GRD v INA Operations Trust Pty Ltd t/as Eighth Gate Tomaga Wairo Park Trust

[2025] NSWCATAD 127

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GRD v INA Operations Trust Pty Ltd t/as Eighth Gate Tomaga Wairo Park Trust [2025] NSWCATAD 127

Hearing dates:

10 – 11 October 2024

Date of orders:

3 June 2025

Decision date:

03 June 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member
S Davison, Member

Decision:

The complaints of unlawful disability discrimination and of victimisation are dismissed.

Catchwords:

HUMAN RIGHTS – Discrimination – disability – provision of services – claim not substantiated

HUMAN RIGHTS – Victimisation – claims not substantiated

Legislation Cited:

Anti-discrimination Act 1977 (NSW), ss 4A, 49A, 49B, 49M, , 50(1), 93C(a), , 104

Civil and Administrative Tribunal Act 2013 (NSW), s 38

Companion Animals Act 1998 (NSW), s 5

Disability Discrimination Act 1992 (Cth), s 9(2)

Holiday Parks (Long-Term Casual Occupation) Act 2002 (NSW)

Cases Cited:

Carroll v Department of Family and Community Services [2015] NSWCATAD 82

Evans v McConaghy Shopping Centres Pty Ltd [2022] NSWCATAD 406

Grass v Voyager Tennis Pty Ltd [2023] NSWCATAP 168

Nicholls and Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Penhall-Jones v State of New South Wales [2007] FCA 925

Purvis v State of New South Wales (2003) 217 CLR 92

Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808

Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91

Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44

Tropoulos v Journey Lawyers Pty Ltd [2019] FCA 436; (2019) 287 IR 363

Texts Cited:

None Cited

Category:

Principal judgment

Parties:

GRD (Applicant)
INA Operations Trust Pty Ltd t/as Eighth Gate Tomaga Wairo Park Trust (Respondent)

Representation:

Applicant (Self-represented)
A Greer (Operations Manager, INA Operations Trust Pty Ltd) (Respondent)

File Number(s):

2023/00453409

Publication restriction:

Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a), the disclosure of the name of the Applicant in these proceedings and the names of her spouse and her children is prohibited.
Pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(c), the publication of evidence given before the Tribunal to the extent it may identify the Applicant, her spouse or her children is restricted to the parties.

REASONS FOR DECISION

Background

1. The Applicant in this matter has a child with a disability. To prevent identification of the child, we refer to the Applicant in these reasons as GRD or ‘the Applicant’, and we refer to other members of GRD’s family by their relationship to GRD, where necessary.

2. These proceedings involved complaints made by GRD that she was subjected to unlawful discrimination on the basis of her son’s disability in the provision of goods and services, and that she suffered from victimisation in connection with her initial complaint.

3. The complaints were referred to the Tribunal by a delegate of the President of the Anti-Discrimination Board of NSW (ADNSW), pursuant to s 93C(a) of the Anti-Discrimination Act 1977 (NSW), having formed the view that the complaints could not be resolved by conciliation.

4. The Respondent, INA Operations Trust Pty Ltd trading as Eighth Gate Tomaga Wairo Park Trust (INA), operates a holiday park called Ingenia Holidays Wairo Beach, located near Lake Tabourie in New South Wales.

5. As part of that operation, INA enters into agreements with people who own holiday cabins, allowing long-term casual occupation of various sites in the holiday park. GRD and her spouse entered into such an arrangement, which INA subsequently terminated, relying on a without-cause term. The circumstances that led to the termination of the arrangement, and the actions taken by INA afterwards, are the relevant factual controversies in these proceedings.

6. From around August or September 2023, GRD’s son has been accompanied by a dog on family visits to the park. In the material filed by GRD in July 2024, she referred to the dog as a “service animal in training.”

The legislative framework

Discrimination

7. The Anti-Discrimination Act, ss 49B(1) and 49B(2) set out what constitutes discrimination on the grounds of disability. The section provides:

S 49B What constitutes discrimination on the ground of disability

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator —

(a) on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

8. The Anti-Discrimination Act, s 49M sets out what constitutes discrimination in the provision of goods and services as follows:

49M Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability —

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

9. The role of the Tribunal in discrimination matters is to determine whether:

1. the alleged discriminatory conduct is proven to the requisite standard;

2. then determine whether a statutory defence, if raised, has been proven; and

3. where the conduct is proven and the defence fails, to determine the appropriate remedy.

10. Where an act was done for more than one reason, an applicant will be successful in relation to a claim of unlawful discrimination if they can demonstrate that one of the reasons consists of unlawful discrimination. That is so even where the unlawful discrimination reason is not the dominant or substantial reason: Anti-Discrimination Act, s 4A; Purvis v State of New South Wales (2003) 217 CLR 92 at 102, 144.

