Volk v The Owners Corporation SP 33591

NCAT Administrative and Equal Opportunity|2015-12-22

Introduction

On 27 August 2015 the Tribunal dismissed Ms Volk's complaint of disability discrimination against The Owners Corporation SP 33591. The parties had settled the matter by signing a deed and had requested that the Tribunal make consent orders that the proceedings be discontinued and that the parties perform all the obligations imposed by the deed. The Tribunal was not satisfied that it had power to make that order so the proceedings were dismissed pursuant to s 59(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
Ms Volk applied for the matter to be re-listed and, ultimately, for the Tribunal to vary its order: Civil and Administrative Tribunal Regulation 2013 (NSW) (NCAT Regulation), cl 9. The requested variation was that the proceedings be discontinued and for the Tribunal to order the Owners Corporation to do certain things in the future so as not to discriminate against Ms Volk on the ground disability. The Owners Corporation has refused to consent to those orders being made.
I am satisfied, in accordance with cl 9 of the NCAT Regulation, that the order the Tribunal made on 27 August 2015 should be varied because the order was made in the absence of the parties and that has resulted in Ms Volk's submission not being adequately put to the Tribunal. That submission would have been that the Tribunal had the power to order that the parties must perform all the obligations imposed by the deed. However, Ms Volk no longer makes that submission. She submits that the Tribunal should order that the Owners Corporation do certain things which, in some respects, are narrower than the matters specified in deed. As I am satisfied that these matters are consistent with the deed, and the Owners' Corporation has previously consented to the making of orders which are wider than those now proposed, I vary the decision accordingly.

Background

On 27 October 2014 the President of the Anti-Discrimination Board referred Ms Volk's complaint to the Tribunal. She alleged that the Owners Corporation had discriminated against her on the ground of disability in breach of the Anti-Discrimination Act 1977 (NSW).
Following several case conferences, the Owners Corporation's solicitors wrote to the Tribunal on 24 July 2015 requesting that it make the following orders by consent: 1. The Tribunal orders that the proceeding is discontinued. 2. The Tribunal orders pursuant to section 59 of the Civil and Administrative Tribunal Act 2013 (NSW) that the parties must perform all the obligations imposed by the attached Deed of Settlement and Release executed by the parties.
Section 59 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) gives the Tribunal power to make consent orders in certain circumstances: 59 Powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if: (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. (2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.
The request for consent orders was in writing and signed by each party in accordance with s 59(1)(a) but the deed was not attached. In the absence of that document, the Tribunal was not in a position to decide whether it had power to make the orders sought. The Tribunal requested a copy of the deed of settlement and release.
The complaint of disability discrimination was listed for dismissal on 18 August 2015. The parties were told that there was no need for them to attend. Having reviewed the deed, the Tribunal made the following order: Pursuant to s 59(2) of the Civil and Administrative Tribunal Act 2013, I dismiss the application as it has been withdrawn.
The reason given for dismissing the application was that the Tribunal was not satisfied pursuant to s 59(1)(b) that it would have power to make Order 2, that the parties must perform all the obligations set out in the deed.
On 9 September 2015 the solicitors for Ms Volk wrote to the Tribunal saying that the decision of 18 August 2015 was not consistent with the consent orders signed by both parties and provided to the Tribunal. Ms Volk's solicitors submitted that consent to Order 1 (that the proceedings be discontinued) was contingent on Order 2 being made. Ms Volk's solicitors submitted that if the Tribunal was unable to make the orders consented to by the parties, the Tribunal ought to have requested submissions from both parties in relation to what alternative orders could have been made. Ms Volk's solicitors requested that the Tribunal re-list the matter.
