Damiano v Capital Strata Management Services (Discrimination) - [2021] ACAT 67

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

DAMIANO v CAPITAL STRATA MANAGEMENT SERVICES (Discrimination) [2021] ACAT 67

DT 47/2020
Catchwords: DISCRIMINATION – whether the applicant has a protected attribute – disability – area of public life – direct or indirect discrimination – unfavourable treatment – whether disadvantage is because of the protected attribute – disadvantage or detriment to be determined objectively – balance of probabilities – insufficient evidence to support claim – multiple opportunities to provide supporting evidence – alternative methods to attend Owners Corporation meetings available to the applicant – application dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 54
Discrimination Act 1991 ss 5AA, 7, 8
Human Rights Commission Act 2005 ss 53E, 78

Cases cited:Australian Capital Territory v Wang [2019] ACAT 65
Cooley v Australian National University [2007] ACTDT 2
Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64
Damiano v The Owners - Units Plan No 584 & Ors [2017] ACAT 63
Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84

Tribunal:Senior Member D Kerslake
Member S Keller

Date of Orders:  20 July 2021
Date of Reasons for Decision:      20 July 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 47/2020
BETWEEN:
MARILENA DAMIANO
Applicant

AND:
CAPITAL STRATA MANAGEMENT SERVICES
Respondent

TRIBUNAL:Senior Member D Kerslake
Member S Keller

DATE:20 July 2021

ORDER

The Tribunal orders that:

The application is dismissed.
………………………………..
Member S Keller
For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

The tribunal in this case is required to determine whether Ms Marilena Damiano (Ms Damiano or the applicant) was subjected to unlawful discrimination by Capital Strata Management Services (the respondent), under the Discrimination Act 1991 (the Discrimination Act).
The applicant is the owner of a unit from which she operates a business, in a block of units managed by the respondent. On 19 November 2019, she filed a complaint with the Human Rights Commission (the HRC), asserting that she had been prevented from attending meetings of the Owners of Units Plan No 584 (the Owners Corporation) because the meetings were held at a unit on the second floor of the building, and because she has a disability that prevents her from scaling the stairs. She claimed that meetings continued to be held upstairs after she had drawn her disability to the attention of the respondent, and that she had therefore been subjected to unlawful discrimination.
On 18 August 2020, the HRC referred the applicant’s complaint to the tribunal. Having formed the view that the complaint lacked substance, the HRC had closed the complaint in accordance with section 78(2)(c)(iv) of the Human Rights Commission Act 2005 (the HRC Act). The matter was subsequently referred to the tribunal at the applicant’s request, pursuant to section 53A of the HRC Act.
At a directions hearing on 7 September 2020, the tribunal ordered each party to file a timeline of key events occurring between 1 January 2017 and 19 November 2019, when the complaint was filed with the HRC (the relevant timeframe for deciding the applicant’s claim). The applicant was also ordered to set out “each act, fact, matter, circumstance or thing” relied upon to establish her claim of unlawful discrimination, together with a document specifying the protected attribute relied upon under the Discrimination Act and a statement specifying the orders sought from the tribunal. The respondent was ordered to set out its responses to the particulars of discrimination alleged and to the orders sought by the respondent.
At a further directions hearing on 16 November 2020, the tribunal noted the materials provided and that the applicant was seeking a letter of apology, an undertaking by the respondent to address accessibility issues when organising meetings, and compensation of at least $6,000. In a (revised) timeline provided on 12 February 2021, the applicant amended the relief sought as follows:
1.       Apologetic letter.
2.       Meetings to be held in an accessible area for the applicant.
3.       $25,000 in compensation.
The matter was listed for hearing on 8 April 2021. On 22 March 2021, the applicant consulted a medical practitioner who issued a certificate advising that the applicant would be unfit “for attending court” from that date until 8 April inclusive. Taking account of the medical certificate, the tribunal decided to adjourn the proceedings. This followed an earlier adjournment of a directions hearing, also on medical advice.
Although the matter was relisted for hearing on 3 May 2021, the applicant produced a further medical certificate (dated 29 April 2021) stating that she would be “unfit for attending court” until 15 May 2021. The tribunal again adjourned, but advised that it proposed to issue written notice to each of the parties pursuant to section 54(1) of the ACT Civil and Administrative Act 2008 (the ACAT Act), indicating its intention to decide the matter without a hearing, and seeking representations in response.
A notice to that effect was issued on 6 May 2021, allowing the parties the full 21 days to respond allowed under the ACAT Act. The tribunal did not receive a response from either party. After the expiry of 21 days the tribunal determined, pursuant to section 54(2)(c), that it was in the public interest to proceed without a hearing and that sufficient information was available to determine the matter on the papers. Orders were issued accordingly.

