical certificate confirming Mr Bezencon's condition and the plan marking the Corner Space were attached to the motion.
• [17] Motion 6 was considered at EGM dated 18 December 2023, and was defeated with six votes in favour and six against.
• [18] The applicant states that voting against Motion 6 reflects a discriminatory attitude towards Mr Bezencon based on his disability. It adds that the respondent body corporate's refusal to allow an occupier living with a disability to temporarily utilise an otherwise unused and out-of-the-way part of common property is entirely unreasonable and discriminatory.
• [19] The applicant cites sections 5 and 6 of the Disability Discrimination Act 1992 (Cth) ('DDA 1992') and states that the obligations under the same are an extension of the obligations of the respondent body corporate to act reasonably under section 94(2) of the BCCM Act. It adds that the respondent body corporate must be held to a greater standard given the special circumstances surrounding the needs of an occupier living with a disability, requiring additional considerations. The applicant states that special circumstances apply as a result of Mr Bezencon's disability similar to those which were considered in River Place Apartments[3].
• [20] The respondent body corporate suggests that owners' primary grounds for defeating Motion 3 and Motion 6 are that the applicant has not indicated that the use of the Corner Space by Mr Bezencon in the manner proposed is compliant with the scheme's planning permit and applicable council standards for parking facilities. In this regard, it refers to specific provisions in the Noosa Plan 2020 pertaining to parking bays and manoeuvring areas.
• [21] In these circumstances, the applicant seeks the following orders:

(a) An order declaring that the respondent body corporate has acted unreasonably in denying Mr Bezencon approval to park his vehicle in the Corner Space; and

(b) An order that Motion 6 of the EGM dated 18 December 2023 be deemed as having passed.

• [22] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the BCCM Act or the Community Management Statement ('CMS')[4] or about the exercise of rights or powers or performance of duties under the BCCM Act or the CMS.[5] Further, an order may require a person to act, or prohibit a person from acting in a manner stated.[6] An order may also contain ancillary and consequential provisions the adjudicator considers necessary or appropriate.[7]
• [23] I am satisfied that I have jurisdiction to determine the dispute in question by virtue of sections 276(1)(a) and (b) of the BCCM Act (read together with section 227(1)(b) of the BCCM Act).
• [24] However, the applicant raises questions regarding the contravention of commonwealth anti-discrimination laws. I will describe my jurisdictional limitations in this regard in the analysis below.

• [25] This adjudication application was lodged on 18 March 2024. The applicant subsequently amended the application until 29 April 2024, upon the Commissioner's request for further information under section 240 of the BCCM Act.
• [26] On 14 May 2024, the Commissioner provided a copy of the adjudication application and invited the committee on behalf of the respondent body corporate, all owners and Mr Bezencon (the affected person) to make submissions.
• [27] Submissions were made by Mr Bezencon, the respondent body corporate, and the co-owners of Lot 2.
• [28] On 22 July 2024, the applicant having obtained copies of the said submissions, replied to the same.
• [29] On 27 September 2024, the Commissioner referred the dispute for department adjudication.
• [30] I have investigated the dispute pursuant to section 271 of the BCCM Act which included reviewing the adjudication application, submissions and reply.

• [31] The respondent body corporate submits that the garage in Lot 1 has not been used to park a vehicle in years, and is instead being used for storage purposes. It adds that Mr Bezencon can indeed park his vehicle in his garage and access Lot 1.
• [32] The respondent body corporate states that the original planning permit for the scheme (i.e., the Town Planning Consent Permit dated 21 September 1994) requires at least 30 off-street parking spaces which are to be provided with 'a sealed pavement and designed, drained, constructed and maintained in accordance with the Planning Scheme, Council's Policies and to the reasonable satisfaction of the Shire Engineer'.
• [33] It adds that the Planning Scheme, i.e., the Noosa Plan 2020, states that 'parking bays, manoeuvring areas, queuing areas, loading, set down, pickup areas and driveways are designed in accordance with the Australian Standards for Parking Facilities'[8]; and that 'vehicle manoeuvring areas are provided in accordance with the current Australian Standards for Parking Facilities so vehicles enter and leave the site in a forward gear'[9].
• [34] The respondent body corporate states that it must ensure compliance with its planning permit and the current Noosa Plan 2020. It states that the applicant has not indicated whether its proposal for Mr Bezencon to park in the Corner Space is compliant with applicable standards.
• [35] The respondent body corporate states that Mr Bezencon's circumstances differ to those in River Place Apartments[10] in that he continues to be able to park his vehicle in the garage of Lot 1. It adds that Mr Bezencon's circumstances are no different to a lot owner being unable to access their exclusive use parking space given the use of a large or oversized vehicle.
• [36] The respondent body corporate states that its decision on Motion 6 was not unreasonable or discriminatory, adding that it may be exposed to liability if Mr Bezencon's parking as requested leads to damage or injury to persons lawfully using the common property.
• [37] Mr Bezencon submits that lot owners have over the past 20 years consistently parked their vehicles in the Corner Space, without body corporate approval. He adds that he has over fifty photographs in his possession demonstrating its habitual use.
• [38] The co-owners of Lot 2 (the immediate neighbouring lot to Lot 1) are supportive of Motion 6. They however emphasize the importance of the conditions included thereunder.

• [39] The applicant states that the Corner Space is situated at the furthest distance from the entrance point of the dual driveway close to Gibson Road, adding that it is essentially a 'dead-end'. Accordingly, it states that parking in this Corner Space would only obstruct access to Lot 1 and no others, with there being no increased risk of any accidents or injuries occurring on the common property. The applicant states that lot owners, occupiers and visitors have been parking in this Corner Space with no issue or incident to date.
• [40] The applicant states that council standards require vehicles to enter and leave the scheme in forward-gear. It adds that the driveway is not circular, and that vehicles cannot make a 180-degree turn. The applicant states that accordingly, vehicles must turn using the garage driveways or visitor parking spaces to the leave the scheme in forward-gear. The applicant emphasises that parking Mr Bezencon's vehicle at a dead-end common property area (i.e., the Corner Space) would not adversely impact the current turning and manoeuvring process.
• [41] The applicant claims that the respondent body corporate is therefore acting unreasonably by refusing a legitimate request by an occupier living with a disability to park in a dead-end area of common property whilst turning a blind eye towards others parking on common property without formal body corporate approval.
• [42] The applicant reiterates that parking in the garage within Lot 1 is not possible given the width of the garage is 2.7 metres and the width of Mr Bezencon's vehicle (a BMW X5 SUV) with a single open door is 3.15 metres wide. It adds that Mr Bezencon requires a relatively larger vehicle on account of his stiff leg. It states that Mr Bezencon, unlike a fully able-bodied person is also unable to access the vehicle with only a partially open door. It adds that the rockery in the common property area leading to the garage juts out thereby reducing the space required to safely turn Mr Bezencon's large vehicle into the garage (to only 5.5 metres).
• [43] The applicant states that the respondent body corporate seeks to rely on the decisions in River Place Apartments[11] by assuming that the vehicle used by Mr Bezencon is an 'ordinary vehicle' capable of fitting in the garage of Lot 1, and ignoring the fact that the vehicle used by him to accommodate his disability is a larger one.

• [44] Whilst I have not detailed every element of the adjudication application, submissions and reply in this decision, all such material have been duly considered.
• [45] The broader questions before me for determination are firstly, whether the respondent body corporate acted unreasonably in denying Mr Bezencon approval to park his vehicle in the Corner Space; and secondly whether the circumstances warrant an order deeming Motion 6 at EGM dated 18 December 2023 to have passed.