11. The onus of proof rests with the Applicant in these proceedings to establish her claim on the balance of probabilities: Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 at [40].

12. A respondent has a responsibility to put before the Tribunal any evidence which they consider will assist their defence of the claim. That responsibility does not shift the onus to the respondent, but rather it reflects the practical way in which matters in this Tribunal are conducted.

13. We note in this case that the Respondent does not seek to rely on any of the defences or exceptions under the Anti-Discrimination Act. Had it done so, it would have had the onus to prove those defences or exceptions: Anti-Discrimination Act, s 104.

Victimisation

14. It is unlawful to victimise a person because they have sought to advance a complaint of unlawful discrimination truthfully and in good faith. In that regard, the Anti-Discrimination Act, s 50(1), relevantly provides:

50   Victimisation

(1)  It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has—

(a)  brought proceedings against the discriminator or any other person under this Act,

(b)  given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c)  alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d)  otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

15. There are three elements the Applicant must establish in order to substantiate of a complaint of unlawful victimisation. Those elements are that the:

1. complainant did, or intends to, or is suspected to have done or intended to do, any one or more of the things listed in s 50(1)(a) to (d) of the Anti-Discrimination Act, and the respondent knows or suspects that the complaint has or intends to do one or more of those things;

2. respondent discriminator subjected the complainant to “detriment”, which has been interpreted to mean, objectively, a loss, damage or injury that is real and not trivial: Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [40]-[43]; and

3. detriment referred to in the second element above, must have occurred “on the ground that” or was caused as a result of the complainant having done or having intended to do one or more of the things listed in s 50(1)(a) to (d): Nicholls and Nicholls at [37]; see also Tropoulos v Journey LawyersPty Ltd [2019] FCA 436; (2019) 287 IR 363 at 475 [323] and Penhall-Jones v State of New South Wales [2007] FCA 925 (in the context of equivalent Commonwealth anti-discrimination legislation).

Also see relevant authorities such as Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at 78,986; Nicholls and Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [8]; Carroll v Department of Family and Community Services [2015] NSWCATAD 82 at [24].

16. Consistent with the text of s 50, in considering a claim for victimisation, the Tribunal does not have to make a finding of unlawful discrimination under the Anti-Discrimination Act. Rather, the Tribunal’s role is to determine whether the allegation of discrimination “would amount” to a contravention if made out: Grass v Voyager Tennis Pty Ltd & [2023] NSWCATAP 168 at [31].

Nature of the relevant disability

17. The term “disability” includes past, future and presumed disability: Anti-Discrimination Act, s 49A. That is relevant here because the earliest diagnosis of the disabilities of the Applicant’s son was not received until February 2023, just before the first year of the contract under which INA provided the services that are the subject of these proceedings. He did not receive a diagnosis of autism spectrum disorder until after the first instance of the complained conduct.

18. There was no dispute that through the course of 2023, GRD’s son had received a diagnosis of hypermobility syndrome/global hypermobility, global delay and that, later in 2023, he received a further diagnosis of autism spectrum disorder.

19. There was also no dispute that from about August or September 2023, GRD’s son was accompanied to the holiday park by a dog. GRD’s submissions filed in July 2024 suggest that in August and September 2023 the dog was not, in fact, an assistance animal. That is, the dog did not meet the definitional requirements under s 5 of the Companion Animals Act 1998 (NSW) and s 9(2) of the Disability Discrimination Act 1992 (Cth). Those definitional requirements include that the animal be accredited or trained.

20. As well as this concession, in her July 2024 submissions GRD provided the Tribunal with a bundle of documents which included what she described as a “service animal training certificate”. However, that document was a certificate dated 14 September 2023 issued by Walky’s Dog Training Academy (WDTA) which was accompanied by a covering email from the same business. The WDTA covering email referred to the dog having “successfully completed the WDTA puppy school program” and did not refer to the dog having been trained or accredited as an assistance animal.

21. Attending puppy training is not the same as receiving or completing training to be an assistance animal. The legislative definitions are flexible but do not contemplate that an animal that is not accredited or, alternatively, one that has not completed its training to become an assistance animal, can be considered an assistance animal: Evans v McConaghy Shopping Centres Pty Ltd [2022] NSWCATAD 406 at [7].

22. Accordingly, while we find that GRD’s son was, at all relevant times, a person with a disability under the Anti-Discrimination Act, we are not satisfied that the dog was, at the relevant time, an assistance animal under the Companion Animals Act or the Disability Discrimination Act.

The complaints of discrimination and victimisation

23. In referring the complaint to the Tribunal, the delegate of the President of the Anti-Discrimination Board summarised the allegations in the complaint made by GRD, and then the respective positions of INA and GRD in reply, in the following passages:

In summary the complainant alleges:

They own a cabin within a holiday park and no pets are allowed.

