Trustees of Catholic Aged Care Sydney v Murphy - [2017] NSWCATCD 46 - NSWCATCD 2017 case summary — Zoe

NSWNSWCATCD

Trustees of Catholic Aged Care Sydney v Murphy

[2017] NSWCATCD 46

NCAT Consumer and Commercial|2017-01-17

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Court

NCAT Consumer and Commercial

Decision date

2017-01-17

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

REASONS FOR DECISION

This matter involves a dispute as to whether a resident of a retirement village can have a dog reside with him in the village. The dog is a German Shepherd known as 'Rex'. The applicant ('the village') seeks an order under Section 128(1) (c) of the Retirement Villages Act 1999 ('the RV Act') that the dog be removed, as possession of a dog at the village is in breach of Rule 5 of the village Rules. The respondent ('the resident') argues that (i) Rule 5 is inapplicable, because the dog is not a "pet"; and (ii) the dog is an assistance animal within the meaning of the Disability Discrimination Act 1992 (C'th) ('the DDA') and the Companion Animals Act 1998 (NSW) and it would be unlawful to order the dog be removed. Accordingly the resident argues that he is able to have the dog reside with him at the village, irrespective of Rule 5.
The village and the resident have been involved in a number of previous proceedings in the Tribunal, but the history of previous litigation is irrelevant to the issues for determination in this matter, other than to indicate long standing discord between the parties.
Mr Forrester, Aged Care Co-ordinator, appeared for the village. The resident appeared in person. Mr Gait, of the Retirement Villages Residents Association, appeared as a support person for the resident, but did not seek leave to represent the resident under Section 45 of the Civil and Administrative Tribunal Act 2013, nor made any submissions on behalf of the resident.

[2]

Procedural History

Proceedings were commenced in the Tribunal on 22 September 2016. On 12 October 2016 the Tribunal set the matter down for a hearing, noting that the village had filed and served its documentary evidence, and relevantly setting a timetable for the resident to file and serve documentary evidence. There was a subsequent adjournment of the matter and a dispute as to whether the proceedings should be adjourned until Appeal Panel proceedings between the parties involving separate issues were determined. In any event, on 17 January 2017 the matter was listed for hearing.
During the course of the hearing on 17 January 2017 the resident sought to rely upon documentary evidence that had not been filed and served in accordance with Tribunal directions, and was relevant to the argument of the resident that the dog was an assistance animal for the resident (rather than as an assistance animal for the resident's wife who, although previously a resident of the village, was in a care facility due to advanced dementia).
The hearing was adjourned part-heard, with directions that the resident file and serve any further documentary evidence relevant to the issue of whether the dog was an assistance animal, and for the village to file and serve documentary evidence in reply. The directions made clear that any evidence from a witness must be in the form of a statement, statutory declaration, affidavit or expert report. The directions also made clear that the matter was not to be further adjourned unless there were exceptional circumstances.
At the hearing on 17 January 2017, the village stated that it did not seek an order for termination of the contract; nor an injunctive order that the resident not act in a manner that adversely affects the occupational health and safety of persons working in the village (which were orders 2 and 3 sought in the application filed by the village). The only order sought in the proceedings was that the resident remove the dog (order 1 sought in the application).
The hearing concluded on 7 March 2017.
At the hearing on 17 January 2017, a hearing loop was made available to the resident, but the resident stated that he was able to hear and understand the proceedings without using the hearing loop. The hearing loop was again available when the hearing concluded on 7 March 2017, but the resident again stated that he was able to hear and understand the proceedings without using the hearing loop. At all relevant times, it was made clear to the resident that if he had any difficulty hearing what was said, to raise it with me, and I would take measures to ensure the resident could hear and understand what was said.
During the hearings on 17 January 2017 and 7 March 2017, on occasions the resident would ask Mr Forrester to repeat what he said, and the resident would turn towards Mr Forrester, because the resident was hard of hearing in his right ear. Mr Forrester would then repeat what he said. At no stage of the proceedings before me did it ever appear the resident was disadvantaged in any way by reason of his hearing difficulties.
At the hearing on 7 March 2017, the resident sought to call oral evidence from Ms Phillips, a representative of Mind-Dog, to give evidence about the training of animals by Mind-Dog to become assistance animals, and the training that Rex had undertaken, and would take. The village objected to Ms Phillips giving oral evidence, as other than a brief letter from Ms O'Grady of Mind-Dog dated 18 November 2016, the resident had served no expert evidence from Mind-Dog setting out evidence such as the policies procedures of Mind-Dog; any government accreditation; the training course to become an assistance dog; what training Rex had received; and what training Rex would receive.
The village submitted that the directions of the Tribunal on 17 January 2017 made clear what type of documentary evidence the resident was being granted leave to file and serve. The village submitted that it would be taken by surprise, and accordingly prejudiced, if the resident was granted leave to call Ms Phillips to give evidence about issues that should have been covered in a written statement, statutory declaration, affidavit, or expert report filed and served prior to the hearing and in accordance with Tribunal directions.
In circumstances where the resident had not filed and served any detailed report, statement, affidavit or statutory declaration dealing with the issue of whether Rex was, or was not, an assistance dog, from Ms Phillips and where to allow her to give such evidence orally would be prejudicial to the village, because the resident had not complied with directions of the Tribunal dated 17 January 2017; the village could not anticipate what oral evidence would be given to be able to effectively cross examine Ms Phillips; and the village had not had the opportunity to obtain expert evidence in reply to any oral evidence of Ms Phillips that dealt with issues beyond the scope of her letter dated 18 November 2016, leave was refused to call Ms Phillips as a witness.
The resident was offered the opportunity to apply for a further adjournment which, if it had been made, would have been dealt with on its merits (and taking into account the directions made on 17 January 2017). However, the resident stated that he was not applying for an adjournment, and was satisfied that he had provided sufficient evidence. The hearing concluded on 7 March 2017.