• [46] There is a general requirement under section 94 of the BCCM Act that a body corporate must act reasonably in among other things, enforcing its CMS (including the by-laws), carrying out its functions under the BCCM Act and CMS and making or not making any related decisions.[12]
• [47] Similarly, under section 100(5) of the BCCM Act, the committee is required to act reasonably in making a decision. (Further, section 100(1) of the BCCM Act states that a decision of the committee is a decision of the body corporate.)
• [48] In the event this does not occur, an adjudicator may intervene to make an order that is just and equitable to resolve a dispute.
• [49] In addition to the duty to act reasonably, bodies corporate and their committees are subject to mandatory general law duties such as:

(a) The duty to act in good faith; and

(b) The duty to make fully considered, rational and reasonable decisions that are not conflicted, arbitrary, patently absurd or plainly unjust.[13]

• [50] A party aggrieved by a body corporate's decision or action often cites this concept of reasonableness in their argument that the decision or action was unfair to them. Whilst, unsurprisingly the BCCM Act does not provide any guidance as to what is considered reasonable or unreasonable, it has been the subject of considerable discussion over the past decade or so.
• [51] The question of whether a body corporate has acted unreasonably is not a straightforward one. What is reasonable is a question of fact, based on a consideration of all relevant matters in the circumstances of the particular case.
• [52] There is no onus on a body corporate to satisfy an adjudicator that it acted reasonably.[14] Rather, it is for the person alleging that the conduct or decision was unreasonable to prove the same.
• [53] The test of reasonableness was considered by the Queensland Civil and Administrative Tribunal ('QCAT') in Body Corporate for Beaches Surfers Paradise v Backshall[15] ('Beaches') which held as follows:

(a) 'Reasonable action is evidence-based and rational';[16]

(b) 'A finding that a decision or action in issue is "not irrational, absurd or ridiculous" does not necessarily mean it is a reasonable one'.[17]

• [54] QCAT also held in Beaches that legal unreasonableness encompasses decision-making errors such as irrelevance, adding that decision-making in practice requires that 'all relevant matters [be] taken into consideration and irrelevant ones left out'.[18] It held:

A decision will offend the relevancy doctrine where it was made without considering something that the decision maker was bound by the law to take account of or, conversely, acting on a factor that had no logical role to play in resolving the issues.[19]

• [55] Furthermore, Nettle J held in the Australian High Court decision of Ainsworth v Albrecht[20] that the standard of reasonableness is objective and 'it is to be applied taking into account all relevant factors including those that were extant but which the parties may not have identified or appreciated at the time'.[21]
• [56] A legally reasonable decision is not a uniquely right one. It involves matters of degree about which contrary - even opposite - conclusions can be reasonably reached on the same body of evidence by different lines of reasoning or by reference to other determinants without either being demonstrably right or manifestly wrong'.[22] Accordingly, it is not sufficient to find that the body corporate could have made a better or more reasonable decision, or that a different body corporate could reasonably have come to a different decision.[23] Further, it is not the adjudicator's role to substitute his/her own view as to what would be the preferable decision by the body corporate.[24]
• [57] A legally unreasonable decision made by a body corporate can be overridden by an adjudicator under section 276 of the BCCM Act (often read together with a relevant item under Schedule 5 of the BCCM Act), which states in part that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about the exercise of rights or powers, or the performance of duties under the Act or CMS. This has been contemplated under the BCCM Act, specifically items 17, 24 and 25 of Schedule 5.

(b) Reasonableness under the BCCM Act & anti-discrimination

• [58] Various commonwealth and state laws have been enacted to promote equal opportunity for all and to eliminate unfair discrimination including but not limited to the Age Discrimination Act 2004 (Cth), DDA 1992 (Cth), and the Anti-Discrimination Act 1991 (Qld) (collectively 'Anti-Discrimination Statutes'). Given the arguments made by the applicant citing the DDA 1992, I will limit my analysis to the same as well as the Anti-Discrimination Act 1991 (Qld) ('ADA 1991'). This is because these two statutes contain similar provisions, and the case law for one often references the other. These statutes generally operate to the extent that they impact a person's ability to participate in civic life, and are applicable in identified areas of activity such as the provision of goods and services, activities in connection with accommodation, the provision of employment and education etc.
• [59] At first glance, bodies corporate do not appear to be captured under these statutes. No express provision has been made for them in either of these statutes. However, there is a growing body of precedent that states that these statutes are indeed applicable to bodies corporate on the basis that they provide 'services', and on the basis of their activities in connection with 'accommodation'. This is not surprising, given bodies corporate are vested with considerable power over the lives of its members and of occupiers, through the regulation of the use of scheme land, body corporate assets, and services and amenities provided by itself; as well as through the administration of common property and body corporate assets. Accordingly, it is not unforeseeable that such power can sometimes be exercised in a discriminatory fashion.
• [60] The BCCM Act in itself provides for basic safeguards against discrimination and for equal treatment by a body corporate. For example, section 180(5) of the BCCM Act states that a by-law must not discriminate between types of occupiers. Further, section 180(7) of the BCCM Act states that a by-law must not be 'oppressive or unreasonable'. More importantly, in relation to the conduct of or decision-making by a body corporate, section 94(2) of the BCCM Act requires the same to be reasonable. In similar vein, section 100(5) of the BCCM Act requires committees of bodies corporate to make reasonable decisions.
• [61] In my view, the concept of reasonableness under the BCCM Act is broad enough to encapsulate basic principles of anti-discrimination and equality. For example, if a committee enforces a by-law - that proscribes parking by occupiers in the visitor parking spaces - against the occupier of a particular lot but refrains from enforcing the same against others who regularly contravene the by-law, an adjudicator may determine that the body corporate has acted unreasonably by enforcing the by-law in a selective or discriminatory manner.[25]
• [62] Importantly, the concept of reasonableness also encompasses relevant questions regarding onus. For example, if a lot owner tables a motion at a general meeting proposing to make an improvement to common property, the onus to provide the members of the body corporate with the information necessary to make a decision on that motion generally lies with the lot owner and not on the body corporate.

(c) Anti-Discrimination Statutes & jurisdictional limitations

• [63] I must make clear that I do not have the jurisdiction to determine whether the respondent body corporate has contravened the provisions of any Anti-Discrimination Statutes in having defeated Motion 6 in this case. Such questions can be determined by a court or tribunal or other forum empowered to do so under those statutes.
• [64] In this case, it is my understanding that neither the applicant nor Mr Bezencon have lodged a complaint or claim before the appropriate forum for a decision as to whether any provisions of an Anti-Discrimination Statute have been contravened. Accordingly, I do not have the benefit of such a decision when determining whether the respondent body corporate acted unreasonably under the BCCM Act.
• [65] However, I do have the jurisdiction to determine whether the specific circumstances in which the purported contravention of an Anti-Discrimination Statute occurred, constitute or carry relevant factors to be considered by the respondent body corporate when making a decision.
• [66] Further, I also have the jurisdiction to determine whether the respondent body corporate acted unreasonably contravening section 94(2) of the Act by failing to consider or comply with any relevant obligations under the said Anti-Discrimination Statutes.[26] This necessarily entails some examination on my part of the Anti-Discrimination Statutes as it applies to bodies corporate.
• [67] Determining reasonableness of conduct under the Act based on non-compliance with the provisions of the Anti-Discrimination Statutes is not a straightforward exercise and is often not practically possible. This is because for want of jurisdiction I cannot determine whether any such provisions have been contravened, save where:

(a) A court or tribunal or authority of competent jurisdiction has determined that the respondent body corporate has contravened such a provision; or

(b) There is ample well-developed case law covering the precise circumstances currently in dispute, whereupon there would be little to no determination on my part given it can be considered 'settled law'.