Her … son has autism spectrum disorder and has an emotional companion dog. They brought the dog to the cabin on the weekend of 1 September 2023, the dog always staying inside.

On 3 October, they received a letter from the respondent terminating their occupation agreement without reason, and that they had until 23 January 2024 to vacate the park.

The respondent agreed that they could sell the cabin and a buyer was found. However, the respondent postponed settlement (originally scheduled for 4 December 2023) and then rescinded their right to sell the cabin, ordering them to remove the cabin from the lot.

The respondent was aware the complainant had lodged a complaint with ADNSW.

On 11 and 13 December 2023, ADNSW wrote to the respondent seeking a written response to the complaints. Responses were received on 12 and 13 December 2023, the respondent submitting that:

They were not informed about the complainant’s son’s disability and the need for a companion animal. The complainant has admitted to keeping the dog indoors and they were unaware of its existence.

Termination of the occupation agreement was without reason and allowed under the Long Term Casual Occupants Act.

While the termination required vacant possession, the respondent in good faith allowed the complainant to sell the cabin. However, the sale cannot proceed as the complainant refuses to pay her site fees, which are in arrears.

On 20 April 2023 ADNSW received the complainant’s comments on the first response to her complaint. She maintains that:

Termination of the Occupation Agreement is unusual and, given that it was officially without reason, it is more than likely to be related to their visit to the cabin with their son’s companion animal.

She has informed the respondent of her complaints to ADNSW and maintains she is being victimised. She believes that given the circumstances, the respondent should allow the sale to go through regardless of any payments in arrears.

Evidence at the hearing

24. The Tribunal is not bound by the rules of evidence or some of the formalities required in courts. The material filed and served by GRD on 31 July 2024 was intended, as we understand it, to represent what are usually referred to as her Points of Claim, evidence and submissions in chief. Later, on 30 September 2024, GRD filed a further set of submissions and further evidence in reply.

25. The hearing was originally intended to be conducted in person in Wollongong, was later rescheduled to be heard in Sydney with GRD appearing by telephone and Mr Greer, an employee of INA, appearing by audio-visual link.

26. During the hearing, the Tribunal received documentary and oral evidence, as well as submissions from both parties, and was further assisted by oral submissions from both parties.

27. GRD’s documentary evidence comprised a filed bundle of materials including photographs, emails, text messages, and correspondence. GRD also gave oral evidence and answered questions posed to her by the Tribunal and INA.

28. INA’s documentary evidence comprised similar kinds of material, including a statutory declaration from Spencer Watson, a former operations manager for INA located in Sydney. In the course of the hearing, Mr Watson gave oral evidence by telephone and was cross-examined. Additionally, the Respondent relied on some further oral evidence of a staff member at the holiday park, Ms Dale, who had face-to-face and email communication with GRD in relation to relevant events. Ms Dale gave some evidence concerning her interactions with GRD and the application of INA’s policy concerning assistance animals. In addition to her oral evidence in chief, GRD cross-examined Ms Dale.

29. We will refer to the relevant material in detail in the course of our fact-finding below.

Factual findings

30. The evidence before the Tribunal established the following matters.

31. INA operates a holiday day park on the south coast of New South Wales. As part of its operation, it leases sites for relocatable holiday cabins which remain at the park on a long-term basis.

32. In March 2022, GRD and her spouse executed an occupation agreement with INA, a copy of which was tendered by both parties (Occupation Agreement). The Occupation Agreement refers to the Holiday Parks (Long-Term Casual Occupation) Act 2002 (NSW).

33. The effect of the Occupation Agreement was to grant GRD and her family the right to have their relocatable holiday cabin situated on a designated site at the holiday park and to allow them to utilise the park’s facilities and location.

34. In her written and oral evidence, GRD informed the Tribunal that her son’s needs, and those of her family, were well met by having a cabin at the holiday park. This arrangement allowed the family to visit a place that was familiar and predictable for her son, enabling him to anticipate time away from home in a positive way and allowing the family to enjoy recreational time together without the attendant stress of going to a new place that might be unsuitable. GRD also explained that the arrangement allowed her son the opportunity to have important social and developmental experiences, including making and retaining friendships with other children attending the holiday park, in a setting that did not create distress and where, if necessary, GRD’s son could have the security of being able to know there was a calming place to retreat to if he was overwhelmed. The Tribunal acknowledges the significance of these matters to a child with autism spectrum disorder and their family.

35. The Occupation Agreement was for a fixed term of 12 months and, thereafter, it was to continue on the same terms but on a month-to-month basis.