Relevant legislation

Section 7 of the Discrimination Act sets out the attributes which the Act sets out to protect against discrimination. Disability is one of the listed protected attributes.
Section 5AA of that Act defines disability to mean:
(1) In this Act:
disability means—
(a)total or partial loss of a bodily or mental function; or
(b)total or partial loss of a part of the body; or
(c)the presence in the body of organisms that cause disease or illness; or
(d)the presence in the body of organisms that are capable of causing disease or illness; or
(e)the malfunction, malformation or disfigurement of a part of the body; or
(f)a disorder or malfunction that results in a 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; or
(h)any other condition prescribed by legislation.
(2) For this Act, disability includes—
(a)behaviour that is a symptom or manifestation of the disability; and
(b)a disability that a person may have in the future, including because of a genetic disposition to the disability; and
(c)a disability that it is thought a person may have in the future, whether or not—
(i)the person has a genetic disposition to the disability; or
(ii)there is anything else to indicate the person may have the disability in the future; and Note Disability also includes a disability that the person has or is thought to have, and a disability that the person has had in the past, or is thought to have had in the past (see s 7 (2)).
(d)reliance on—
(i)a support person; or
(ii)a disability aid; or
(iii)an assistance animal.
Section 8 of the Discrimination Act defines discrimination as follows:
(1)     For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2)     For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3)     For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
(4)     However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.
(5)     In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(a)the nature and extent of any disadvantage that results from imposing the condition or requirement; and
(b)the feasibility of overcoming or mitigating the disadvantage; and
(c)whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.’
Section 53E(2) of the HRC Act provides that if the tribunal finds that a person complained about has engaged in unlawful discrimination, it must make one or more of the following orders:
(a)     that the person complained about not repeat or continue the unlawful act;
(b)     that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c)     unless the complaint has been dealt with as a representative complaint—that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.