• [68] However, determining reasonableness of conduct under the Act based on a failure to consider the provisions of Anti-Discrimination Statutes where they are relevant is a relatively simpler exercise and largely involves evidentiary examination.
• [69] There is then the question of whether any such unreasonable conduct under the Act warrants invalidating a decision made consequentially by the body corporate, and perhaps also whether it warrants an adjudicator supplanting the same with a different decision.
• [70] I will consider these questions in my analysis further below. However, before I do that, I will briefly examine how adjudicators have historically dealt with disputes involving anti-discrimination considerations.

(d) Approaches adopted by adjudicators when hearing disputes with purported contraventions of Anti-Discrimination Statutes

• [71] Previous adjudicators orders indicate general consensus that adjudicators do not have jurisdiction to determine whether a provision of an Anti-Discrimination Statute has been contravened. Accordingly, adjudicators have consistently held that complaints of this kind must be raised at a forum empowered to hear them in accordance with the relevant Anti-Discrimination Statute.
• [72] Consequently, adjudicators have adopted a variety of approaches when determining disputes involving a potential or purported contravention of an Anti-Discrimination Statute (based on the circumstances of each matter), as described below:

(a) The adjudicator may not examine any arguments citing a contravention of a provision of an Anti-Discrimination Statute due to the aforesaid jurisdictional limitations, as was the case in Erindale[27], Sunny Waters[28], The Village at West End[29] and Jansea[30];

(b) The adjudicator may not consider arguments citing a contravention of a provision of an Anti-Discrimination Statute for want of such jurisdiction as well as other reasons. For e.g.:

(i) In Rivage Royal[31], the applicants challenged the reasonableness of a body corporate decision to deny permission to make an improvement to their balcony, on the grounds of (among other things) a contravention of an Anti-Discrimination Statute. The scheme's by-laws required the applicants to furnish council approval for the proposed improvement, which the applicants had not done. The adjudicator held that in the absence of the requisite council approval, the question of the validity of the body corporate's decision or conduct was not one open for determination[32];

(ii) In Yuruga[33], the adjudicator rejected these arguments on the basis that it had 'no relevance to [the] issue';

(c) The adjudicator may, whilst declaring the said jurisdictional limitations, nevertheless consider the arguments made by a party citing a contravention of a provision of an Anti-Discrimination Statute, on the basis of some nexus between (the circumstances of) those contraventions and a contravention of the BCCM Act. For e.g.:

(i) In Casa Del Rey[34], the adjudicator held that the Anti-Discrimination Statute requires bodies corporate to take into consideration a person's disability when making relevant decisions, and that accordingly, it imposes no different a requirement than that imposed by section 94(2) of the BCCM Act. Similarly, in Southside Villas[35], the adjudicator held that bodies corporate should not ignore the needs of people with disabilities at the scheme and considered its relationship with sections 94(2) and 100(5) of the BCCM Act. More recently, in Village on the Brook[36], the adjudicator held that the appropriate question for him to determine in that case was not whether the body corporate breached a provision of an Anti-Discrimination Statute, but whether the 'circumstances allegedly giving rise to a breach of an [Anti-Discrimination Statute] were a relevant factor for the body corporate and whether they unreasonably failed to consider them'[37];

(ii) In Tank Tower[38], the adjudicator considered the arguments made by the applicant citing broadly an Anti-Discrimination Statute and the Building Code of Australia. She held that 'if the [body corporate] has a legal obligation (for example, under anti-discrimination or building regulations, or the order of a relevant authority) to install an alternative type of door then the issue would be one of maintenance of the common property'[39] under the provisions of the BCCM Act and Regulation Module.

(d) Where the circumstances of a case make it plain that a certain action would result in the contravention of a provision of an Anti-Discrimination Statute, adjudicators have made obiter statements to that effect even in the absence of the parties raising any arguments on the matter. This was the case in Peninsula Apartments[40] and Surfers Tropique[41].

(e) The Queensland Anti-Discrimination Act 1991 and its application

• [73] I will consider whether the provisions of the ADA 1991 may be applicable to the respondent body corporate in the circumstances of this dispute, and if there are any aspects of the same that can be considered settled law.
• [74] The ADA 1991 was enacted because among other things, Parliament is supportive of the Commonwealth's ratification of international human rights instruments such as the International Covenant on Civil and Political Rights and the Declaration on the Rights of Disabled Persons.[42] A further reason for enactment is that Parliament considers that the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.[43]
• [75] One of the purposes of the ADA 1991 is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas[44]. To this end, the ADA 1991 prohibits discrimination that is:

(a) Direct or indirect discrimination;[45]

(b) On the basis of specific attributes set out in the ADA 1991 which include impairment (disability) and age;[46]

(c) In a specific area of activity set out in the ADA 1991 which includes the supply of goods and services[47] and the provision of accommodation[48].

• [76] An 'impairment' in relation to a person is defined under the ADA 1991. This definition includes 'the total or partial loss of the person's bodily functions'.[49]
• [77] 'Services' (in relation to the activity area of goods and services) has been defined under the ADA 1991 as follows:

(a) access to and use of any place, vehicle or facilities that members of the public are permitted to use; and

(b) banking and the supply of loans, finance or credit guarantees; and

(c) recreation, including entertainment, sports, tourism and the arts; and

(d) the supply of refreshments; and

(e) services connected with transport and travel; and

(f) services of any profession, trade or business; and

(g) services provided by a public or local government; and

(h) the provision of scholarships, prizes or awards;

• [78] Direct discrimination occurs if a person treats or proposes to treat, a person with a specific attribute (such as age or impairment) less favourably than another person without the attribute would be or is treated in circumstances that are the same or not materially different.[50]
• [79] Indirect discrimination occurs if a person imposes or proposes to impose a term[51] with which a person with a specific attribute (such as age or impairment) does not or is not able to comply; and with which a higher proportion of people without the attribute comply or are able to comply; and that is not reasonable.[52] Whether a term is 'reasonable' depends on all the relevant circumstances of the case including but not limited to the consequences of failure to comply with the term; the cost of alternative terms; and the financial circumstances of the person who imposes or proposes to impose the term.[53]
• [80] A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person in (among other things) 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.[54]
• [81] Further, a person must not discriminate against another person in (among other things) the terms on which accommodation is offered, renewed or extended; in denying or limiting access to any benefit associated with the accommodation; or by treating the other person unfavourably in any way in connection with the accommodation.[55] Furthermore, a person must not discriminate by refusing to allow another person with an impairment to alter accommodation to meet the other person's special needs if the alteration is at the expense of the other person; the alteration does not require an alteration to the premises of another occupier; the action required to restore the accommodation to its previous condition is reasonably practicable; and the other person undertakes to restore the accommodation to its previous condition before leaving it and it is reasonably likely that the other person will do so.[56]
• [82] There are however several general exemptions that apply for discrimination in the area of goods of services and the area of accommodation.[57] There are also four specific exemptions for discrimination in the area of goods and services[58] and six specific exemptions for discrimination in the area of accommodation[59].
• [83] Upon the application of one such specific exemption which is applicable in both such areas, it is not unlawful for a person to discriminate on the basis of impairment against another person if they would require special services or facilities which would impose unjustifiable hardship on the person supplying the goods and services.[60]
• [84] Whether the supply of such special services or facilities would impose 'unjustifiable hardship' depends on the circumstances of each case, including for e.g., the nature of the special services or facilities; the cost of supplying the same; the number of people who would benefit or be disadvantaged from the same; the financial circumstances of the person supplying the goods or services; the disruption that supplying the special services or facilities may cause; and the nature of any benefit or detriment to all people concerned.[61]
• [85] It is worth noting that at a relevant hearing under the ADA 1991, the onus or proving that an exemption applies rests with the person relying on the exemption.
• [86] I will consider below two notable cases in which Queensland tribunals applied the ADA 1991.