[6]

The Resident

Emails between the resident and Ms Isaacs, Companion Animals Officer, Woollahra Municipal Council dated 14 December 2016; 20 December 2016; and 24 December 2016.
A Mind-Dog "Information Sheet".
An 'Assistance Dog' card issued by "Psychiatric Service Dog Assoc…www.minddog.org.au" stating "valid to 30 November 2017" identifying the dog as "Rex: German Shepherd" with the resident identified as the "Handler" of the dog.
A copy of a document contained in a lanyard under the heading "Minddog" stating "Mind Dogs are tested and certified by Psychiatric Service Dog Assoc (NSW) Incorp…Please help this mind Dog to help her owner. A mind Dog can mean that someone with a mental health disorder leads a full and satisfying life. For enquiries about the Federal Disability Discrimination Act (sic) please go to the Human Rights Commission on www.heroc.gov.au or mind Dog at the address above. The circumstances under which access may be refused are detailed under Section 54A of the Act."
A 1 page document addressed "to whom it may concern" by Ms Gayl O'Grady, Senior Assessor and Trainer for Minddog Delta Cert IV Qld Approved Assistance Dog Trainer dated 18 November 2016.
A certificate of attendance from Eastern Suburbs Dog Training Club dated 11 September 2016 in respect of the resident and 'Rex' attending a 6 week course in responsible dog ownership.
An extract from the website for the 'Delta Society'.
A tax invoice dated 10 October 2016 from Delta Society Australia in respect of the resident being booked to attend the 'Dog Training the Delta Way seminar' on 18 and 19 March 2017. No other evidence was provided as to what this proposed training would involve.
A letter from Ms Levi, clinical psychologist, and Dr Mullins, Staff Specialist in Psychogeriatrics of St Vincent's Hospital Sydney dated 30 September 2016.
A letter of Dr Ikegame (General Practitioner) dated 5 October 2016.
A series of emails between the resident and Mr O'Shea (manager of the village) form the period between 23 August 2014 and 25 June 2015 regarding various issues and complaints the resident had regarding management of the village. This correspondence deals with issues prior to 'Rex' being present at the village.
Photographs of items left on common property and washing hanging from balconies.
A letter from NSW Fair Trading dated 23 September 2016 regarding the resident's complaint about the resident's committee of the village.
An email of Mr O'Shea dated 9 August 2016 to the resident, relevantly stating: "The residents have requested Management to ask you to remove the animal from the village. Accordingly, please remove the dog from all common areas of the village and your unit as soon as possible".
Documents relating to the resident's dispute with the village that was the subject of Appeal Panel proceedings in the Tribunal.
A plan of the village.
An email from Mr O'Shea to the resident dated 10 August 2016, requesting the resident "elaborate" how the request by the village that the resident remove 'Rex' is inconsistent with the Companion Animals Act 1998 and Disability Discrimination Act 1992 (C'th).
Written submissions of the resident.