Summary of evidence presented

The following is a summary of the matters raised in written submissions.
The applicant
In submissions to both the tribunal and the HRC, the applicant stated that she has been diagnosed with arthritis in both knees and has difficulty climbing stairs. The documentary evidence available to the tribunal includes copies of medical certificates, and timelines submitted by the applicant: the first dated 3 February 2021 and a revised timeline submitted on 12 February 2021.
In the revised timeline, the applicant referred at paragraph 1 to a medical certificate dated 21 February 2017 confirming that “she has trouble climbing stairs”. A copy was appended at Attachment A to the timeline. The applicant advised the tribunal that she had been only able to “locate this file after lengthy discovery”, but did not explain what that process entailed. According to documents accompanying the HRC’s referral to the tribunal, the applicant had referred – in her initial complaint to the HRC – to a 2017 certificate and had claimed that she had provided a copy of this letter, at that time, to the Owners Corporation. The respondent had advised the HRC that it was not aware of any such letter, and asked to be provided with a copy. The HRC accordingly endeavoured to obtain a copy from the applicant, who did not provide it. The HRC subsequently closed the complaint in accordance with section 78(2)(c)(iv) of the HRC Act, which provides that the HRC may close a complaint if in its view the complaint lacks substance. The applicant then requested the HRC to refer the matter to the tribunal.
At paragraph 2 of the revised timeline, the applicant referred to emails which she asserted were sent to the respondent on 28 February 2017 and 10 April 2017. Copies of these emails were appended at Attachment B.
At paragraph 3, the applicant referred to a medical report dated 12 August 2016 (appended at Attachment C), indicating that she found stairs difficult to negotiate. She stated that copies of this document had previously been sent to the tribunal (and the respondent) on 9 November 2020.
At paragraph 4, the applicant referred to a telephone conversation which she says took place with one of the respondent’s officers in February 2017. She said that during that conversation she referred to injuries she had sustained as a result of an assault near her premises. She asserted that she also explained that her knees were inflamed and getting progressively worse. She stated that she followed up with an email to the respondent (and the tribunal[1]) on 1 March 2017. The applicant stated that the respondent refused to respond to her concerns.
[1] There was another matter between the parties, on foot at the tribunal at that time.
At paragraph 5, the applicant referred to two letters she said were posted to the respondent in March 2017, containing copies of 2016 and 2017 medical documents. Paragraph 5 also referred to a hand-written letter (simply dated March 2017), a copy of which the applicant appended at Attachment C. She stated that she sent this letter to the respondent at that time. The letter states that she was unable to walk upstairs as a result of an assault stated to have taken place at the back of the shops, and in the content of the letter requests that future meetings be held in an accessible place.
At paragraph 6, the applicant stated that another unit owner had witnessed her struggling up the stairs to meetings on several occasions.
At paragraph 7, the applicant stated that at a meeting of the Owners Corporation in November 2017 she requested that future meetings be held in an accessible area, but received no response from “management” or the “executive committee”.
At paragraph 8 of the timeline, the applicant referred to a document (appended at Attachment D) which she asserted is a copy of an email sent to the respondent on 31 October 2019, stating:
As you are aware my disabilities do not allow me to attend any meetings held in any premises with a staircase as the only access is breach of my human rights. [emphasis in original]
At paragraph 9, the applicant referred to four medical certificates issued at different times during 2019 (all referencing a medical condition affecting her knees), copies of which she says were sent by post to the respondent immediately after each medical appointment. Copies of these medical certificates were appended at Attachment E.
At paragraph 10, the applicant provided what she asserted was a transcript of part of a meeting of the Owners Corporation on 26 November 2019, stating that her transcript records her saying that “This meeting was meant to be held downstairs”.
At paragraph 11, the applicant referred to an email she said was sent to the respondent on 17 September 2020. A copy was appended at Attachment F. That email contained a copy of email correspondence between the applicant and Access Canberra. The correspondence was approximately three pages in length and variously questioned the legality or propriety of the conduct of meetings of the Owners Corporation. Included in the email was a reference to “Refusal to allow a meeting in an accessible area (not stairs) as I am in severe pain.”
Paragraphs 12 and 13 referred to matters that are unrelated to these proceedings.
The respondent’s submissions in reply
The respondent denied having engaged in unlawful discrimination, stating that:
(a)It does not admit that the applicant has a disability for the purpose of the Discrimination Act.
(b)Even if she does have a disability, it neither knew nor ought to have known that this was the case.
(c)Should the tribunal find that the applicant does have a disability and that its actions had the effect of disadvantaging her, (in reliance on section 8(4) of the Discrimination Act) holding the meeting in the chosen location was in any event reasonable in the circumstances.
In response to paragraph 1 of the applicant’s revised timeline, the respondent asserted that the first occasion when it received a copy of the (in its description, “alleged”) medical certificate was on 9 November 2021 (after the matter was filed with the tribunal). The respondent denied ever receiving a copy of this certificate before this date, and also did not admit that the certificate is legitimate.
In relation to paragraph 2, the respondent acknowledged that it did receive the email referred to, but stated that the email made no reference to any disability or knee problems, referring only to other injuries the applicant said she had suffered when assaulted by persons near her shop.
In relation to paragraph 3, the respondent stated that “it first received a copy of this alleged medical certificate on 9 November 2020 in these proceedings”, and denied ever receiving a copy at an earlier date.
At paragraph 4, the respondent acknowledged that there was a telephone conversation between the applicant and staff at Capital Strata Management Services, in which the applicant raised a variety of complaints. The respondent denied, however, that there was any reference in that conversation (or in the follow up email referred to) to a disability or medical condition, difficulty in climbing stairs, or that there was a request for the meeting be held in a venue accessible to the applicant.
At paragraph 5, the respondent denied ever receiving the ‘alleged’ handwritten letter dated March 2017, which the applicant claims enclosed medical certificates. The respondent did not admit that the letter was prepared or sent.
In relation to paragraph 6, the respondent stated that the unit owner referred to is not connected with the respondent and that the matter referred to is unrelated to these proceedings.
In relation to paragraph 7, the respondent denied that the applicant requested meetings to be held in an accessible location, further that the applicant did not attend any meetings of the Owners Corporation after this date, adding that even had such a request been made, the respondent has no control over the calling of meetings or their venue location, which is the responsibility of the Owners Corporation.
With regard to paragraph 8, the respondent denied ever receiving the alleged email dated 31 October 2019, asserting that the first time that the applicant made a request for an accessible venue was on 20 November 2019, through tribunal proceedings. The respondent maintained that it had never previously received any communications from the applicant about the medical condition preventing her from attending meetings of the Owners Corporation.
In response to paragraph 9, the respondent stated that it “does not admit the allegations made.” (We take this to mean that the respondent denies that the copies of the medical certificates in question were ever received).
In response to paragraph 10, the respondent stated that the applicant never provided it with a recording of the comments she said she had transcribed, but also stated that, in any event, the claims relate to a meeting which was outside the timeframe covered by these proceedings.
In relation to paragraph 11, the respondent stated that the matter referred to therein was also outside the timeframe and therefore irrelevant to these proceedings.