The matter was re-listed on 13 October 2015 but adjourned until 27 October 2015. On that date the Tribunal conducted an interlocutory hearing. Ms Volk's solicitors made various oral submissions including that the Tribunal's decision of 18 August 2015 should be set aside under cl 9 of the NCAT Regulation. As the Owners Corporation was not on notice of that application, and cl 9(4) obliges the Tribunal to afford the parties an opportunity to make submissions about the final order, the Tribunal made the following directions: 1. by 4 November 2015 applicant to file and serve a set aside application under clause 9 of the Regulation; 2. by 20 November 2015 respondent to file and serve submissions in reply; 3. matter to be determined on the papers after that date.
No application was lodged by the applicant by 4 November 2015. On 20 November 2015 the Owners Corporation wrote to the Tribunal noting that Ms Volk had not filed a formal application or submission, nor had she given any reason for failing to do so. The Owners Corporation applied for Ms Volk's oral application for the Tribunal's orders to be varied, to be dismissed. The basis for the application for dismissal was that, in accordance with s 55(1)(b) or (d) of the NCAT Act, the proceedings were frivolous vexatious or otherwise misconceived or lacking in substance, or there has been a want of prosecution of the proceedings. The Owners Corporation also applied for costs.
On 30 November 2015, in response to the Owners Corporation's submission, the Tribunal made the following further directions: 1. by 16 December 2015 the applicant is to file and serve any submission in response to the respondent's application for dismissal of the applicant's application to set aside the Tribunal's decision of 18 August 2015 and any submission in response to the respondent's application for costs; 2. the respondent's application will be determined on the papers after that date.
On 18 December 2015 the Tribunal received correspondence from Ms Volk's solicitor dated 16 December 2015 enclosing a submission said to be in compliance with the further orders made on 30 November 2015. However, the submission was not confined to responding to the Owners Corporation's application for dismissal and costs. Ms Volk's solicitors wrote that they did not understand that they were required to take any further steps to apply to set aside or vary the decision under cl 9 of the Regulation. That was said to be the case because it had sought that direction in its letter to the Tribunal of 9 September 2015 and had also orally made the application at two directions hearings on 13 and 27 October 2015. In any event, Ms Volk's solicitors noted that under cl 9(2), the Tribunal may also make orders setting aside its own decision of its own motion.
In the letter Ms Volk's solicitors wrote to the Tribunal on 9 September 2013, they requested that the matter be re-listed. There was no reference to cl 9(2) of the Regulation. No application for the Tribunal to set aside or vary the decision under cl 9(2) was made at the directions hearing on 13 October 2015. It was not until the matter was listed for hearing on 27 October 2015 that Ms Volk's solicitor made an oral application that the Tribunal's decision be varied. Because the Owners Corporation was not on notice that an application under that provision was being made, the Tribunal directed Ms Volk to file and serve a "set aside" application. No such application was received. When the Owners Corporation applied for the oral application that was made on 27 October 2015 to be dismissed and for their costs, Ms Volk responded.
Despite Ms Volk's non-compliance with the directions, her solicitors did make a submission on 16 December 2015 supporting their application for the Tribunal to vary its decision. The Owners Corporation has had an opportunity to respond to the oral application made on 27 October 2015 in their submission dated 20 November 2015 and in further submissions the Owners Corporation made on 18 December 2015.