36. The correspondence between the parties in evidence before the Tribunal establishes that throughout 2022, the relationship between them was polite and constructive. GRD placed into evidence several emails and messages from 2022 which show GRD thanking staff at the park for providing services that were helpful to her family (unrelated to her son’s needs), and several messages where she politely informs the park management about the times and arrangements for contractors who were to attend the park to conduct minor renovations on the holiday cabin.

The children’s disco incident

37. In her complaint to ADBNSW, she stated that until October or September 2023, “we didn’t have any issues with the park”. However, in her evidence before the Tribunal, GRD stated that the first blemish in the relationship between the parties occurred after an incident at a children’s disco held at the park during “the April school holidays of 2022”. GRD clarified this date in the course of her oral evidence, in which she explained that the event she was referring to occurred four months before the Occupation Agreement was terminated, during the April 2023 school holidays. Having regard to the email correspondence referred to in the preceding paragraphs, and for reasons set out below, we have concluded that the disco incident did not take place during either the April 2022 or April 2023 school holidays.

37. Putting aside momentarily the question of the date, according to GRD the substance of the incident involved GRD and two other female residents having a heated argument at a children’s disco hosted by the holiday park, after one of the female residents grabbed or shoved GRD’s son (who was then only three years old). The grabbing of GRD’s son led to GRD becoming angry, confronting the woman and raising her voice. GRD stated that she was then met with aggressive behaviour from the other woman. In her submissions, GRD stated that her son had been assaulted by the woman at the children’s disco. GRD stated that she reported the matter to the police, who took a statement, however she is unaware if any other action was taken.

38. GRD stated that on the morning after the incident, she went to report the incident to management at the holiday park. She informed the Tribunal that she had made the report because she was concerned about what had happened to her son and that she was also concerned that a false allegation might be made about her conduct. GRD did not explain why she suspected a false allegation would be made. GRD also stated that, in reporting the incident, she told the INA staff that while seeking a diagnosis, her son was receiving multiple therapies in order to assist him. GRD submits that by her telling the staff about this, she has placed INA on sufficient notice that her son had a disability and that, from that date onwards, INA was aware of her son's disability. GRD also stated that she had requested security camera footage of the incident and was highly critical of INA for having misled its residents by claiming to have such equipment in working order.

39. The staff member to whom GRD made the report, Ms Nichols, was then the park manager. She created a record of the report in INA’s computer system. The INA record also places the incident as occurring on the evening of 6 January 2023, the record itself being created the next day, on 7 January 2023. The record was produced to the Tribunal at the hearing, and we have set out the full text of the record below:

[GRD] came into the office to let me know of an incident at the kid's disco on site last night. She claims that a lady grabbed her child, she admitted to getting very angry and that another lady pulled at her clothes, so she lashed out behind her to get the lady’s arm off her. I asked that [GRD] put it in writing. There are two sides to every story, and at the moment they are very different stories. She talk very loud and over the top of you. I will forward emails and discuss with Spencer [Watson].

41. It can be seen that the record created and maintained by INA does not record any details about GRD making a disclosure that her son may have a disability or that he was receiving multiple therapies or awaiting a diagnosis. The record does not mention GRD’s son’s behaviour at all and is, unsurprisingly, focused on the behaviour of the adults. We note that the INA record does not mention any request by GRD for security camera footage.

42. GRD explained in her written submissions that she had sent several emails to INA regarding the incident but that she was unable to access them because they were sent from an email account she no longer used. We accept that there were likely to be emails and note that the INA record refers to an intention to forward emails to Mr Watson. INA did not produce any other material regarding the incident. The consequence is that there was no further material regarding this incident available to the Tribunal at the hearing.

43. The relevance of the disco incident to GRD is described in her written submissions in the following terms:

The point of this traumatic story is to bring to the Tribunal’s attention that [INA] were aware of our son’s circumstances, and it does support our claim that [INA] were inconvenienced by his behaviour and the potential detriment it could/would put on their business.

Furthermore, since the time of the incident and up until October 2022 we had seen the woman and her family who had assaulted our son on a multitude of occasions. It’s peculiar that she was able to seriously breach her own occupation agreement with the park by displaying physical violence to a child no less, but has not had her occupancy terminated.

44. The reference to October 2022 in the second paragraph extracted above appears to be a typographical error, and we have inferred the Applicant intended to write “October 2023”.

45. Given the evidence before us, we have concluded that the disco incident took place on 6 January 2023. This reflects the contemporaneous record created by INA as a matter of business practice.

46. In the Tribunal’s view, while we are satisfied that an incident occurred at the disco and GRD made a report, it is highly unlikely that such a report was sufficient to alert INA or its staff to the fact that GRD’s son had a disability. We note that the child’s conduct was never recorded or remarked upon by INA in its record of that report.