Relief claimed by the applicant

The applicant seeks the following relief:
1.       Apologetic letter;
2.       Meetings to be held in an accessible area for the applicant; and
3.       $25,000 in compensation.[2]
[2] Revised timeline provided 12 February 2021
The extent of relief that might be granted by the tribunal is set out in section 53E of the HRC Act. It also sets out the matters to be considered when making an order if the Tribunal finds that discrimination has occurred. Section 53E(2) provides that the Tribunal must make one or more of the orders mentioned in the subsection, including that the person complained about pay a stated amount of compensation for any loss or damage suffered by the other person because of the discrimination.

The decision

The Discrimination Act makes certain types of discrimination unlawful. To succeed in an action under that Act, a complainant must establish that he or she has a protected attribute under section 7, has been subjected to an act of direct or indirect discrimination as per the definition in section 8, and that the discriminatory act took place in an area of public life specified in Part 3.

It is not sufficient for the applicant to demonstrate that she has a medical condition that gives rise to difficulty walking up stairs. In applying the relevant provisions of the Discrimination Act, it would also be necessary for the tribunal to be satisfied that the respondent was aware, or ought to have been aware, of this attribute.
Whether the applicant has a protected attribute under section 7 of the Discrimination Act
‘Disability’ is a protected attribute under section 7(1)(e) of the Discrimination Act. The Tribunal is satisfied that the applicant’s medical certificates establish that she has a total or partial loss of the function of her knees, and thus meets the requirements for ‘disability’ under section 5AA of the Discrimination Act. The Tribunal is therefore satisfied that this is a protected attribute.
Whether the discriminatory act took place in an area of public life specified in Part 3 of the Discrimination Act
‘Access to premises’ is included as an area of public life under section 19 of the Discrimination Act. The Tribunal is satisfied that the Owners Corporations meetings held at a unit in the building thus meet the requirements for an area of public life specified in Part 3 of the Discrimination Act.
Whether the applicant was subject to an act of direct or indirect discrimination as per the definition in section 8 of the Discrimination Act
Although the applicant sought to characterise the respondent’s treatment of her as direct discrimination, the essential facts upon which she relies, if proven, may equally be capable of being characterised as indirect discrimination. As the tribunal noted in Andreopoulos v University of Canberra:
Although at one time direct discrimination and indirect discrimination were considered mutually exclusive categories of discrimination under the legislation as it stood at the time, amendments to section 8 by the Discrimination Amendment Act 2016 make it clear that discrimination may occur when a person discriminates directly or indirectly, or both, against a person. They are not mutually exclusive and may arise out of the same set of circumstances.[3]
[3] Andreopoulos v University of Canberra [2020] ACAT 95 at [14]; See also Australian Capital Territory v Wang [2019] ACAT 65 at [159]
It is necessary for the Tribunal itself to consider whether the evidence establishes that direct or indirect discrimination has occurred. The applicant’s own characterisation of the respondent’s conduct as direct discrimination is not determinative.[4]
[4] [2020] ACAT 95 at [14]
Section 53CA(2) of the HRC Act provides for the onus of proof where a complaint is referred to the ACAT about direct or indirect discrimination.
In relation to direct discrimination, the applicant must establish that the respondent’s treatment of her was unfavourable and this unfavourable treatment was because of her physical disability, based on evidence before the Tribunal. The presumption may be rebutted by the respondent if it establishes any unfavourable treatment was not because of the claimed protected attribute.
Unfavourable treatment is fundamental to a claim for direct discrimination. The Discrimination Act does not include any definition of ‘unfavourable’ or ‘unfavourable treatment’. However, a body of case law has developed which gives meaning to the term. In Prezzi, Patricia Anne and Discrimination Commissioner President Curtis said:
The ACT Discrimination Act... does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with. If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.[5]
[5] Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]; Affirmed in Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379; Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84
Unfavourable treatment then is treatment that is disadvantageous or detrimental to the complainant. In Cooley and the Australian National University,[6] a claim brought in the then ACT Discrimination Tribunal, Deputy President Peedom said:
A detriment involves some loss, or damage or injury (see Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 and Sivananthan v Commissioner of Police [2001] NSW ADT 44 at 41) and is broad enough to cover any disadvantage, as long as it is real and not illusory. Whether a detriment has been suffered is to be determined objectively and not by the subjective perceptions of either the complainant or the Respondent. (see Ellis v Mount Scorpus Memorial College [1996] VADT 16 (29 March 1996)).[7]
[6] [2007] ACTDT 2
[7] Cooley and Australian National University [2007] ACTDT 2 at [44]
For indirect discrimination, the applicant must establish that the respondent’s requirements had, or were likely to have, the effect of disadvantaging her. Again, this must be based on evidence that enables the Tribunal to decide, in the absence of any other explanation, that the effect of disadvantaging her was because of her physical disability. The presumption may be rebutted if the respondent establishes that the requirement was reasonable in the circumstances, or that the effect of disadvantaging the applicant was not because of her protected attribute.
The issue of unfavourable treatment is a question of fact with an objective rather than comparative test. In Kidman v Casino Canberra Ltd,[8] the tribunal said:
The Discrimination Act does not define ‘unfavourable treatment’ or what is meant by ‘treats or proposes to treat another person unfavourably’. The Discrimination Act does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. In other words, it does not ask: “were you treated less favourably than others?” It asks, “were you treated unfavourably?” This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is ‘unfavourable treatment’ and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.[9]
[8] [2020] ACAT 50 at [22]
[9] [2020] ACAT 50 at [22] citing Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64 at [6]-[7]; See also Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]
‘Unfavourable treatment’ may encompass acts or omissions which result in some detriment, being loss, damage or injury.[10]
[10] Cooley v Australian National University [2007] ACTDT 2 [44]; See also Prezzi v the Discrimination Commissioner [1996] ACTAAT 132 at [22]; affirmed by the Federal Court in Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [54]-[57]
The words ‘effect’ and ‘disadvantaging’ are not defined in the Discrimination Act. In Australian Capital Territory v Wang,[11] the tribunal adopted the following meaning of ‘disadvantage’ discussed in Prezzi, Patricia Anne and Discrimination Commissioner:
22. While the term “disadvantage” might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison, as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines “disadvantage” as “absence or deprivation of advantage; any unfavourable circumstance or condition”. The primary meaning of “advantage” does not import comparison; the same dictionary give it as “any state, circumstance, opportunity or means specially favourable to success, interest or any desired end”.
…
24 It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant’s interests or are adverse to the complainant’s interests, and whether the dealing has occurred because of a relevant attribute of the complainant. The same inquiry must be made where what is in issue is a condition or proposed condition of dealing with the complainant by the person who is the subject of a complaint.[12]
Was the applicant directly discriminated against?
[11] [2019] ACAT 65 at [185]
[12] Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22], [24]; approved by Beaumont ACJ (with whom Higgins and Gyles JJ agreed) in Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
In order for a complaint of direct discrimination to succeed, the evidence must show that the applicant was adversely treated because of her protected attribute – in this case, her physical disability.
For a direct discrimination complaint to succeed in the context of the request for the meetings to be held in an accessible location, the evidence must show that the respondent’s decisions in relation to the location of each meeting, or refusal to change the location, were because of the applicant’s protected attribute. The evidence before the Tribunal does not support this conclusion.
The initial decision – 27 October 2016
The respondent submits that the Owners Corporation passed a resolution on 27 October 2016 that all meetings were to be held at a unit on the second floor of the building free of charge, in lieu of the tenants of that unit being permitted to have signage on common property and use of common property electricity for the signage.[13] This decision falls outside the relevant timeframe that is the subject of these proceedings.
[13] Respondent’s timeline of key events submitted on 5 March 2021, page 1
That said, even if the resolution of 27 October 2016 fell within the relevant timeframe, the Tribunal could not be satisfied that the Owners Corporation was aware of the applicant’s disability at that time, as it was prior to the first medical certificate submitted by the applicant dated 21 February 2017.[14] The Tribunal is not satisfied that the initial decision in relation to the location of the meetings was because of the applicant’s protected attribute of a physical disability.
The first meeting – 15 February 2017
[14] Annexure A to the applicant’s revised timeline
The first meeting listed by the applicant in her timeline took place on 15 February 2017.
The first available medical certificate is dated 21 February 2017.[15]
[15] Annexure A to the applicant’s revised timeline
As this certificate is dated six days after the first meeting, the Tribunal is not satisfied that either the respondent or Owners Corporation were aware of the applicant’s disability at any time prior to the first meeting. The Tribunal is therefore not satisfied that the respondent or Owners Corporation refused to change the location or accessibility of the first meeting because of the applicant’s protected attribute of a physical disability.
The second meeting – 9 November 2017
The second meeting listed by the applicant in her timeline took place on 9 November 2017.
The applicant states that she sent the medical certificate dated 21 February 2017 to the respondent by post in March 2017. The respondent has denied receiving any such communication, stating that the first it became aware of this certificate was during the course of these proceedings.[16] The applicant provided a copy of a handwritten letter dated “March 2017”, which she claims to have sent with various medical certificates,[17] but has not provided any further evidence to corroborate that this material was posted (such as a photocopy of the envelope, receipt from the post office or postal slip) despite numerous opportunities within the course of the proceedings.
[16] Respondent’s written response submitted on 5 March 2021, page 1
[17] Annexure C to the applicant’s revised timeline
In the absence of the abovementioned corroborative evidence, the Tribunal is not satisfied that the respondent or Owners Corporation received the medical certificate dated 21 February 2017 prior to the second meeting.
Similarly, the Tribunal notes the applicant’s email sent to (amongst others) several employees of Capital Strata and their legal representatives dated 28 February 2017 (and forwarded again on 10 April 2017)[18]. This email does not mention her physical disability, does not make any request for the location or accessibility of any future meetings to be changed based on her physical disability, nor does it refer to or attach the medical certificate dated 21 February 2017.
[18] Annexure B to the applicant’s revised timeline
The Tribunal is therefore not satisfied, on the balance of probabilities, that either the respondent or the Owners Corporation were aware of the applicant’s disability at any time prior to the second meeting. The Tribunal is also not satisfied that the respondent or Owners Corporation refused to change the location or accessibility of the second meeting because of the applicant’s protected attribute of a physical disability.
The third meeting – 16 August 2018