(i) C v A [2005] QADT 14

• [87] In this case ('C v A'), the complainant was diagnosed with a condition affecting the middle layer of her spinal cord, resulting in an inability to walk, blurred vision and other impairments. She was unable to travel between her apartment and the street frontage of her building, or to the pool area and other areas of the ground floor of the building, without assistance from other persons. Her inability to travel independently was due to her inability to open the doors between these areas.
• [88] The complainant claimed that she was indirectly discriminated by the body corporate in the areas of goods and services and accommodation, in the absence of the application of any exemptions.
• [89] Member Savage SC held as follows in relation to the definition of 'services' concerning the activity area of goods and services:

"Services" as a term is defined in the Dictionary Schedule to the [ADA 1991], and "includes" "recreation".

The definition is not a happy one. Despite its inelegance, in my view the proper construction of "services" must include the provision and maintenance of (and access to) such facilities as the pool area (a recreational area) within the residential building for the reasons below.

Access is only expressly mentioned at subparagraph (a) of the definition of services (and then only in relation to access to public facilities). Nevertheless[,] it seems plain that one would fail to supply a service by failing to provide access to those premises upon which any relevant service is offered or by failing to maintain the access way as a "facility" associated with a recreation service in itself. As there seems no particular authority to suggest a more restrictive meaning I adopt that construction. Neither side sought to suggest that the provision of access or an access way was not a service.

The complainant submitted the relevant service was "the ability for the complainant to be able to enter and exit the building in which her apartment is located and the pool area and associated area within it". That is not "a service" as defined though that articulation of the service is not materially different to that identified above...

The relevant service is the provision of access to and from the pool and associated recreational area located on the common property of [the body corporate] - or the maintenance of the doorways as a facility in themselves associated with the pool and associated recreational areas - either from the street frontage or [the complainant's] apartment.

• [90] Accordingly, the body corporate was held to have indirectly discriminated against the complainant in the activity area of goods and services, with no applicable specific exemption.
• [91] The Queensland Anti-Discrimination Tribunal ('QADT') also held that the body corporate treated the complainant unfavourably in connection with the supply of accommodation by failing to maintain or alter the access ways by provision of a proximity device so that she might be able to enjoy the recreational facilities; and by refusing her to alter the doorways to meet her special requirements at her own expense.
• [92] It was further found that there was no unjustifiable hardship in the provision of a proximity device.
• [93] Accordingly, the complainant was awarded compensation in the sum of $25,000.00.

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

• [94] In this case ('Knox'), Alison Knox, an occupier had partial loss of her bodily function and relied on the assistance of a wheelchair for her mobility. She was unable to independently access parts of the building and common property where she lived such that she required the assistance of a ramp because she was unable to traverse the steps. Mrs Knox was unable to independently open a hydraulic door that required her to swipe an access card to allow her to enter the swimming pool area. Further, she would not have been able to use the swimming pool unless a pool hoist was purchased and installed.
• [95] Mrs Knox claimed that the respondent body corporate was in breach of the ADA 1991 on the basis of her partial loss of bodily functions. She raised five matters of alleged indirect discrimination relating to her inability to access the entry of 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 and its surrounds.
• [96] The body corporate claimed the exemption of unjustifiable hardship in the areas of goods and services and accommodation applied.
• [97] Relevantly, Member Browne stated in relation to the onus of proof (section 11 of the ADA 1991) as follows:

The complainant or applicant must prove on the balance of probabilities that the respondent breached the [ADA 1991]. The respondent [body corporate] 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.

In the present matter, it is non-contentious that Mrs Knox has the 'attribute' of being impaired for the purposed of the [ADA 1991]. 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.

Although there is no evidence before me about other unit owners, I am satisfied for the purposes of the [ADA 1991] that the comparator is 'the residents of and other entrants to the residential building'.

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. 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 and/or entrants to the residential building without the attribute such as the reliance on a wheelchair could easily comply.

• [98] QCAT held that the terms that Mrs Knox be able to traverse the steps at the front of the building, and access the foyer area from the lift in the building, was prima facie clearly not reasonable.[62] However, in this case, it was found that Mrs Knox was presented with reasonable alternative routes to traverse the steps at the front of the building and access the foyer from the lift by the body corporate.
• [99] It also held that the requirement that Mrs Knox use the hydraulic door to access the pool area, and use the ramp to access the basement car park for a certain period of time until the door was modified by the body corporate was not unreasonable. QCAT took into account a variety of circumstances, including the date the body corporate was notified of Mrs Knox's inability to independently open the hydraulic door; that Mrs Knox's spouse (Mr Knox) was a member of the sub-committee set up by the body corporate to address issues pertaining to disability access at the scheme; that Mr Knox had agreed to provide the committee with relevant information about proposed disability access works to the scheme; the delay that was caused by Mr Knox to the access works; and Mr Knox's admitted 'frustration of the process' etc.
• [100] QCAT then held that the term that Mrs Knox be able to traverse steps to use the pool, was not reasonable. It noted that the body corporate had not approved the proposed spending associated with the installation of a pool hoist.
• [101] Member Browne further stated:

The question of whether the respondent [body corporate] supplies services for the purposes of the [ADA 1991] 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 [ADA 1991]. The interpretation of a provision which best achieves the purpose of the [ADA 1991] is preferred. The starting point for ascertaining the meaning of a provision is the text, and context and purpose, and its ordinary meaning.

In Hulena v Owners Corporation Strata Plan 13672 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.

In my view for the purposes of supplying services under s 46 of the [ADA 1991], the meaning of the term 'services' when used in anti-discrimination legislation should be given its ordinary and broad meaning. In my view, 'services' more broadly includes access to and use of the pool and associated facilities that form part of the common property.

• [102] Accordingly, QCAT ordered the body corporate to pay Mrs Knox compensation in the sum of $5,000.00, and to make a private apology to Mrs Knox.

(f) The New South Wales Anti-Discrimination Act 1977 and its application

• [103] In my pursuit of relevant settled law, I will also consider the attitudes of other states with similar Anti-Discrimination Statutes as Queensland, to issues involving discrimination on the grounds of disability/impairment in the context of strata living.
• [104] The New South Wales Anti-Discrimination Act 1977 ('NSW ADA 1977') similar to the Queensland ADA 1991[63] addresses discrimination in the areas of goods and services.
• [105] The New South Wales Administrative Decisions Tribunal ('NSWADT') considered the application of the NSW ADA 1977 in Hulena v Owners Corporation Strata Plan 13672[64] ('Hulena'). In this case, Ms Hulena who was living with Multiple Sclerosis, had difficulty walking and opening heavy doors. She brought an action against the body corporate in relation to her inability to access her lot from the common property of the building.
• [106] It was held that the body corporate did indeed provide the 'service' of providing accessible entrances and exits from the common property to individual lots.[65]
• [107] In Sutherland v Tallong Park Association Incorporated[66] an occupier was unable to independently access the swimming pool. He complained that the respondent (an association that functioned similar to a strata body corporate) prevented him from parking his vehicle close to the swimming pool area, adding that in order to access the pool, he would be required to park in the main car park and traverse approximately 75 metres to the pool which he could not do because of his disability.
• [108] The NSWADT found that the respondent provided recreational, sporting and leisure facilities on common property which it classed as 'services' under the NSW ADA 1977. It also found that the respondent provided a service not only to its members but all those who had a right to use the common property and facilities on the same, including occupiers.
• [109] However, the NSWADT did not find the respondent liable in the area of accommodation.