47. In the ten months between recording the incident at the children’s disco and terminating the Occupation Agreement, there was no evidence before the Tribunal that INA had done anything that indicated that it was motivated to remove GRD and her family from the park because of her son’s disability.

48. We are not satisfied that the record produced in evidence, GRD’s oral evidence concerning the incident, and GRD’s written submissions, could logically support a finding that INA considered GRD’s son’s behaviour to be inconvenient or detrimental to its business.

49. We cannot conclude, therefore, that INA relevantly knew that GRD’s son had a disability in the way that term is defined in s 49A of the Anti-Discrimination Act, or that it had sought to unlawfully discriminate against GRD based on her son’s disability.

The visits in August and September 2023 with a dog

50. Central to GRD’s complaint of unlawful discrimination is the allegation that INA terminated the Occupation Agreement because the family had stayed in their holiday cabin with their dog in September 2023.

51. According to the photographic evidence tendered by GRD, the dog accompanied her son and family to the holiday park in mid-August 2023 and was kept mostly - but not exclusively - inside the cabin. GRD tendered four photographs of the assistance dog taken on a mobile phone. The photographs tendered by the Applicant are headed “Wairo Beach 12 August 2023” and depict a small dog with a harness on the beach, the same small dog on the beach with a man and two children, the same small dog again on a beach with one child, and the same dog sitting on the lap of a man who is sitting in camp chairs grouped with other camp chairs (one of which is occupied by a child) located in what appears to be a covered area adjacent to a holiday cabin.

52. The photographs tendered by the Applicant suggest that the dog had attended the holiday park by mid-August 2023 and that, rather than the dog “always staying inside”, it was out at the beach and joining the family while they were seated just outside the cabin. In her oral evidence, GRD conceded that the dog was allowed out but that it had been kept inside the cabin for 90% of the visit to the holiday park.

53. We conclude from this evidence that the dog first came with GRD and her family to the holiday park at least two months prior to the termination of the Occupation Agreement.

54. GRD also tendered two undated photographs of a window in her holiday cabin that displayed a sticker indicating the presence of an assistance animal. GRD tendered this evidence to support her submission that INA must have been aware that her son had an assistance dog with him when visiting the holiday park. It is not evident to us, however, that INA staff would necessarily have seen that sticker even if, as GRD submitted, the staff regularly patrolled the holiday park, and the family’s cabin was located near the holiday park reception office and adjacent to several of the common facilities.

55. INA informed the Tribunal that, unlike some of its other holiday parks, the holiday park at Wairo Beach does not permit pets. It was Ms Dale’s uncontested evidence that, during her tenure as a staff member at the holiday park, other visitors with assistance animals had stayed there and been welcomed, and that the presence of assistance animals was not regarded as a problem by the staff working at the holiday park.

56. Ms Dale’s evidence was that where an assistance animal is to accompany a person on a visit to the holiday park, the staff at the park like to know about it, if only to ensure that appropriate measures can be taken to accommodate the needs of all the visitors to the park

57. Concerning the dog and INA’s approach to assistance animals, Ms Dale’s evidence supported INA's submission that:

Had Ingenia been made aware of the dog, our standard practice would be to discuss with the occupant and on establishing that the dog was an assistance animal, there would have been no issue, however we were not afforded this courtesy.

58. In answer to questions from the Tribunal, GRD conceded that she and her spouse did not inform the staff at the holiday park that they were bringing a dog with them. GRD told the Tribunal that she and her spouse kept the dog inside for 90% of the time because they “did not want to rub the park up the wrong way”. GRD further conceded that it would have been better had she informed park staff that they were bringing a dog to the holiday park but then stated that she considered they had a “right” to have the dog at the park as it was a service dog in training. As we note above, however, in August and September 2023, the dog did not meet the definitional requirements of an assistance animal.

59. While we are satisfied that, in August and September 2023, GRD and her family brought a dog to the holiday park without seeking permission from or informing the staff at the holiday park, we are unable to conclude that park staff were aware of its presence or that, if they were, this led park staff to conclude that GRD’s son had a disability. This is because:

1. the family only visited the cabin twice for brief stays before the Termination Notice was given;

2. the dog was kept inside the cabin for almost all the time it was there;

3. there is no evidence as to when the sticker was placed on the cabin window, and the location of the sticker was not so prominent as to ensure that it would have alerted staff;

4. GRD and her family did not notify the holiday park staff that they were bringing the dog to the park; and

5. there was no evidence of park staff raising the issue with GRD and her spouse by any method.