Application to vary Tribunal's decision

Clause 9 of the NCAT Regulation provides that: (1) In addition to any power that is expressly conferred on the Tribunal by the Act or enabling legislation to set aside or vary its decisions, the Tribunal may order that a decision it has made that determines proceedings be set aside or varied in either of the following circumstances: (a) if all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, (b) if the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal. (2) The Tribunal may make an order under this clause of its own motion or on the application of a party. (3) Unless the Tribunal grants an extension under section 41 of the Act, an application for an order under this clause must be made within 7 days after the decision concerned was made. (4) Except where the parties have consented to the making of the order, the Tribunal may not make an order under this clause unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (5) A party may not make an application for an order under this clause to set aside or vary a decision of the Tribunal if: (a) an internal appeal or appeal to a court against the decision has been lodged or determined, or (b) an application for a judicial review of the decision has been made or determined. (6) A party may not, without the leave of the Tribunal, make an application for an order under this clause to set aside or vary a decision of the Tribunal if the party has previously made an application under this clause to have the decision set aside or varied. (7) If the Tribunal sets aside a decision under this clause, it may also set aside any orders that it made consequent on the decision that has been set aside. Note. An example of such a consequent order may be an order for costs in the proceedings. (8) Proceedings for the purposes of this clause are prescribed for the purposes of section 50(1)(d) of the Act.
I note that the application to vary the Tribunal's decision was not made within 7 days after the decision was made, as required by cl 9(3). Nevertheless, pursuant to s 41 of the NCAT Act, I extend the time within which to apply. Ms Volk's solicitors applied for the matter to be re-listed three weeks after the decision was made. There is no particular prejudice to the Owners Corporation in extending the time because they have previously agreed to consent orders being made. Further, and most significantly, for the reasons given below, Ms Volk's application has merit.
Clause 4 of the deed states that, "This Deed may be pleaded as a full and complete defence by any of the parties to any relevant proceedings or claims arising out of the facts, matters and circumstances referred to in the Deed and may be used as evidence in relation to any claim for conduct contrary to this Deed." I accept that the deed operates as a bar to any continuation by Ms Volk of the substantive proceedings alleging disability discrimination against the Owners Corporation: Sebastian v Rail Infrastructure Corporation & Ors [2005] NSWADT 281 at [43] to [50] and Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 31A-B. However, contrary to the Owners Corporation's submission, cl 4 does not mean that the Tribunal has no power to set aside or vary its own order.
The Tribunal's decision to dismiss the application as it had been withdrawn was made in the absence of both parties. Ms Volk's absence meant that her case was not adequately put to the Tribunal. I am satisfied that I should exercise the discretion in cl 9(1) to vary the decision. The remaining issue is what orders the Tribunal should now make.
Ms Volk applied for the orders to be varied to make the following orders: 1. the Tribunal orders that the proceeding is discontinued; 2. the Tribunal orders pursuant to s 59 of the Civil and Administrative Tribunal Act that the Owners Corporation has agreed to do the following: 1. hold all future Annual General Meetings, Extraordinary General Meetings and Executive Committee Meetings in wheelchair accessible locations; 2. purchase sound amplification equipment and ensure that the sound amplification equipment is used by attendees at all future Annual General Meetings, Extraordinary General Meetings and Executive Committee Meetings that the applicant attends; 3. permits the applicant to undertake inspections of the Owners Corporation records without attending the office of the strata manager personally and by making a written and/or email request to the strata managing agent for the provision of documents and subject to the payment of the statutory fees under the Strata Schemes Management Regulation 2010 and as amended from time to time; and 4. ensures that all written correspondence and documentation that is posted to the applicant is provided in font type size 16 at least.
These proposed orders are considerably narrower than the original consent orders sought by the parties. The Owners Corporation submitted that it has complied with its obligations under the deed by agreeing to consent orders that the parties perform all the obligations imposed by the deed. It says it is not obliged to sign different consent orders that were not agreed to as part of the deed. This submission does not acknowledge the fact that the proposed orders are a sub-set of the orders to which the Owners Corporation has already consented. I am satisfied in accordance with s 59(1)(a), that the terms of the agreed settlement are in writing, signed by the parties and lodged with the Tribunal. The agreed settlement is embodied in the deed. I am satisfied that the proposed orders are consistent with the terms of the deed and that the Owners Corporation has consented to the Tribunal making those orders.
I am also satisfied, in accordance with s 59(2), that I would have power to make these orders. Under s 108(2)(c) of the Anti-Discrimination Act, if the Tribunal finds a complaint substantiated it may "order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant". This power has been likened to the power courts have to make mandatory injunctions: Rees Rice and Allen, Australian Anti-Discrimination Law (2nd ed 2014, The Federation Press) at 840. Orders similar to those which Ms Volk requests be made have been made in other proceedings alleging disability discrimination: Hall-Bentick v Greater Union Organisation Pty Ltd [2000] VCAT 1850; Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915.