(g) The Victorian Equal Opportunity Act 2010 and its application

• [110] The Victorian Equal Opportunity Act 2010 ('EOA 2010') similar to the Queensland ADA 1991 and the NSW ADA 1997[67] addresses discrimination in the areas of goods and services, accommodation and more.
• [111] The Victorian Civil and Administrative Tribunal ('VCAT') considered the application of anti-discrimination laws to owners corporations (equivalent of bodies corporate) in Anne Black v Owners Corporation OC1-POS539033E (Human Rights)[68].
• [112] In this case, Ms Black had a disability which required her to use aids such as wheelchairs, scooters and crutches. She had difficulty accessing her lot located on the fourth floor of the building because she was unable to operate doors in the building, including entry doors from the street and car park. She claimed that the owners corporation should make alterations to the building so she can access it independently.
• [113] VCAT noted that in the New South Wales case of Hulena, it was found that the body corporate provided the service of 'the provision of accessible entrances and exits from the common property to individual apartments within the complex'.
• [114] Senior Member B. Steele then held as follows:

In summary an owners corporation is to manage, administer, repair and maintain the common property subject to the cost and to the level of support given by its members. These acts of "helpful activity" are services which include the provision of access to the apartments in the building, since they can only be reached via the common property.

(h) The Disability Discrimination Act 1992 (Cth) and its application

• [115] There are various enactments at the federal level, the object of which is to eliminate certain forms of discrimination. One such enactment is the Disability Discrimination Act 1992 ('DDA 1992') aimed at eliminating discrimination on the ground of disability in areas such as accommodation, access to premises, and the provision of goods and services.[69] It also makes unlawful the contravention of disability standards made by the Minister under the DDA 1992.[70] It seeks to ensure that persons with disabilities have the same rights to equality before the law as the rest of the community; and to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.[71]
• [116] Similar to the ADA 1991, the definition of 'disability' under the DDA 1992 includes the total or partial loss of a part of the body or bodily functions.[72] Further, the definition of services includes a non-exhaustive list of service areas such as recreation, travel, entertainment etc.[73] Further, 'unjustifiable hardship' under the DDA 1992 has a definition similar to the ADA 1991 with the onus to prove the same lying with the person claiming it.[74]
• [117] 'Direct discrimination' under the DDA 1992 is defined in terms similar to the ADA 1991, with the addition that failure to make reasonable adjustments for a person with a disability which would result in treatment less favourable than a person without the disability in circumstances that are not materially different, is considered discrimination.[75]
• [118] Similarly, the concept of 'indirect discrimination' under the DDA 1992 also includes a scenario where a person requires an aggrieved person (i.e., a person with a disability) to comply with a requirement or condition, and because of the disability, the aggrieved person would not be able to comply, or would be if reasonable adjustments are made, but the same has not been made; and the failure to so make reasonable adjustments has or is likely to have the effect of disadvantaging persons with the disability.[76] Importantly, if the said requirement or condition is reasonable, its imposition does not constitute discrimination.[77] More importantly under the DDA 1992, the onus of proving that such a requirement or condition is reasonable lies on the person who imposes or seeks to impose the same on the aggrieved person considering the circumstances of the case.[78]
• [119] The provisions under the DDA 1992 regarding discrimination in the area of goods and services are largely similar to that under the ADA 1991, with the addition of the area extending to the provision of 'facilities'.[79]
• [120] Under the DDA 1992, it is unlawful for a person, whether as principal or agent to discriminate against another person on the ground of disability, in (among other things) the terms or conditions on which accommodation is offered; by denying the other person access, or limiting the other person' access, to any benefit associated with accommodation occupied by the person with the disability; by subjecting the other person to any detriment in relation to accommodation; and importantly by refusing to permit the other person to make reasonable alterations to accommodation occupied by that person if (among other factors) the alteration is at the expense of the person with the disability and the alteration does not involve alteration of the premises of any other occupier. [80]
• [121] Similar to the ADA 1991, 'unjustifiable hardship' operates as a defence under the DDA 1992.
• [122] There is insufficient case law with respect to the application of the DDA 1992 in the sphere of strata bodies corporate for circumstances similar to that of the dispute in question, by a court or tribunal or forum empowered to hear disputes under the said DDA 1992.
• [123] In Ondrich v Kookaburra Park Eco-Village[81], the applicant claimed that she lived with certain mental health conditions, and that the body corporate contravened the provisions of the DDA 1992 by not permitting her access to common property with her dog. The applicant also claimed that the body corporate contravened the provisions of the DDA 1992 by refusing to permit her to live at Kookaburra Park with her dog.
• [124] In this case the Federal Magistrates Court found that the applicant had a disability and that the body corporate's activities did constitute the provision of services and facilities under the DDA 1992. However, the application failed given the applicant was unable to demonstrate other factors such as that the requirement or condition imposed by the body corporate was one which a substantially higher proportion of persons without the disability could comply with.[82]

(i) Did the respondent body corporate act unreasonably by failing to consider or comply with Anti-Discrimination Statutes?