Other incidents

60. In the course of the hearing, GRD’s submissions regarding the claim of unlawful discrimination changed in emphasis from reliance on a single incident where a dog came with the family to visit the holiday park on 1 September 2023 to a more wide-ranging submission that INA had unlawfully discriminated against her because:

1. her son sometimes exhibited behaviours that were disruptive, and

2. INA was unwilling to tolerate GRD’s advocacy on behalf of her son.

61. GRD submitted that her son’s behaviours and her advocacy on his behalf were adverse to INA’s business model, and that was why it had terminated the Occupancy Agreement.

62. In support of this claim, GRD submitted that:

1. the disco incident in January 2023, as well as the presence of the dog in August and September 2023, were simply circumstances that evidenced INA’s knowledge concerning her son’s disability; and

2. she had spoken to four residents or visitors to the holiday park in October and November 2023 and asked them whether they had noticed anything about her son’s behaviour in or near her cabin. GRD told the Tribunal she could not give the names of the people she spoke to, as she either did not know their names or those whose names she knew were concerned about what INA might do to them if they spoke up. In summary, the nature of this additional evidence was that:

1. GRD had spoken with one resident who owned a cabin close by, who had stated that her son “causes a lot of attention”;

2. GRD had been told by another resident who owned a cabin across the throughway/service road that “he’s always out there playing and making noise”;

3. GRD received a comment from another resident who also has young children that GRD’s son “always makes his presence known”; and

4. a parent of another child had spoken to her in a kind and empathetic manner when GRD’s son was having some difficulty with a social interaction while playing with some younger children on the bouncing pillow at the holiday park. In relation to this interaction, it does not appear that GRD asked the parent any specific questions.

63. None of the people GRD spoke to provided statements in the proceedings. This meant that INA was denied any opportunity to cross-examine those people – that is, to ask them questions to clarify or test the truth of what they told GRD. In court proceedings, this type of evidence would have been excluded on the basis that it is hearsay. While the Tribunal is not so constrained and may inform itself of any matter, it is subject to the rules of natural justice: s 38 of the Civil and Administrative Tribunal Act. In the absence of any other evidence to corroborate these statements or their source, and where the Respondent has not had the opportunity to test the claims, we accord no weight to them.

64. Even if we had been able to accept the evidence, the statements do not establish that INA was likely to have unlawfully discriminated against GRD on the basis of her son’s disability. We note that there is no record of GRD or her spouse receiving any complaints from INA concerning her son’s behaviour at any time during the course of the Occupation Agreement.

The fee dispute

65. INA was given the opportunity to give evidence concerning its policy on assistance animals. It did not produce any written policy. However, Ms Dale’s oral evidence established that assistance animals were permitted and that guests of the holiday park did, from time to time, bring assistance dogs on site.

66. INA resisted the claim of unlawful discrimination by arguing it:

1. did not know about the dog or the boy’s disability; and

2. terminated the Occupation Agreement because GRD failed to pay fees, and the risk that those fees would remain unpaid.

67. In her oral evidence, GRD explained that she had nominated 1 September 2023 in her complaint because that was the last weekend the dog had visited the holiday park, and the notice of termination of the Occupation Agreement - issued nearly two weeks later, on 13 September 2023 - was likely triggered by that visit. Specifically, as we note above, GRD’s reply to the ADBNSW summarised the complaint of unlawful discrimination as being that “it is more than likely to be related to their visit to the cabin with their son’s companion animal”. However, the uncontested evidence before us is that from at least 31 August 2023, GRD and INA were engaged in a dispute over fees payable under the Occupation Agreement.

68. In late August 2023, INA decided to increase the occupation fees payable by the Applicant and her family under the Occupation Agreement and notified the GRD and other residents of the holiday park. It seems that this increase in fees was imposed generally to all or most residents. GRD tendered a series of messages from a group of residents who were members of an online group chat titled the “Wairo Beach Cabin and Caravan Owners Collective”, in which several residents with Occupational Agreements expressed dissatisfaction with the increase having regard to issues of maintenance and repair of the common facilities as well as the comparative fees charged by INA for other parks it owned. The messages are largely undated, save for two made by another resident in which that resident records his correspondence with Mr Watson from INA on 22 and 23 September 2023.

69. GRD disagreed with the fee increase and asserted that she and her spouse had been overcharged by INA from October 2022 (that is, the previous year), leading to a claimed credit of just over two hundred dollars.

70. Just before midnight on 31 August 2023 - that is, the day prior to the period of alleged unlawful discrimination occurring - GRD sent an email entitled “Payments”, which both parties tendered in their case, which we set out below in full:

“Good Evening,

Seeing as you haven’t sent me what I’ve asked, I have done it myself. See below

I can see from transfer records that I have been charged $681.42 from months October 2022 to present day.

Our amount owing prior to this was $642.85 which was debited monthly in 2022 upon our agreement in March through to Sept.