[7]

Evidence of the Village

No witnesses were called by the village at the hearing, other than Mr Forrester. No statutory declarations or affidavits were tendered by the village.
Mr Forrester stated that under Clause 24 of the licence agreement, the resident agreed to comply with the Rules of the village. Relevantly Clause 24 states as follows: 24. Village Rules (a) The Resident will comply with and observe all the Rules set out in Annexure 'C' attached to this Agreement and which are incorporated in and form part of this Agreement. Rule 5 of the Village Rules states as follows: "5. Pets Option A-no dogs or cats allowed You may keep fish or a small caged bird (for example, a budgerigar of canary) in Your Unit at any time, without the need to let us know or get out consent. For the safety of other residents, no other animals (including cats or dogs) are to be kept in your Unit or brought onto common areas at any time."
Mr Forrester stated that in July 2016 the resident acquired 'Rex' to provide assistance to the wife of the resident, who had been moved from the village into a care facility due to her dementia. The resident would take 'Rex' to the care facility daily to visit his wife, and walk to the local park with his wife and 'Rex'. The resident sought permission to keep the dog. On 27 July 2016 Mr Forrester emailed the resident stating that the only way a dog would be able to be kept at the village for "therapeutic purposes" was if the Rules of the village were amended, which would require consideration of the views of other residents. The email sough information from the resident regarding information about whether the dog has been trained; whether it barks; what would be done if there were marks on the carpet; would the dog be kept inside or on a balcony; how would the dog's waste be disposed; and would the possession of the dog require additional cleaning?
Mr Forrester stated that the resident respondent to the emails on 27 July 2016 and 28 July 2016 by stating the village Rules only apply to "Pets"; the dog "does not bark"; the dog "does not mark carpets"; the dog "is kept inside and is only here at night and is toilet trained" and the resident collects and disposes of waste. The emails of the resident also refer to many other issues in dispute between the parties, which are irrelevant to this dispute.
Mr Forrester stated that the residents committee of the village had considered whether the resident should be allowed to keep the dog and voted against it. A number of residents had complained about the dog barking and on one occasion a resident complained that the dog had got off the leash and almost knocked a resident over. Mr Forrester stated that, on one occasion, he had been to the door of the resident's Unit of the resident and the dog had barked at him aggressively.

[8]

Submissions of the Village

The submissions of the village (both written and oral) were that there is not sufficient evidence to prove the dog is not an "assistance animal" within the meaning of the Companion Animals Act 1998 and the DDA. Mr Forrester accepted that it would be unlawful for the village to prohibit residents having certain types of dogs, such as an accredited Guild Dog, but Rex did not fall into the definition of "assistance animal".
The submissions of the village as to why 'Rex' is not an "assistance animal" within the meaning of the Companion Animals Act 1998 or DDA can be summarised as follows: 1. Prior to 17 January 2017 the resident had submitted that 'Rex' was a 'therapy dog' for the resident's wife, rather than himself. The dog spends a substantial amount of time at the care facility where the resident's wife now resides. 2. The resident has not established that 'Rex' is an assistance animal for the resident within the meaning of Section 9 of the DDA because there is insufficient evidence to establish (i) the disability of the resident that may be capable of being alleviated by the dog; (ii) what training the dog has received to alleviate the disability; and (iii) that the dog meets the requirements of Section 9(2) (c) (ii) of the DDA. The village relied upon the decision of the Full Federal Court in Mulligan v Virgin Australia Pty Ltd [2015] FCAFC 130. 3. There is insufficient evidence to establish that a 'dog in training' falls within the definition of an assistance animal, and limited evidence as to what training the dog is receiving, how it is assessed, or when it will complete training. 4. If 'Rex' is an assistance dog for the resident within the meaning of the Companion Animals Act 1998, and the DDA, then Rule 5 of the village Rules does not discriminate against the resident by reason of the provisions of Section 54A of the DDA. 5. If 'Rex' is an assistance dog, it would create undue hardship for the village within the meaning of Section 11 of the DDA because: (i) the resident had been a resident of the village for 6 years, and brought the dog into the village primarily to give emotional support to his wife, who no longer resides in the village; (ii) all other residents are prohibited from having dogs; (iii) a large dog carried a risk of injury to other elderly residents.

[9]

Evidence of the Resident

The resident stated that he and his wife entered the village in 2010, and in recent years his wife has suffered from dementia, resulting in her moving to full time care at Lulworth House. The resident visits his wife every day, during the hours of 8.30 am to 1.00pm. The resident stated that as his wife's condition was deteriorating in 2016, she became increasingly agitated, and would ask about their dog. The resident and his wife had not owned a dog for a number of years. The resident obtained 'Rex' and took the dog with him when visiting his wife. The resident's wife became significantly less agitated when she saw the dog, and the resident would go on walks with his wife to Rushcutters Bay park with 'Rex', where the resident, his wife and the dog would sit quietly and admire the view. The resident stated that his wife's condition improved after he purchased 'Rex', and the staff at Lulworth House supported the resident in bringing 'Rex' to visit.
The resident stated that his psychological condition was badly affected by his wife's condition, and 'Rex' improved his mental health. The resident had requested the village allow him to have 'Rex' reside at the village. 'Rex' stays inside the resident's unit, other than when he is being walked; is always on a lease, and the resident picks up his droppings and disposes of them. According to the resident, 'Rex' is very quiet, and rarely barks. The resident stated that the dog is well behaved, and there was only one occasion on which the dog got off the leash and ran past a resident.
The resident stated that he had sought to have 'Rex' accredited as an assistance dog, but there is a 'waiting list' to obtain accreditation, and it was not until October 2016 that 'Rex' was accepted by Mind-Dog as a trainee assistance dog. The resident stated that 'Rex' had been given a vest to be worn stating that he was an assistance dog, and documents stating that he was an accredited assistance dog in training. The resident had contacted the local Council (Woollahra Municipal Council), and the requested that the records of 'Rex' be amended to show he was an assistance dog. Ms Isaacs, Companion Animals Officer of the Council had emailed the resident on 20 December 2016 "congratulating" the resident for getting Rex "into the program-I have a friend with a psychiatric service dog via Mind dogs (sic) and she is very important to him". The email from Ms Isaacs further stated: "I've put notes on his microchip advising of his new status".