The third meeting listed by the applicant in her timeline took place on 16 August 2018.
The applicant alleges that during the course of the second meeting on 9 November 2017, she requested that meetings be held in an accessible area due to her disability preventing her attending the meetings held in any premises accessible only by staircase. The respondent denies that this request was made at this time. The applicant has not provided any evidence to support her allegations, such as meeting notes or transcripts.
The applicant has also not provided any evidence dated between 9 November 2017 and 16 August 2018 supporting her contention that she advised the respondent or the Owners Corporation of her physical disability or that she requested the location or accessibility of the third meeting be changed to accommodate her physical disability. As a result, the Tribunal is not satisfied that the respondent or Owners Corporation were aware of the applicant’s disability at any time prior to the third meeting. The Tribunal is therefore not satisfied that the respondent or Owners Corporation refused to change the location or accessibility of the third meeting because of the applicant’s protected attribute of a physical disability.
The fourth meeting – 26 November 2019
The fourth meeting listed by the applicant in her timeline took place on 26 November 2019. The meeting itself is outside the relevant timeframe of her complaint to the HRC, the subject of these proceedings.
The Tribunal notes, however, the applicant’s claim that she sent an email to the respondent on 31 October 2019 stating:
As you are aware my disabilities do not allow me to attend any meetings held in any premises with a staircase as the only access is breach of my human rights.[19] [emphasis in original]
[19] Annexure D to the applicant’s revised timeline
Any such correspondence would fall within the relevant timeframe. The respondent, for its part, denied ever receiving this email and questioned its validity in submissions to the Tribunal.[20] The respondent maintained that the first occasion it was made aware of any concern the applicant had in attending meetings, was on 20 November 2020 at a directions hearing conducted by Member Trickett in separate proceedings before the tribunal.[21]
[20] Respondent’s written response submitted on 5 March 2021, page 3
[21] Damiano v The Owners - Units Plan No 584 & Ors [2017] ACAT 63
The Tribunal notes the respondent’s questioning of the validity of the email in question, but does not deem it necessary to form a definitive view, one way or the other, on this point. We note the proximity of the applicant’s claimed email and the date set down for the fourth meeting. We also note that during the directions hearing on 20 November 2020, the respondent maintained that it was unable to change the location of the fourth meeting due to legislated notice requirements. Further, the respondent confirmed that the applicant was able to attend by phone (which was appropriately deemed by Member Trickett to be a reasonable alternative).
Taking these factors into account, we are satisfied that the decision not to change the location of the fourth meeting was not because of the applicant’s protected attribute of a physical disability. The Tribunal is also satisfied that that the respondent provided a reasonable alternative of attending by phone.
The applicant has not provided the specific dates of the ‘other meetings’ referred to in her timeline despite being granted numerous opportunities over the course of these proceedings. The respondent denied that there were any other meetings and further denied the applicant attended or sought to attend any other meeting within the relevant timeframe. In the absence of evidence that there were ‘other meetings’, the Tribunal is unable to make a determination with respect to same.
In summary, the Tribunal accepts that the decision to hold the meetings on the second floor could, depending upon the other circumstances, amount to unfavourable treatment. We do not accept, however, that there is any evidence the respondent knew or ought to have known about the applicant’s protected attribute prior to those meetings held during the relevant timeframe and before 20 November 2019. We also do not accept the respondent refused to change the location or accessibility of the meetings up to and including the fourth meeting on 26 November 2019, because of the applicant’s protected attribute of a physical disability. This treatment therefore does not amount to direct discrimination.
The Tribunal is not satisfied the applicant was subjected to direct discrimination in relation to her request for the meetings to take place in an accessible location. We also consider this part of the complaint in the context of indirect discrimination below.
Was the applicant indirectly discriminated?
We have also considered whether the applicant was indirectly discriminated against in this context: whether the decision to refuse to hold the meetings in an accessible location to accommodate her physical disability and instead require that she climb stairs to attend the meetings, disadvantaged her because of her protected attribute. The applicant says that this requirement caused her financial, physical and emotional stress.
We accept the applicant’s evidence that she felt disadvantaged as result of having to climb stairs to attend the meetings. However, in determining whether the applicant has suffered a detriment or disadvantage because of the requirement that she climb stairs to attend the meeting, the Tribunal must determine objectively whether a detriment has been suffered and not rely entirely on the subjective perceptions of either the applicant or the respondent.
The applicant has conceded in her revised timeline that she attended the first, second and fourth meetings listed in her timeline. She also conceded that she did not attend the third meeting because she did not know it was taking place as, on her assertions, she was “not invited”.
The applicant has not provided any evidence that, within the relevant timeframe, she was disadvantaged from the condition or requirement that the meeting be held on the second floor, despite numerous opportunities being granted to her within the course of these proceedings. We note the medical certificate dated 28 November 2019 indicates that she suffered an aggravation after attending the fourth meeting on 26 November 2019.[22] This evidence, however, and the dates referred to therein, fall outside the relevant timeframe of the applicant’s complaint to the HRC, the subject of these proceedings.
[22] Annexure E to the applicant’s revised timeline