As per the occupation agreement, I should not have incurred an increase fee within the fixed term of my first 12mo at the park.

Therefore, I’m in credit:
$38.57 for months of October, November, December of 2022, and January February and March of 2023 totalling $231.42

I also believe a Formal apology and compensation for you having taken funds which you were not entitled to be given.

Shame on me for not tracking this better.

As previously stated, you no longer have my permission to directly debit me for any bills.

Send all invoices through to this email.

Kind Regards,”

71. During the hearing GRD acknowledged, however, that she was incorrect about INA’s entitlement to charge under the Occupation Agreement. She states in her first set of submissions that by about 10 October 2023, she was advised by her solicitor of the effect of the terms of the Occupation Agreement and that her interpretation concerning INA’s ability to increase fees was wrong. GRD submitted at the hearing that the blame for her lack of understanding lay with INA, who had failed to provide her with a clear response, and that they had deliberately failed to clarify the issue in order to “back us into a corner”.

72. Having regard to the terms of the Occupation Agreement, it was clear that under Schedule 1, GRD and her spouse had agreed that INA could increase the occupation fee payable even during the fixed term, on “the common anniversary date” of 1 October each year. That seems to have been the common anniversary date when INA generally increased (or adjusted) the occupation fees for all long-term casual occupants of the park. This term meant that although the fixed term of the Occupation Agreement did not end until 11 March 2023, INA was entitled, as of 1 October 2022, to increase the occupation fees.

73. In her email of 31 August 2023, GRD suggested that she and her spouse had been overcharged and requested a refund, compensation and an apology. GRD also advised in this email that INA no longer had permission to receive any payment under the Occupation Agreement by direct debit. In effect, GRD and her spouse were refusing automatic payments until the disputed element was settled.

74. In her submissions, GRD places the blame on INA for having refused “to respond in the early stages and before it became an issue”. However, it is unclear on what basis GRD believed she could legally withhold payment of any undisputed amount without placing the contract in jeopardy.

75. The stance taken by GRD in her email of 31 August 2023 was compounded a few days later when, on Monday 4 September 2023, having not received a response from INA, GRD sent another email, the subject line of which was “Public or private”:

“Good Evening,

I[s] our park considered to be public or private? If you wanted to ignore this question as well, I can refer to my lawyer again.

Kind regards,”

76. We accept that, on the basis of the emails of 31 August 2023 and 4 September 2023, it was reasonable for INA to believe that GRD was considering taking legal action and that she had, or was likely to, repudiate their contractual relationship. In response, Ms Nicols, the park manager, called GRD on 4 September 2023 and left a voice message. In the absence of a response from GRD, on 5 September 2023, Ms Nicols responded to GRD by email in the following terms, seeking again to discuss the issue:

“Good morning [GRD],

I’m sorry if you feel like you have been ignored, you emailed on Friday, however I was off for a few days. I did try to call you yesterday afternoon and left a message. I thought it might be better to have a conversation rather than keep emailing each other. If you would like to let me know a good time to call that would be great.”

77. On 8 September 2023, GRD responded to Ms Nicols by email stating:

“Thanks for your email,

I think keeping things in writing would be best considering the situation.

I’m mindful that monthly payments are due today; however, I’m still waiting for my adjusted invoice.”

78. That is, GRD confirmed that she was not going to pay the monthly payment due under the Occupation Agreement until an adjustment was made in circumstances where she had withdrawn permission for INA to make direct debits of any amounts due and had refused to communicate other than in writing. INA’s position was that the fee increase was permitted under the Occupation Agreement and that GRD and her spouse had fallen into arrears.

79. On 13 September 2023, Ms Dale requested that INA’s head office send a 90-day termination notice to GRD and her spouse. In its submissions, INA notes that under the Holiday Parks (Long-Term Casual) Occupation Act, it was only required to give 7 days’ notice where termination was on the basis of non-payment of occupation fees. Clause 39(3) of the Occupation Agreement provides that fees must be unpaid for more than 14 days before the agreement can be terminated on that basis.

80. In his oral evidence, Mr Watson stated that it was part of his role to bring outstanding trade debtors (which would include residents under Occupation Agreements) below 30 days in arrears. The circumstances in which Mr Watson considered issuing a termination notice in the general case were where the local holiday park management had indicated problems with recovery, where a trade debt was over 30 days in arrears, and where the local park management considered there was a risk. He told the Tribunal that those circumstances were all apparent in relation to GRD’s Occupation Agreement, and accordingly, Mr Watson set in place the process to issue a termination notice.