[14]

The Disability Discrimination Act 1992 ('C'th') ('the DDA')

However, in this matter, there is an issue regarding the scope of the Tribunal's jurisdiction, because this dispute involves the interaction between Commonwealth legislation and NSW legalisation. The jurisdiction issue is whether (and if so, to what extent) the Tribunal can consider and apply the provisions of the DDA. The resident argues that 'Rex' is an assistance animal as defined in Section 9 of the DDA. The DDA is Commonwealth legislation. Under Section 12(2) the DDA applies "throughout Australia", subject to exceptions set out in Section 12 of the DDA which do not apply to the circumstances of this matter.
Section 13(3) of the DDA states that the Act does not limit or exclude the operation of a law of a State or Territory that is "capable of operating concurrently with this Act" (subject to the provisions of Section 13 excluding a person who has made a complaint under State or Territory legislation dealing with a disability from making a complaint or instituting proceedings under the Australian Human Rights Commission Act 1986 (C'th) in respect of the same matter). Section 5 of the DDA refers to "direct" discrimination against persons with a disability, and Section 6 of the DDA refers to "indirect" discrimination against persons with a disability. Under Section 24 of the DDA it is "unlawful" for a person who provides goods or services, or makes facilities available, to discriminate against a person on the grounds of the person's disability. Under Section 25(2) of the DDA, it is "unlawful" for a person to discriminate against another person on grounds of disability in respect of access to accommodation (including limiting access and limiting benefits associated with accommodation), subject to exceptions in Section 25(3) of the DDA. Under Section 8(1) of the DDA, the Act applies in the same manner to an "assistance animal" as to a person with a disability.
Under Section 4 of the DDA, "disability" is defined as follows: disability", in relation to a person, means: (a) total or partial loss of the person's bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) the malfunction, malformation or disfigurement of a part of the person's body; or (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or (g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that: (h) presently exists; or (i) previously existed but no longer exists; or (j) may exist in the future (including because of a genetic predisposition to that disability); or (k) is imputed to a person. To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability. Under Section 9(2) of the DDA, "assistance animal" is defined as follows: (2) For the purposes of this Act, an assistance animal is a dog or other animal: (a) accredited under a law of a State or Territory that provides for the accreditation of animals trained to assist a persons with a disability to alleviate the effect of the disability; or (b) accredited by an animal training organisation prescribed by the regulations for the purposes of this paragraph; or (c) trained: (i) to assist a person with a disability to alleviate the effect of the disability; and (ii) to meet standards of hygiene and behaviour that are appropriate for an animal in a public place. Note: For exemptions from Part 2 for discrimination in relation to assistance animals, see section 54A.
Section 54A of the DDA states:

[15]

Assistance animals (1) This section applies in relation to a person with a disability who has an assistance animal. Note: For when a person with a disability has an assistance animal, see subsections 9(2) and (4). (2) This Part does not render it unlawful for a person to request or to require that the assistance animal remain under the control of: (a) the person with the disability; or (b) another person on behalf of the person with the disability. (3) For the purposes of subsection (2), an assistance animal may be under the control of a person even if it is not under the person's direct physical control. (4) This Part does not render it unlawful for a person (the discriminator) to discriminate against the person with the disability on the ground of the disability, if: (a) the discriminator reasonably suspects that the assistance animal has an infectious disease; and (b) the discrimination is reasonably necessary to protect public health or the health of other animals. (5) This Part does not render it unlawful for a person to request the person with the disability to produce evidence that: (a) the animal is an assistance animal; or (b) the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place. (6) This Part does not render it unlawful for a person (the discriminator) to discriminate against the person with the disability on the ground that the person with the disability has the assistance animal, if: (a) the discriminator requests or requires the person with the disability to produce evidence referred to in subsection (5); and (b) the person with the disability neither: (i) produces evidence that the animal is an assistance animal; nor (ii) produces evidence that the animal is trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place. (7) This Part does not affect the liability of a person for damage to property caused by an assistance animal.

