Araya v Owners Corporation SP65717 - [2021] NSWCATAD 5

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Araya v Owners Corporation SP65717 [2021] NSWCATAD 5
Hearing dates: 28 October 2020
Date of orders: 11 January 2021
Decision date: 11 January 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Prof J Goodman-Delahunty, General Member
Decision:
The application is dismissed.

Catchwords:
EQUAL OPPORTUNITY – Disability discrimination – Whether owners corporation discriminated against disabled resident and her husband by enforcing by-law prohibiting parking in disabled visitors parking space – Whether Owners Corporation provided services – Whether first applicant’s disability was a reason for differential treatment - Whether Tribunal entitled to take judicial notice of certain matters

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Strata Schemes Management Act 2015 (NSW)

Cases Cited:
Araya v Owners Corporation SP65717 [2020] NSWCATAD 104
Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165
Bonella & Ors v Wollongong City Council [2001] NSWADT 194
Catholic Education Office v Clarke [2004] FCAFC 197
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Garriock v Football Federation Australia [2016] NSWCATAD 63
Hamed v Director General, Department of Education [2007] NSWADT 43
IW v City of Perth [1997] HCA 30; (1998) 191 CLR 1
Khanna v Director General, NSW Department of Education & Communities [2012] NSWADT 92
Lance Tyrrell v Coles Supermarkets Australia Pty Ltd [2020] NSWCATAD 57
Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145
Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174
State of NSW (NSW Police Force) v Whitfield [2012] NSWADTAP 27
Thomas v Mowbray (2007) 233 CLR 307
Walker v State of Victoria [2011] FCA 258
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16
Wright v Commissioner of Police [2014] NSWCATAP 67

Texts Cited:
None Cited

Category: Principal judgment
Parties: Alicia Araya (First Applicant)
Alexandre Araya (Second Applicant)
Owners Corporation SP65717 (Respondent)
Representation: Solicitors:
Applicants (Self-Represented)
J McGrath (Michael Roberts Strata Management Services Pty Ltd) (Respondent)

File Number(s): 2019/00401131
Publication restriction: Nil

REASONS FOR DECISION

These proceedings involve the issue of whether an owners corporation discriminated against the applicant residents on the ground of disability, by not permitting them to use the disabled visitors’ parking space and by enforcing a by-law which prohibited them from using that parking space.
Mr and Mrs Araya claimed that the Owners Corporation directly discriminated against them by pursuing them for parking in the disabled visitors’ parking space, whilst not taking comparable action in respect of other residents who parked in visitors’ parking spaces. They also claimed that the Owners Corporation indirectly discriminated against them by requiring them to comply with the requirement not to park in visitor car spaces,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWCATAD 5
Decision Date: 11 January 2021

CaseChat Overview and Summary

Araya and another v Owners Corporation SP65717 involved a dispute between the applicants, who are disabled residents, and the Owners Corporation regarding the enforcement of a by-law prohibiting parking in disabled visitors' parking spaces. The applicants sought relief from the Civil and Administrative Tribunal (NCAT), which was dismissed, and they now appeal to the Supreme Court of New South Wales. The applicants argued that the Owners Corporation discriminated against them by enforcing the by-law, which they claimed contravened the Anti-Discrimination Act. They also argued that the Owners Corporation provided services and that the first applicant's disability was a reason for the differential treatment.

The court had to determine whether the Owners Corporation discriminated against the applicants in contravention of the Anti-Discrimination Act and whether the NCAT was entitled to take judicial notice of certain matters. The court found that the Owners Corporation did not discriminate against the applicants and that the NCAT was entitled to take judicial notice of the relevant by-law. The court also found that the Owners Corporation did not provide services and that the first applicant's disability was not a reason for the differential treatment.

The court dismissed the application and held that the Owners Corporation did not contravene the Anti-Discrimination Act by enforcing the by-law prohibiting parking in disabled visitors' parking spaces. The court also held that the NCAT was entitled to take judicial notice of the relevant by-law and that the Owners Corporation did not provide services. The court found that the first applicant's disability was not a reason for the differential treatment. The application was dismissed with costs.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Araya v Owners Corporation SP65717 [2021] NSWCATAD 5
Hearing dates:	28 October 2020
Date of orders:	11 January 2021
Decision date:	11 January 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member Prof J Goodman-Delahunty, General Member
Decision:	The application is dismissed.
Catchwords:	EQUAL OPPORTUNITY – Disability discrimination – Whether owners corporation discriminated against disabled resident and her husband by enforcing by-law prohibiting parking in disabled visitors parking space – Whether Owners Corporation provided services – Whether first applicant’s disability was a reason for differential treatment - Whether Tribunal entitled to take judicial notice of certain matters
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Strata Schemes Management Act 2015 (NSW)
Cases Cited:	Araya v Owners Corporation SP65717 [2020] NSWCATAD 104 Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 Bonella & Ors v Wollongong City Council [2001] NSWADT 194 Catholic Education Office v Clarke [2004] FCAFC 197 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Garriock v Football Federation Australia [2016] NSWCATAD 63 Hamed v Director General, Department of Education [2007] NSWADT 43 IW v City of Perth [1997] HCA 30; (1998) 191 CLR 1 Khanna v Director General, NSW Department of Education & Communities [2012] NSWADT 92 Lance Tyrrell v Coles Supermarkets Australia Pty Ltd [2020] NSWCATAD 57 Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 Norrie v NSW Registrar of Births Deaths and Marriages [2013] NSWCA 145 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 State of New South Wales v Amery [2006] HCA 14; (2006) 230 CLR 174 State of NSW (NSW Police Force) v Whitfield [2012] NSWADTAP 27 Thomas v Mowbray (2007) 233 CLR 307 Walker v State of Victoria [2011] FCA 258 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16 Wright v Commissioner of Police [2014] NSWCATAP 67
Texts Cited:	None Cited
Category:	Principal judgment
Parties:	Alicia Araya (First Applicant) Alexandre Araya (Second Applicant) Owners Corporation SP65717 (Respondent)
Representation:	Solicitors: Applicants (Self-Represented) J McGrath (Michael Roberts Strata Management Services Pty Ltd) (Respondent)
File Number(s):	2019/00401131
Publication restriction:	Nil