• [125] The circumstances of the present dispute is materially different to those in the cases described above under both the ADA 1991 (the application of which is adequately discussed in case law both in Queensland and interstate) and the DDA 1992 (for which there is little precedent).
• [126] To date, the position of Queensland tribunals in the application of the ADA 1991 appears to be that bodies corporate provide services only in association with recreational facilities such as a swimming pool (C v A and Knox). This is different to the somewhat broader view of the New South Wales tribunals that bodies corporate provide the service of providing accessible entrances and exits from the common property to individual lots (Hulena); and the even broader view of the Victorian tribunals that the activities of a body corporate in the management, administration, repair and maintenance of the common property constitute 'services'.
• [127] Similarly, the position of Queensland tribunals in the application of provisions relating to 'accommodation' under the ADA 1991 appears to be limited to covering common property leading to recreational facilities.
• [128] Accordingly, there is no 'settled law' that I can deduce from the precedent that would be helpful in a determination whether the respondent body corporate in these circumstances acted unreasonably or made an unreasonable decision under the BCCM Act on the basis of a contravention of the ADA 1991.
• [129] Similarly, there is in my view presently no settled law that the DDA 1992 would extend to cover as discrimination, a body corporate's refusal to make an adjustment to common property, where the occupier cannot access the garage within his own lot due to a shortcoming in the said lot, as opposed to the inability to access or use common property.[83]
• [130] Accordingly, I cannot find that the respondent body corporate acted unreasonably by contravening any settled law on a provision of an Anti-Discrimination Statute such as the ADA 1991 or the DDA 1992.
• [131] I will now examine whether the respondent body corporate acted unreasonably by failing to consider the provisions of the ADA 1991 and the DDA 1992 when making its decision under Motion 6.
• [132] In this regard, I note that the members of the respondent body corporate who voted against Motion 6 have not made any submission indicating their reasoning for voting so. Based on the submission made by the respondent body corporate, I am satisfied that it has considered various relevant factors when deciding whether to approve the applicant's request for Mr Bezencon to park in the Corner Space, including council standards, the rights of lot owners and occupiers in relation to the use of common property, the identification of risks and more.
• [133] However, based on the evidence I am not persuaded that it has taken into account the complex provisions of the Anti-Discrimination Statutes that are generally applicable to bodies corporate, and considered the depth of its obligations under those provisions. I cannot say whether the proper consideration of those obligations would have necessarily resulted in a different outcome for Motion 6, given as stated above I do not have the jurisdiction to determine whether the respondent body corporate has contravened any such provisions.
• [134] However, in my view if the applicant or Mr Bezencon were to go before an appropriate forum or tribunal empowered to hear complaints under these statutes, I am of the view that such a complaint would not be without substance (which is why I believe these provisions are relevant for the respondent body corporate's consideration). This is because courts and tribunals across Australia have consistently adopted a broad and purposive interpretation of Anti-Discrimination Statutes. Furthermore, I am satisfied that a person such as Mr Bezencon is prima facie an intended beneficiary of the sort of rights that underpin the ADA 1991 and DDA 1992, given the demonstrated disability he lives with. I am also satisfied that bodies corporate in the community titles sphere are a kind of entity that in certain areas of activity must bring those rights into being (that much I can say is settled law). I simply do not have the jurisdiction to consider most importantly whether the activity areas under these Anti-Discrimination Statutes extend to cover the specific scenario in question. However, I do not believe that this jurisdictional limitation and the lack of settled law on this point should prevent the respondent body corporate from being required to reconsider its decision on Motion 6. I am further of the view that requiring reconsideration in this manner instead of deeming Motion 6 to have passed, takes cognisance of the autonomy of the respondent body corporate.
• [135] Further, I note that these Anti-Discrimination Statutes expressly or impliedly deal with 'rights' and are not limited to mere 'freedoms', which signifies that an entity that is required to comply with the same, including bodies corporate (as per precedent) when providing services or accommodation, can have positive obligations to ensure equality in relevant circumstances. When certain provisions of these statutes are triggered, bodies corporate cannot generally strictly require the persons with the disability to propose options to ensure their access, for its consideration. Practically, in my view, both the person with the disability and the body corporate must have a symbiotic association when exploring these options. Having said so, in my view, it is the body corporate that is likely to have the lion's share of the responsibility of exploring suitable options to accommodate the person with the disability (being the provider of the service and the entity charged with obligations under the statutes), upon being informed of the disability and the consequential inability to access the service.
• [136] I must note in this regard, that if upon a claim by the applicant or Mr Bezencon to the relevant forum under either Anti-Discrimination Statute, it is held that the respondent body corporate has directly or indirectly discriminated against Mr Bezencon by failing to provide a parking space within 50 metres of the applicant's lot, the onus to prove an exemption or defence, (such as unjustifiable hardship) lies with the respondent body corporate. It appears that a defence such as unjustifiable hardship requires sufficient exploration of a suitable option(s).
• [137] Furthermore, in relation to a claim of indirect discrimination under the DDA 1992, it is pertinent to note that the onus of proving that a term or condition imposed upon a person with a disability is reasonable, lies on the entity imposing the same and not on the aggrieved person[84], considering the circumstances[85].
• [138] Having said so, I must also acknowledge the possibility that the respondent body corporate may not be held to be discriminating against Mr Bezencon; and the possibility that any right Mr Bezencon may have to use the Corner Space to park his vehicle, though normatively justifiable, exceeds the legal protection offered under the Anti-Discrimination Statutes.
• [139] Regardless, it would in my view be offensive for the concept of reasonableness under the BCCM Act to shortchange the power and impact of the Anti-Discrimination Statutes and its judicial interpretation and application.
• [140] In these circumstances, instead of making the orders sought by the applicant, it would in my view be just and equitable for me to remit the decision back to the respondent body corporate for reconsideration on the basis that it acted unreasonably by failing to adequately consider the provisions of the Anti-Discrimination Statutes (a relevant factor) that are generally applicable to bodies corporate.
• [141] I recommend that the respondent body corporate carefully consider these provisions (and relevant case law) and whether it would be appropriate for its committee to explore suitable options that allows Mr Bezencon access to the applicant's lot.

(j) Did the respondent body corporate otherwise act reasonably in deciding Motion 6?

• [142] The respondent body corporate states that the respondent body corporate must ensure compliance with its planning permit and the current Noosa Plan 2020. It submits that the applicant has not indicated whether its proposal for Mr Bezencon to park in the Corner Space is compliant with applicable standards and the planning permit.
• [143] Importantly, the respondent body corporate does not specifically state why it believes that the applicant's proposal may not be compliant with these standards, or more accurately why it believes that the Corner Space is not suitable for parking in the manner proposed. For e.g., the Corner Space does not have a sealed pavement; or the Corner Space is a manoeuvring area as per the approved building plans.
• [144] It appears that neither party is certain that it is a manoeuvring area, and there is no formal evidence to confirm that it is or isn't. I reiterate that the onus to demonstrate with sufficient evidence that the respondent body corporate acted unreasonably under the BCCM Act lies with the applicant. I note in this regard that the applicant has not demonstrated that the Corner Space is not a manoeuvring area.
• [145] However, upon perusal of extracts of the site plan for the scheme provided by the applicant, I note that there are two spaces (including the Corner Space) at the western and south-eastern corners of the scheme that are likely meant to be used as manoeuvring areas.
• [146] If it is indeed such an area, I am of the view, that requiring some verification from the local council or relevant authority or professional that council standards or any relevant approvals or permits would not be contravened if the applicant's proposal is implemented, is not unreasonable.
• [147] In relation to the respondent body corporate's submission regarding compliance with the planning permit's clause pertaining to parking spaces, I am of the view that it applies primarily to impose a requirement for a minimum number of parking spaces which must then be built accordingly to the clause. I do not believe that parking in the Corner Space would contravene this clause.
• [148] The respondent body corporate further states that parking in the Corner Space may lead to damage or injury to others lawfully using the common property. It has once again not specified how such damage or injury may occur. Based on its submission, I presume it means that if a person is prevented from using the Corner Space to turn their vehicle, and is forced to circumvent this by for e.g., exiting the scheme in reverse gear, it may increase the risk of an accident. If the Corner Space was indeed intended to be used as a manoeuvring area under the scheme's building plans, then this is not an irrelevant factor for the respondent body corporate's consideration.
• [149] In these circumstances, the applicant has not demonstrated to my satisfaction that the respondent body corporate acted unreasonably in making the decision on Motion 6 in respects other than its failure to consider the provisions of the relevant Anti-Discrimination Statutes as described above.
• [150] If this dispute did not involve any anti-discrimination considerations, it would not have been incorrect to state that the onus lies with the applicant to provide all the information necessary for the respondent body corporate to make an informed decision on its proposal for Mr Bezencon to park in the Corner Space. This includes potentially obtaining clearance from the local council or other relevant entity for the Corner Space to be temporarily used for parking, if it is indeed a manoeuvring area. However, given it is relevant for the respondent body corporate to consider the provisions of Anti-Discrimination Statutes such as the ADA 1991 and DDA 1992, the question of such onus becomes complicated considering its obligations thereunder. As explained above, if either of these Statutes are applicable to this dispute, the onus in this regard cannot be said to rest solely with the applicant in my view.
• [151] On a different note, both the applicant and Mr Bezencon claim that other occupiers at the scheme habitually park in the Corner Space and the visitor parking spaces in contravention of the by-laws; and that the respondent body corporate turns a blind eye in this regard. Neither the applicant nor Mr Bezencon have provided any evidence to this effect - although it is my understanding that they are in possession of numerous photographs of vehicles parked in the Corner Space.
• [152] Whilst I could have requested this information under section 271 of the Act to explore this claim further, I do not believe it is necessary given I am further persuaded that remitting the decision on Motion 6 back to the respondent body corporate for reconsideration is the just and equitable way forward.
• [153] This would enable the respondent body corporate to re-evaluate its decision considering the obligations imposed upon bodies corporate generally by Anti-Discrimination Statutes. The respondent body corporate may also reevaluate whether it is reasonable in the circumstances to require the applicant to provide all information necessary to make a fully informed decision on Motion 6; revisit its concerns regarding the use of the Corner Space as a manoeuvring area as and a risk of injury and damage, considering that it is already purportedly being used for parking by others; consider whether there may be any conditions the committee could impose to remedy any concerns it continues to have in relation to the applicant's proposal; ascertain whether the Town Planning Consent Permit dated 21 September 1994 has been superseded by any other approvals such as a building development approval and its effect on the decision on Motion 6; consider whether it is appropriate to apply the Noosa Plan 2020 for the purposes of the decision on Motion 6 considering the scheme was built in or around 1994 under a superseded planning scheme; consider whether there may be any alternative options that could allow Mr Bezencon to access the applicant's lot (for e.g., whether it is possible for Mr Bezencon to park his vehicle in the exclusive use entry and courtyard area allocated to Lot 1 with any suitable adjustments to the same and to the protruding rockery); consider temporary solutions to any issues that may arise if the proposal under Motion 6 is implemented (for e.g., if the Lot 1 driveway can temporarily be made available for manoeuvring vehicles, or if there is any other space at the scheme available for such use temporarily); investigate purported by-law contraventions by other owners or occupiers where relevant to this dispute; etc.