Section 11 of the DDA creates an exception to conduct that would otherwise be unlawful discrimination if there is "unjustifiable hardship", by reason of the operation of Section 29A of the DDA. Section 11 of the DDA states: Unjustifiable hardship (1) For the purposes of this Act, in determining whether a hardship that would be imposed on a person (the first person) would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following: (a) the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned; (b) the effect of the disability of any person concerned; (c) the financial circumstances, and the estimated amount of expenditure required to be made, by the first person; (d) the availability of financial and other assistance to the first person; (e) any relevant action plans given to the Commission under section 64. Example: One of the circumstances covered by paragraph (1)(a) is the nature of the benefit or detriment likely to accrue to, or to be suffered by, the community. (2) For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.
In respect of breaches of the DDA, a person may complain to the Australian Human Rights Commission, which is a body established under the Australian Human Rights Commission Act 1986 (C'th). If a complaint is made, the Australian Human Rights Commission investigates the complaint, and attempts to conciliate between the parties. If a complaint is not resolved through conciliation and proceedings in the Commission are terminated under Section 46PE or Section 46PH of the Australian Human Rights Commission Act 1986 (C'th), the complainant may take proceedings in the Federal Court or Federal Circuit Court under Section 46PO of the Australian Human Rights Commission Act 1986 (C'th). Under Section 46PO (4) of the Australian Human Rights Commission Act 1986 (C'th), the Court may award damages for breach of the DDA) (Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130 at paras [162]-[168]). The Court also has the power to make declarations and orders preventing the continuation of unlawful discrimination in breach of the DDA (Section 46PO(4)(a) of the Australian Human Rights Commission Act 1986 (C'th).

[16]

NSW Legislation that Refers to the DDA-Relevant Provisions

The NSW legalisation that applies in respect of disability discrimination is the Anti-Discrimination Act 1977 (NSW) ('the AD Act'). Neither party in the proceedings made any reference to the provisions of that Act in submissions, and it is unnecessary to discuss the legislation in detail. The AD Act does not contain any reference to "assistance animal", but Section 49B of the AD Act refers to dogs providing assistance to persons with a disability in respect of vision, hearing or mobility.
NSW legislation that refers to the DD Act is the Companion Animals Act 1998 ('the CCA') and the Strata Schemes Management Act 2015 ('the SSMA 2015').
Section 5 of the CCA defines "assistance animal" as follows: assistance animal" means an animal referred to in section 9 (Disability discrimination-guide dogs, hearing assistance dogs and trained animals) of the Disability Discrimination Act 1992 of the Commonwealth, but does not include a working dog. Note : That section refers to a guide dog, a dog trained to assist a person in activities where hearing is required and any other animal trained to assist a person to alleviate the effect of a disability.
Section 5 of the CCA defines "disability" as follows: "disability" has the same meaning as in the Disability Discrimination Act 1992 of the Commonwealth.
Section 59 of the CCA states: Person with a disability entitled to be accompanied by assistance animal 59 Person with a disability entitled to be accompanied by assistance animal (1) A person with a disability is entitled to be accompanied by an assistance animal being used bona fide by the person to assist the person, into or onto any building or place open to or used by the public or on any public transport. (2) The person is not guilty of an offence merely because the person takes the animal into or onto or permits the animal to enter or be in or on any such building or place or any public transport while the person is using the animal bona fide to assist the person. (3) This section applies despite the provisions of any other Act or instrument made under an Act.
Section 60 of the CCA makes it an offence for the occupier of a building, or of a public place, or the operator of public transport, to refuse entry to an assistance animal which is being used bona fide to assist a person with a disability, unless there is a reasonable excuse.
Part 8 of the CCA deals with registration and identification procedures. Section 72 of the CCA states: 72 Certificate of registration (1) The Director-General is to provide the registered owner of a companion animal with a certificate of registration for the animal, showing the registration information for the animal. (2) The certificate of registration is to be provided at the time of registration and is to be provided free of charge. (3) The certificate of registration is evidence that the animal is registered and that the registration information shown on the certificate is that entered on the Register. Information entered on the Register is presumed (in the absence of evidence to the contrary) to be correct. Note : In this way, the certificate of registration can be used as evidence of (for example) the name of the registered owner of an animal and the address at which it is ordinarily kept. (4) The Director-General can issue a replacement certificate of registration when a certificate of registration is lost, stolen, damaged or destroyed, and can charge a fee for the issue of the replacement certificate.
Regulation 18 of the Companion Animals Regulations 2008 states: 18 Registration fee exemption for assistance animals (1) There is an exemption from payment of a registration fee for the registration of an animal that is an assistance animal or is undergoing training to be an assistance animal. (2) The exemption ceases to apply if the animal ceases to be an assistance animal or ceases training without becoming an assistance animal. (3) If the exemption ceases, the registration fee for the animal's registration must be paid within 28 days after the exemption ceases. (4) If the registration fee is not paid within that time, the council of the area in which the animal is ordinarily kept may cancel the registration of the animal by noting the cancellation on the Register. (5) Before cancelling the registration of an animal under subclause (4), the council must notify the owner of the animal in writing of the proposed cancellation and of any associated action proposed to be taken (including subsequent prosecution of the owner for being the owner of an unregistered animal). (6) A council that cancels the registration of an animal under this clause must notify the Departmental Chief Executive of the cancellation within 7 days. (7) The council or the Departmental Chief Executive may reinstate the registration of an animal that was cancelled under subclause (4) by noting the reinstatement on the Register.
Unlike the Strata Schemes Management Act 1996, the SSMA 2015 (which commenced on 30 November 2016) contains specific reference to the DDA as follows: 139 Restrictions on by-laws … (5) By-law cannot prevent keeping of assistance animal A by-law has no force or effect to the extent to which it purports to prohibit or restrict the keeping on a lot of an assistance animal (as referred to in section 9 of the Disability Discrimination Act 1992 of the Commonwealth) used by an owner or occupier of the lot as an assistance animal or the use of an assistance animal for that purpose by a person on a lot or common property. (6) A by-law may require a person who keeps assistance animal on a lot to produce evidence to the owners corporation that the animal is an assistance animal as referred to in section 9 of the Disability 1992 of the Commonwealth. …"