Further, the Tribunal notes the applicant conceded that several members would attend the meetings by phone[23] and thus we accept she was aware or ought to have been aware that this option was available to her.
[23] Annexure B to the applicant’s revised timeline
The Tribunal therefore does not find that the evidence objectively supports the assertion that the applicant could not attend the meetings either in person or by phone.
We therefore do not find that the disadvantage alleged by the applicant meets the objective threshold. We do not accept that the applicant could not attend the meetings, when the evidence clearly suggests that she was able to do so in a variety of ways. The Tribunal is not satisfied that the applicant was the subject of indirect discrimination.
Was it reasonable?
Even if we found that she was disadvantaged, in order for indirect discrimination to have occurred we must determine whether the condition or requirement to hold the meetings in a location that involved her climbing stairs was reasonable in the circumstances. For completeness, we consider this below.
During the relevant timeframe, the Tribunal accepts that the respondent was instructed to hold its meetings on the second floor of the building. The Tribunal accepts that the meetings were held at that location due to a resolution passed by the Owners Corporation on 27 October 2016.[24]
[24] Respondent’s submissions, page 5
The respondent referred the tribunal to the decision of Senior Member Orr in Damiano v The Owners - Units Plan No 584 & Ors [2017] ACAT 63 in which it was noted that Ms Damiano was present at the meeting on 27 October 2016, and while she “raised issues in relation to these decisions” she “did not challenge them”.[25] The Tribunal notes that Senior Member Orr’s decision was delivered after the first meeting on 15 February 2017 and before the second meeting on 9 November 2017. The Tribunal notes the decision dealt extensively with the issue of stairs on the property and the resolution passed on 27 October 2016. However, the decision makes no reference to the applicant’s disability or inability to attend meetings due to her disability.
[25] [2017] ACAT 63 at [49]
In assessing whether the condition or requirement for the meeting to be held in a second floor unit was reasonable in the circumstances, we must turn our mind to the following considerations:
(a)     the nature and extent of any disadvantage that results from imposing the condition or requirement; and
(b)     the tribunal accepts the feasibility of overcoming or mitigating the disadvantage; and
(c)     whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.[26]
[26] Discrimination Act section 8(5)
The applicant has not provided any evidence that, within the relevant timeframe, she was disadvantaged from the condition or requirement that the meeting be held on the second floor. She conceded that she attended meetings to which she was invited and of which she was aware.
Moreover, the Tribunal accepts the respondent’s evidence that there were alternative options available, including attendance by phone. The Tribunal also notes the respondent’s evidence that the applicant attended the fourth meeting in person despite alternative arrangements being made for her to attend by phone.
The Tribunal is therefore not satisfied that the applicant was disadvantaged by the decision to hold the meetings on the second floor of the building over the course of the relevant timeframe.
Further, regardless of the applicant’s perceptions of the choice of location for the meeting, the Tribunal accepts the Owners Corporation held the view that the location chosen for the meeting was operationally desirable. We accept that while the applicant had medical evidence to support her accessibility requirements, even when those requirements were adhered to, it was her preference to attend in person. It follows that, however desirable it was for her to attend in person, the respondent was not obliged to accede to that given her needs were reasonably accommodated for her to attend all meetings by phone.
In all of the circumstances of this case, the decision to hold the meetings in a unit on the second floor was reasonable.