• [154] The applicant relies on an adjudicator's interim and final decision in River Place Apartments[86]. In this case, the body corporate sought orders to authorise an occupier living with a disability to park a modified vehicle in a visitor parking space (common property) reserved for visitors' disability permit vehicles. This occupier had available to him an exclusive use parking space located beneath the scheme building. However, his modified vehicle due to its large size did not fit in this parking space.
• [155] Upon the Commissioner's invitation for submissions, one occupier opposed the application on the basis of impropriety; the external appearance of a large vehicle 'festooned with advertising for the disabled' being constantly parked in the visitor parking space; adverse impacts in relation to the potential sale of a lot within the scheme; etc.
• [156] The adjudicator considered these objections to be overstated, and was of the view that they did not justify not making the order sought. He concluded that the order sought by the body corporate was a reasonable one.
• [157] There are two notable points of distinction between the decisions in River Place Apartments[87] and the application before me.
• [158] Firstly, the former was not based on an application made by the occupier challenging any decision of the body corporate that refused him to so park on common property. Rather, it appears to be the body corporate attempting to have its decision to allow the occupier to so park his vehicle, ratified by an adjudicator or be given added weight by the force of an adjudicator's order under the Act. This is a crucial difference, given the adjudicator only had to be satisfied that the decision made by the body corporate to authorise parking was reasonable. This is not the exercise required of me at present, which is an owner challenging a decision of the body corporate for being unreasonable. I note that two different bodies corporate can make two different albeit reasonable decisions on the same body of evidence. An owner or occupier cannot challenge a body corporate decision on the basis that it could have made a different, more reasonable decision. Instead, they must demonstrate that relevant factors were excluded or irrelevant ones were considered in the decision making process, warranting an invalidation of the decision.
• [159] Secondly, the exclusive use parking space which was available to the occupier in River Place Apartments is common property, the administration of which is the responsibility of the body corporate under the Act. This is different to the circumstances in the application before me which is that the garage that is available to Mr Bezencon is within the applicant's lot, for which the respondent body corporate is not precisely responsible for. This is also an important difference given the body corporate's decision in River Place Apartments to allocate a visitor parking space for the occupier's use was based on the shortcomings of the common property exclusive use parking space, i.e., that it was not large enough to accommodate a modified vehicle in the same manner as a disability permit parking space.
• [160] Accordingly, while I concur that the decision of the body corporate for River Place Apartments as described above was a reasonable one, that offers little in my evaluation of whether the decision of the respondent body corporate in the application before me is unreasonable.

• [161] At first glance, Anti-Discrimination Statutes do not appear to apply to strata bodies corporate. However, upon examination of the legal precedent to date, it is settled law that providers of 'services' and activities connected with 'accommodation' under statutes such as the ADA 1991 and/or the DDA 1992 can include bodies corporate.
• [162] Based on the evidence, I am not persuaded that the respondent body corporate has appreciated the legal obligations generally applicable to bodies corporate under these statutes, or the contexts in which they may be applicable.
• [163] I am of the view that these obligations ought to have been considered by the respondent body corporate when making its decision on Motion 6 because, as stated above, bodies corporate are entities that can be liable under these statutes and because I am satisfied that Mr Bezencon given the disability he lives with, is prima facie an intended beneficiary of the sort of rights that underpin these statutes.
• [164] There are however important matters under the statutes that I do not have the jurisdiction to determine, such as whether the respondent body corporate is indeed providing a service or engaging in a prescribed activity in connection with accommodation, and has discriminated against Mr Bezencon by defeating Motion 6.
• [165] In these circumstances, I cannot find that the respondent body corporate acted unreasonably by contravening the provisions of any Anti-Discrimination Statute. However, I am satisfied that the obligations imposed upon bodies corporate generally by the ADA 1991 and DDA 1992 were not taken into account by the respondent body corporate when deciding Motion 6. In this regard, I find that it acted unreasonably in contravention of section 94(2) of the BCCM Act.
• [166] This however does not warrant my deeming Motion 6 to have passed. This is because, due to my jurisdictional limitations, I cannot meaningfully determine whether the decision on Motion 6 would be different if the relevant provisions of the Anti-Discrimination Statutes were considered.
• [167] Accordingly, and in the broader circumstances of the dispute, I am of the view that it is just and equitable for the decision on Motion 6 to be remitted back to the respondent body corporate for reconsideration. I would like to provide the applicant with an opportunity to furnish any further information to the committee, now that it has had the benefit of hearing the respondent body corporate's concerns with its proposal under Motion 6.
• [168] Furthermore, I am also of the view that is it just and equitable in the circumstances of this dispute to permit Mr Bezencon to park in the Corner Space until the committee has reconsidered the applicant's proposal.
• [169] I note, for the avoidance of doubt that the proposal under Motion 6 and any further information that may be submitted by the applicant to the committee, can be reconsidered either at the committee level or at a general meeting. Alternatively, the committee may reconsider the same and propose a solution in the form of a motion (or multiple solutions as a group of same issue motions) to the body corporate for determination at a general meeting. [88]
• [170] I note in this regard that generally a committee has greater latitude in addressing issues and exploring solutions as opposed to a body corporate voting on motions at general meetings.
• [171] Further, I note for the avoidance of doubt that the Orders made in this decision do not preclude the applicant from submitting a motion to the body corporate at a general meeting containing any further or different proposals.
• [172] I have provided a summary of the ADA 1991 and the DDA 1992 and some relevant case law in the hopes that it will assist the parties in understanding the application and limitation of these statutes.
• [173] I encourage the committee and the applicant, and Mr Bezencon to work together harmoniously to resolve this dispute.