[18]

Authorities in Respect of What is an 'Assistance Animal"

The Tribunal (and the District Court) has considered whether a dog is an "assistance animal" within the meaning of the DDA in the context of whether or not a Lot owner is in breach of By-Laws of a strata scheme. Drexler v Owner's Corporation SP 56117 [2012] NSWCTTT338 involved an application by a Lot owner of a strata scheme that the Lot owner be able to retain a dog named 'Larry' on the basis that he had a hearing disability and the dog was an "assistance dog" within the meaning of Section 9 of the DDA, as it assisted the Lot owner to alleviate his disability. Relevantly, the By-laws of the strata scheme prevented a Lot owner from keeping an animal on the Lot, subject to Section 49 of the Strata Schemes Management Act 1996 (as it then was) that stipulated that a By-law had no effect to the extent it prevented or restricted a Lot owner keeping a "dog used as a guide dog or hearing dog".
Member Ringrose reviewed authorities in respect of Section 9 of the DDA, including Forrest v Queensland Health (2007) FCA 936 and Ondrich v Kookaburra Park Eco-Village (2009) FMCA 260. Member Ringrose relevantly held: 1. There were no statutory provisions for accreditation of a hearing dog in NSW or accredited training organisations in NSW for hearing dogs. 2. It was appropriate to consider the provisions of Section 9 of the DDA to "assist in determining the formal requirements to be applied to a hearing dog" (at para [46]). 3. In the context of Section 9 of the DDA, a hearing dog "should have training to assist a person with a hearing disability to alleviate the effect of that disability and should be trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place. It is clear from the authorities that training may be undertaken by any person or organisation qualified to do so but that there must be a specific nexus between the training undertaken and the alleviation of the effects of a hearing disability. Mere obedience training would not be sufficient in my view". (at para [47]). 4. Although the Lot owner's evidence was "far from ideal" (at para 49] and 'Larry' was only given additional training as a hearing dog after it became clear the owners corporation would not give permission for the dog to reside as a pet, the Lot owner had provided medical evidence of his hearing disability, and evidence that the dog had received training to alleviate the disability, including responding to smoke alarms and persons knocking at the door. The owners corporation had "never sought an opportunity to have an independent expert evaluate the performance of the dog" and if such a request had been made and refused, it would have "cast considerable doubt upon the reliability of the applicant's evidence" (at para [50]). However, although the expert evidence of the Lot owner regarding the training the dog had received was limited, there was no expert evidence to challenge it. 5. A certificate of completion of a 6 week intermediate obedience course was sufficient to address the requirements of standard hygiene and behaviour appropriate for an animal in a public place within the requirements of Section 9(2)(c)(ii) of the DDA (at para [56]. 6. As there was sufficient evidence the Lot owner had a disability; the dog was trained to alleviate the disability; and the dog had been trained sufficiently in respect of standards of hygiene and behaviour, the dog was a "hearing dog" within the meaning of Section 49 of the Strata Schemes Management Act 1996.
In Owners of Strata Plan 56117 v Drexler [2013] NSWDC 67, Taylor DCJ dismissed the appeal by the owners corporation arising from the decision of Member Ringrose. His Honour pointed out that the current provisions of Section 9 of the DDA came into effect in 2009, and the previous version of Section 9 of the DDA did not make reference to the dog being "trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place". His Honour found that Member Ringrose was in error to consider whether the dog was "trained to meet standards of hygiene and behaviour in a public place" when interpreting Section 49 (4) of the Strata Schemes Management Act 1996, but that error was irrelevant to the outcome of the appeal. His Honour found that there was no error in Member Ringrose's other findings, including the finding that "the training was appropriately party of the method of identifying whether the dog was genuinely being used as a hearing dog".
In Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130, the Full Federal Court considered the operation of Section 9 of the DDA in the context of whether a domestic airline had breached the DDA by refusing to allow a passenger to fly with a dog, which the passenger asserted was an assistance animal. The passenger suffered from cerebral palsy, reduced sight, and reduced hearing. The passenger provided evidence that he had been issued an "Assistance Animal" card by public transport authorities in NSW and Queensland in respect of the dog. The airline asserted that there was not sufficient evidence of the disability the passenger suffered from, or that the animal had been adequately trained as an assistance animal. The expert evidence the passenger relied upon in respect of the training the dog had received was a letter from the Coffs Harbour Dog Training Club Incorporated that the dog had been training with the club "for the last 3 months…and will continue to train with us in the future" and that the dog assisted the passenger with "is daily living skills...is toilet trained, clean, and cared for correctly".
The Full Federal Court held that the airline had breached the DDA by refusing to allow the dog to fly with the passenger. Relevantly, the Full Federal Court held: 1. There was sufficient evidence that the passenger had a "disability" within the meaning of Section 9 of the DDA, by reason of vision impairment. 2. There was sufficient evidence that the dog was trained to alleviate the effect of the disability, and that the dog was trained to meet standards of hygiene and behaviour that are appropriate for an animal in a public place. (at paras [125]-[128]).