Conclusion

The Tribunal’s task here is to determine on the evidence and on the balance of probabilities whether the applicant, because of her physical disability, was discriminated against by the respondent in being refused access to the Owners Corporation meetings. We are not so satisfied.
The applicant was granted numerous opportunities to provide evidence in support of her allegations both during the course of proceedings before the HRC and before the Tribunal.
Based on the evidence before the Tribunal and the parameters of the Discrimination Act, we are not satisfied that the applicant was denied access to the Owners Corporation meetings because of her protected attribute, or that in failing to give her access to the Owners Corporation meetings because of her protected attribute, she was disadvantaged or that the respondent’s requirements were unreasonable in the circumstances. The applicant has not provided evidence which on the balance of probabilities supports her claim that these decisions were based on, or taken with knowledge of, her protected attribute, as opposed to being based on operational need.
Further, we are not satisfied that the respondent received any of the applicant’s alleged requests to change the location or accessibility of the Owners Corporation meetings prior to 20 November 2019. It follows that we are not satisfied that the respondent denied any of the applicant’s alleged requests to change the location or accessibility of the Owners Corporation meetings prior to 20 November 2019.
Moreover, the Tribunal is satisfied that at all relevant times there were alternative means of access to the Owners Corporation meetings (that being by phone). We are also satisfied that the applicant was aware of the alternative means of access to the Owners Corporation meetings and failed to avail herself of these arrangements throughout the course of the relevant timeline and also on 20 November 2019, prior to the meeting on 26 November 2019. We also accept the respondent’s evidence that despite the appropriate and reasonable accessibility accommodations being made for her attendance at the meeting on 26 November 2019, that the applicant attended in person in any event of her own accord.
We are of the view therefore that the decision to hold the Owners Corporation meetings in a unit on the second floor of the building during the relevant timeframe was reasonable in the circumstances and therefore not discriminatory.
The applicant was not subjected to discrimination by the respondent over the course of the relevant timeline and the application is dismissed.
………………………………..
Member S Keller
For and on behalf of the Tribunal

Date(s) of hearing

On the papers