[1] A registered easement runs beneath this Corner Space. For the purposes of this dispute this is not relevant

[2] The members of the respondent body corporate

[3] [2004] QBCCMCmr 429 and [2004] QBCCMCmr 13 December 2004

[4] The CMS includes the scheme's by-laws

[5] Sections 276)(1)(a) and (b) of the Act

[7] See Brighton on Broadwater Breezes [2018] QBCCMCmr 243 at [8]

[10] [2004] QBCCMCmr 429 and [2004] QBCCMCmr 639

[11] [2004] QBCCMCmr 429 and [2004] QBCCMCmr 639

[13] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [35]

[14] Edgecliff Apartments [2021] QBCCMCmr 30 at [23] to [27] citing Ainsworth v Albrecht [2016] HCA 40; Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177

[15] [2016] QCATA 177

[16] SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 [15] - [16] as cited in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [23]

[17] McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 [60] (Hayne J) as cited in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [24]

[18] Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [36] and [42]

[20] [2016] HCA 40

[22] Woden Valley Glass v Psaila (1993) 122 ALR 378, 391 as cited in Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177 at [47]

[23] Edgecliff Apartments [2021] QBCCMCmr 30 at [23] to [27] citing Ainsworth v Albrecht [2016] HCA 40; Body Corporate for Beaches Surfers Paradise v Backshall [2016] QCATA 177

[25] I recently considered the issue of inconsistent and selective enforcement in Notting Hill Terraces [2024] QBCCMCmr 322 and Starshells [2024] QBCCMCmr 265

[26] This in my view is no different to an adjudicator examining the reasonableness of a body corporate decision made in contravention of relevant express conditions set out in a development approval issued by local council

[27] [2007] QBCCMCmr 265; In this case, the body corporate sought an order against owners of a lot for an unapproved dog to be removed from the scheme. The respondent lot owners alleged that the body corporate contravened provision of an Anti-Discrimination Statute. The adjudicator held that he had no jurisdiction over those matters and did not consider them further.

[28] [2016] QBCCMCmr 417 at [99]

[29] [2004] QBCCMCmr 136; In this case, the body corporate sought an order requiring a lot owner to remove their unauthorised dog from their lot as per the scheme's by-laws. The respondent argued that the by-laws contravened provisions of an Anti-Discrimination Statute. On this point, Adjudicator Meek held as follows:

The third objection, namely, the inconsistency between by-law 14 and the provisions of the Disability Discrimination Act 1992 (Cth), is also a matter I do not propose to consider further. I conclude that this jurisdiction is not an appropriate forum for the testing of a claim of this nature. Complex legal questions are involved in this aspect including the interpretation of Commonwealth legislation, the interrelationship between Commonwealth and State legislation, the question of a possible inconsistency between such legislation, and questions of which law should prevail in the event of an inconsistency, to nominate only some of the issues. This jurisdiction does not involve formal hearings, or the taking of evidence on oath. Moreover, the issues have not been comprehensively argued before me by all parties. Consequently, I am of the view that this claim is one the respondent would need to raise in a forum where such claim could be properly considered.

[30] [2015] QBCCMCmr 302; In this case, the applicant lot owner lived with a disability and relied on the use of a wheelchair. She wished to install a lift on common property to access her lot. The body corporate refused her request to so install a lift at a general meeting. The applicant claimed among other things that the body corporate's decision contravened an Anti-Discrimination Statute. The adjudicator held that the decision was not unreasonable, but in so holding did not address the arguments made by the applicant on the application of the Anti-Discrimination Statute. However the adjudicator did note that the applicant was entitled to reasonable access to her lot, and that 'the task for the body corporate is to allow the applicant to do the work that is necessary to provide access while balancing the rights and obligations of owners'.

[31] [2019] QBCCMCmr 38

[33] [2004] QBCCMCmr 460; In this case, the body corporate sought a declaratory order as to whether a power of attorney for a committee member permitted a person to attend committee meetings. The committee member argues that prohibiting her from vesting her voting power in her attorney would contravene the provisions of an Anti-Discrimination Statute.

[34] [2010] QBCCMCmr 489; In this case, the applicant lot owners sought body corporate approval to keep a dog, Pablo, in their lot. The body corporate approved their request but required evidence that Pablo was a certified assistance dog. The applicant claimed that there was no by-law or other applicable law requiring an assistance dog to be certified as such; and alleged a contravention of an Anti-Discrimination Statute.

[35] [2021] QBCCMCmr 335 at [93] to [98]; In this case, the adjudicator agreed with the approach adopted by Adjudicator Meek in The Village at West End [2004] QBCCMCmr 136.

[36] [2024] QBCCMCmr 92

[38] [2016] QBCCMCmr 118

[40] [2009] QBCCMCmr 230

[41] [2007] QBCCMCmr 444

[42] See Preamble (2) and (3) of the ADA 1991

[44] See the long title of the ADA 1991

[45] See sections 10 and 11 of the ADA 1991

[46] See sections 7 and 8 of the ADA 1991

[47] See sections 45 and 46 of the ADA 1991

[50] See section 10 of the ADA 1991

[51] A term includes a condition, requirement or practice, whether written or unwritten (section 11(4) of the ADA 1991)

[52] Section 11(1) of the ADA 1991

[53] Section 11(2) of the ADA 1991

[54] See section 46(1) of the ADA 1991

[55] See sections 82 and 83 of the ADA 1991

[57] Part 5 of the ADA 1991. This includes welfare measures, equal opportunity measures, compulsory retirement age, citizenship or visa requirements etc.

[58] See section 48 (sites of cultural or religious significance), section 49 (age-based benefits), section 50 (children to be accompanies by an adult) and section 51 (special services or facilities required)

[59] See section 87 (shared accommodation), section 88 (accommodation for workers), section 89 (accommodation for students), section 90 (accommodation with religious purposes), section 91 (accommodation with charitable purposes) and section 92 (special services or facilities required)

[60] Section 51 of the ADA 1991

[61] Section 5 of the ADA 1991

[64] [2009] NSWADT 119

[65] The NSWADT found that Ms Hulena had failed to establish that the body corporate required her to comply with a relevant requirement or condition and hence that she failed to satisfy all the elements of 'indirect discrimination'. However, this decision was successfully appealed on this point in Ms Hulena's favour in Hulena v Owner's Corporation Strata Plan 13672 [2010] NSWADTAP 27

[66] [2006] NSWADT 163

[68] [2018] VCAT 185. This case was appealed to the Supreme Court of Victoria, and was dismissed on the basis that there was no error of law in the decision by VCAT

[69] Section 3(a) of the DDA 1992

[70] Section 32 of the DDA 1992

[71] Section 3(b) of the DDA 1992. It is also pertinent to note the application of section 12 of the DDA 1992 regarding the circumstances in which the 'limited application provisions' of the DDA 1992 apply

[72] Section 4 of the DDA 1992

[73] Section 4 of the DDA 1992

[74] Section 10 of the DDA 1992

[75] Section 5(2) of the DDA 1992

[76] Section 6(2) of the DDA 1992

[77] Section 6(3) of the DDA 1992

[78] Section 6(4) of the DDA 1992

[79] Section 24 of the DDA 1992

[80] Section 25 of the DDA 1992

[81] [2009] FMCA 260

[82] Section 6(a) of the DDA 1992 as it then was

[83] Further, there are also legitimate questions regarding whether the current dispute would meet the requirements under section 12 of the DDA 1992

[84] i.e., the person with the disability

[85] Section 6(4) of the DDA 1992

[86] [2004] QBCCMCmr 429 and [2004] QBCCMCmr 639

[88] Albeit within the timeframe stipulated in Order 1