[21]

Does the Resident Have A Disability?

"Disability" is defined in Section 4 of the DDA, and the definition has been set out previously in this decision.
The only expert medical evidence provided by the resident in respect of "disability" is the letter of Ms Levi and Dr Mullin dated 30 September 2016. That report refers to the resident suffering from "carer stress…adversely affecting his mental health" and that since adopting 'Rex' the applicant's "mental health issues have largely resolved". The letter of Ms O'Grady of Mind-Dog dated 18 November 2016 states that the resident's doctor has "given us written advice that John fits the medical criteria to have an assistance dog", but it is unclear whether Ms O'Grady is referring to the letter of Ms Levi and Dr Mullin, or some other medical report that was not put into evidence by the resident.
There is no evidence the resident has a physical disability. The issue is whether he has a mental disorder that falls within the definition of disability under Section 4 of the DDA.
On the evidence before me, I am not satisfied the resident suffers from a "disability" within the meaning of Section 4 of the DDA. There is no medical evidence that the resident has a partial loss of mental functions within the meaning of Section 4(a) of the DDA. There is no evidence of any partial loss of a part of the body, nor any illness, disease, or organisms causing illness or disease within Sections 4 (b)-(d) of the DDA. There is no evidence of any malfunction of the resident's body within the meaning of Section 4(e) of the DDA. There is no evidence of any disorder or malfunction affecting the resident's ability to learn within the meaning of Section 4(f) of the DDA.
The reference in the letter from Ms Levi and Dr Mullin to "carer stress" and the resident's "mental health" raises the issue of whether the resident has evidence of "disorder, illness or disease that affects…thought process, perception of reality, emotions or judgement or that results in disturbed behaviour" within Section 4 (g) of the DDA, either presently or "may exist in the future (Section 4(i) of the DDA. However, although the resident is clearly upset by reason of the poor health of his wife, and the fact that he now resides alone in his Unit in the village, the resident provided no expert medical evidence that he currently has; previously had; or may have in the future, a psychological illness or disorder, such as an Anxiety Disorder, Depression, or Adjustment Disorder. There is no expert medical evidence that the resident has a psychological illness, disease or disorder (Ondrich v Kookaburra Eco-Village [2009] FMCA 260 at [32]; State of Queensland v Forest [2008] FCAFC 96; (2008) 168 FCR 532). Evidence of the disability, including its nature and extent, is necessary for the determination of whether or not there is a "disability" within definition set out in Section 4 of the DDA, as well as whether the animal is trained to assist with the disability (Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130 at [115]-[119])
In the absence of expert evidence that clearly establishes that the resident has; previously had; or may have in the future, a "disorder, illness or disease that affects…thought process, perception of reality, emotions or judgement or that results in disturbed behaviour", I am not satisfied that he has a "disability" within the meaning of Section 4 of the DDA. In the absence of a "disability" of the resident within Section 4 of the DDA, 'Rex' cannot be an "assistance animal" within the meaning of Section 9 of the DDA.
The resident argues that it is sufficient that 'Rex' has been accepted by Mind-Dog as an "assistance animal in training" to establish that he has a disability. However, no evidence was provided of the medical evidence Mind-Dog relied upon in accepting 'Rex' into their assistance dog training program as an assistance animal for the resident, nor of the criteria Mind-Dog apply for determining whether a dog is accepted as an "assistance animal in training". The resident had a reasonable opportunity to obtain such evidence and file and serve such evidence in accordance with the directions of the Tribunal made on 12 October 2016 and 17 January 2017. The Tribunal can only determine this matter on the basis of the evidence before it at the hearing, not upon the evidence that the resident may have been able to obtain but failed to do so.
The resident also argues that the email from the Companion Animals Officer of the Woollahra Council had amended Council records to show 'Rex' was an assistance dog is evidence that the resident has a disability. However, there is no report or records from the Council other than the brief email exchange between the resident and Ms Isaacs. No registration records for 'Rex' were provided. No records or documents (such as an accreditation card) were provided from NSW public transport authorities that 'Rex' is an assistance dog for the resident and may travel on public transport (such evidence having been provided in Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130 at [5]).