Applicant's costs application

Ms Volk applied for costs. The general rule is that each party is to pay their own costs: NCAT Act, s 60(1). Costs may only be awarded if the Tribunal is satisfied that there are "special circumstances" warranting an award of costs: NCAT Act, s 60(2). Ms Volk submitted that the "special circumstances" in this case were that the Owners Corporation had: 1. unreasonably prolonged the time taken to resolve the proceedings; (s 60(3)(b)); and 2. refused to co-operate with the Tribunal to give effect to the guiding principle to facilitate the just, quick and cheap resolution of the real issues in the proceedings; (s 60(3)(f).
The facts and circumstances on which Ms Volk relied in support of her application for costs was that the Owners Corporation refused to consent to the amended consent orders when it was required to do so under the deed. That refusal, and the Owners Corporation's application for costs, were misconceived and had no tenable basis in law.
Ms Volk's solicitor provided evidence that he sent the amended consent orders to the Owners Corporation on 19 October 2015 saying that if the matter can be resolved expediently, there may be no need to attend the hearing on 27 October 2015. The Owners Corporation did not deny that they received that communication. I find that that communication was received by the Owners Corporation's solicitor.
The provision of the deed with which Ms Volk submits that the Owners Corporation has not complied is Recital (E): The parties have agreed to take all reasonable steps necessary (including but not limited to, conferring consent) to ensure that the New South Wales Civil and Administrative Tribunal make orders set out in annexure "C" of this deed to give effect to the terms of this deed in accordance with section 59 of the Civil and Administrative Tribunal Act 2013.
The orders which Ms Volk now asks the Tribunal to make are not the orders in Annexure C to the deed, but they are consistent with the terms of the deed. By not agreeing to the amended consent orders proposed on 19 October 2015, the Owners Corporation has conducted the proceedings in a way which is responsible for prolonging unreasonably the time taken to complete the proceedings. There was no tenable basis for opposing those orders in circumstances where the Owners Corporation had previously consented to the Tribunal ordering that the parties must perform all the obligations imposed in the deed.
The Owners Corporation noted that the parties agreed to settle the matter on the basis that each party bears their own costs. Each party will bear their own costs in relation to the substantive proceedings. But, in circumstances where the Tribunal determined that it did not have power to make the consent orders initially agreed to by the parties, and the Owners Corporation has subsequently unreasonably refused to consent to orders which are within the Tribunal's power to make, it should bear Ms Volk's costs.
The respondent is to pay the applicant's costs from 19 October 2015 as agreed or, if not agreed, as assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014).

Respondent's application for costs

The Owners Corporation sought its costs from 9 September 2015, being the date that Ms Volk sought to re-agitate the proceedings. Those costs were the costs of attending two directions hearings and corresponding with both the Tribunal and Ms Volk in respect of these proceedings.
The Owners Corporation submitted that the "special circumstances" in this case were that Ms Volk had: 1. "conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceeding": s 60(3)(a) 2. lodged a claim with "no tenable basis in fact or law": s 60(3)(c) and 3. lodged a claim which was misconceived or lacking in substance: s 60(3)(e).
The facts and circumstances on which the Owners Corporation relied in support of its application for costs were that: 1. the Tribunal does not have the power to make the orders sought; 2. clause 4 of the deed of settlement provides that it can be pleaded as a full and complete defence to any relevant proceedings; 3. Ms Volk chose not to file and serve submissions in support of her case; and 4. Ms Volk was legally represented and was aware of the potential consequences of seeking to have the matter relisted.
I have rejected the first two submissions. In relation to the third and fourth submissions, I accept that Ms Volk did not file any submissions in support of her case by 4 November 2015, the date she was directed to do so. I reject Ms Volk's submission that she did not understand that she was required to take any further steps to apply to set aside or vary the decision under cl 9 of the Regulation. The Owners Corporation has been put to the unnecessary expense of writing to the Tribunal on 20 November 2015 and receiving the Tribunal's letter in response dated 30 November 2015. Nevertheless, if the Owners Corporation had acted reasonably by consenting to the Tribunal varying the 28 August 2015 orders as proposed by Ms Volk on 19 October 2015, those orders could have been made by consent at that time with no further costs being incurred.

Orders The Tribunal's decision of 18 August 2015 is varied. The varied decision is that: 1. The applicant's complaint is discontinued. 2. The respondent is to: 1. hold all future Annual General Meetings, Extraordinary General Meetings and Executive Committee Meetings in wheelchair accessible locations; 2. purchase sound amplification equipment and ensure that the sound amplification equipment is used by attendees at all future Annual General Meetings, Extraordinary General Meetings and Executive Committee Meetings that the applicant attends; 3. permit the applicant to undertake inspections of the Owners Corporation records without attending the office of the strata manager personally and by making a written and/or email request to the strata managing agent for the provision of documents and subject to the payment of the statutory fees under the Strata Schemes Management Regulation 2010 and as amended from time to time; and 4. ensure that all written correspondence and documentation that is posted to the applicant is provided in font type size 16 at least. 1. The respondent is to pay the applicant's costs from 19 October 2015 as agreed or, if not agreed, as assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014).

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: 05 January 2016

Civil and Administrative Tribunal Regulation 2013(NSW)

Strata Schemes Management Regulation 2010(NSW)

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Judgment (7 paragraphs)

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