[24]

What Orders Should be Made to Remedy the Breach?

Under Section 128 (1) (d) of the RV Act, the Tribunal has a discretionary power to make orders that the resident take steps to remedy any breach of a village Rule.
The village has provided evidence from the residents of 4 units in the village that they oppose the dog being kept in the village, and 2 of the documents refer to the dog barking and on one occasion approaching another resident on the common property and barking. The residents of Unit 21 also refer to the dog "jumping over a stone fence" on the common property, and food pellets being left on common property. There is evidence the dog being present has been discussed at 2 meetings of the resident's association of the village, and the residents have voted against the dog residing at the village.
The village also relied upon a report from Ms Kanarakis, occupational therapist, which discusses generally that "pets" can be "hazardous" to other residents in the environment of a retirement village. However, the report of Ms Kanarakis makes no reference to the circumstances of this dispute, and whether 'Rex' represents any hazard to the other residents. The report of Ms Kararakis does not adopt the NCAT Code of Conduct for expert witnesses.
Just as there are inadequacies in the evidence of the resident, there are also inadequacies in the evidence of the village. The evidence of other residents is not in the form of a statutory declaration or affidavit, and none of the other residents attended the Tribunal to give evidence and be cross examined. Accordingly, the weight that the Tribunal can give to such evidence is reduced as compared to the weight given to the evidence of the resident, who gave sworn evidence and was cross examined. The report of Ms Kanarakis is also to be given significantly reduced weight.
However, in circumstances where it was a term of the village Rules that no resident have a dog residing with the resident at the village; there is no evidence that any other resident has a dog residing at the village; and there is not sufficient evidence that the resident has a "disability" within the meaning of Section 4 of the DDA or 'Rex' is an "assistance animal" for the resident within the meaning of Section 9(2) of the DDA, I am satisfied that the appropriate order to rectify the breach is that the resident arrange for 'Rex' to be removed from the village.

[25]

Conclusion

I accept that removing 'Rex' from the village will cause hardship to the resident due to his (and his wife's) emotional attachment to the dog. In circumstances where the village has not provided evidence that 'Rex' is an immediate threat of biting another resident or colliding with another resident, and there is a moderate amount of evidence that 'Rex' is a nuisance to other residents by barking, it is appropriate to allow the resident 8 weeks from the date of this decision to remove 'Rex' from the village. The resident will require time make appropriate arrangements for 'Rex' to find a place to reside other than the village. Despite the history of past discord between the parties, the Tribunal encourages the village to provide whatever reasonable assistance is available to achieve compliance with the order.
In making the order that 'Rex' be relocated from the village, I make clear that findings can only be made on the evidence before the Tribunal in these proceedings by the village under Section 128 of the RV Act, and I make no findings or speculate on what causes of action (if any) would be available to the resident if the resident fell within the definition of "disability" under Section 4 of the DDA and 'Rex' fell within the definition of the "assistance animal" under Section 9(2) of the DDA based on events after 7 March 2017; nor if this matter goes on appeal, the provisions of Section 81 of the NCAT Act or any application to adduce fresh evidence in appeal proceedings (Schedule 4 Part 6 Clause 12 of the NCAT Act). G.J. Sarginson Senior Member Civil and Administrative Tribunal of New South Wales 16 June 2017 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: 25 August 2017

Trustees of Catholic Aged Care Sydney v Murphy

At a glance

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Judgment (25 paragraphs)

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Legislation Cited (3)

Cases Cited (9)

Cited By (3)