81. On the evidence set out above, we accept the submission of INA that by 13 September 2023, its local management of the holiday park considered that GRD and her spouse had notified an intention to repudiate the Occupation Agreement because GRD had:

1. indicated that she was entitled to things (being a formal apology, compensation and a refund of fees) which she was not entitled to under the Occupation Agreement;

2. referred to getting her lawyer involved;

3. refused to discuss the matter with park management over the telephone in the context of her previous email that she was seeking legal assistance;

4. withdrawn INA’s permission to directly debit amounts payable under the Occupation Agreement; and

5. refused to pay the occupation fees as and when they fell due, in contravention of cl 11 of the Occupation Agreement.

82. On 3 October 2023, INA issued the termination notice to GRD. By that date, GRD and her spouse were in arrears by two months' worth of occupation fees ($1,616.65), contrary to cl 11 of the Occupation Agreement. These arrears significantly exceeded the adjustments sought by GRD.

83. Even though GRD and her spouse had not taken any step to repay the arrears, on 5 October 2023 GRD or her spouse sent the following email entitled “Letter”, attaching the notice of termination, to the staff at the holiday park:

“Not sure what this letter is about as I have yet to hear back from Kathy regarding our concerns.

I have included our solicitor to this email.”

Alleged victimisation

84. The circumstances and conduct in which GRD and her spouse disposed of their holiday cabin are the subject of the complaints of victimisation. GRD alleges that, on the basis that she had made a complaint of unlawful discrimination against it, INA deliberately tried to interfere with the sale of the cabin, causing detriment to GRD. That interference was alleged to include the postponement of settlement of the sale as well as going back on the agreement allowing the sale of the cabin on-site. INA’s conduct in relation to the sale of the cabin is the basis of the complaints of victimisation.

85. Shortly after being issued with the termination notice, GRD and her spouse took steps to sell their cabin on site at the holiday park. Under cl 40 of the Occupation Agreement, INA was required to give at least 90 days’ notice for vacant possession of the site as the fixed term had finished. The notice of termination gave GRD and her spouse until late January 2024 to vacate the site – that is, more than the 90 days required under cl 40.

86. Vacant possession of the site means that the holiday cabin had to be removed unless GRD sold the cabin and INA were willing to enter into an Occupation Agreement with the purchasers of the cabin. INA submitted that allowing the sale of the cabin in situ provided a financial benefit to GRD and her spouse.

87. Between 10 and 12 November 2023, potential buyers of the cabin attended the holiday park. It appears that GRD gave the potential buyers the code to a key box to allow them to try out the cabin – that is, to stay overnight. Some of the potential buyers reported back to GRD by text message that the staff had been rude to them. There was an exchange of emails in which INA informed GRD that potential buyers cannot stay in a cabin unless they are named guests on the register. The park staff did not, however, prevent the prospective buyers from staying at the cabin. GRD then accused the park staff of breaches of protocol, policy and privacy, and admonished them for allowing the potential buyers to stay in the cabin when they were not named guests. In submissions, GRD stated that INA staff had shown they had a vendetta against her because, although she and her spouse were contracting parties under the Occupation Agreement, INA had not addressed her spouse’s conduct as well.

88. The correspondence between the parties, as well as GRD’s submissions, indicate a significant deterioration in the relationship between the parties after INA issued the termination notice.

89. In an undated text message, a potential buyer complains that the holiday park charged her the day rate for two days to allow her to stay at the park. Indeed, from the Client Account Statement in evidence before us, there is a charge and a payment of $60 for an ‘Extra Adult’ on 10 November 2023. While it is conceivable that INA’s decision to charge an accommodation payment to a prospective buyer (which it was entitled to do) and being rude to that person (as suggested by GRD) might have jeopardised the sale, there is no evidence to establish that the prospective purchaser was, in fact, deterred. The prospective purchaser ends their message saying, “don’t worry about it, we are in now and all sorted”.

90. Given that the terms of the Occupation Agreement allow INA to charge for guests staying in a cabin that is subject to an Occupation Agreement, we do not consider that the decision by INA to impose a charge to allow GRD’s prospective buyers to stay in her cabin could be construed as victimisation of GRD. There is no evidence before the Tribunal as to whether GRD reimbursed the potential buyer or whether that potential buyer was the same person who actually purchased the cabin later that month.

91. GRD further submits that there was pressure to sell the cabin before the 90-day time limit, and this meant that the sale price of the cabin was materially less than it would have been had the sale not been forced. There was, however, no evidence concerning what pressure was placed on GRD or her spouse to sell, aside from the date of vacant possession required in the Termination Notice. The evidence GRD relies on for the difference in value (between the final price and what GRD asserts the cabin was worth) is a letter from a local real estate agent dated 30 June 2024 and is referred to as being a “market appraisal” rather than a valuation. The market appraisal states that a “realistic property price would be in the vicinity of $145,000”. There is no indication that any inspection was conducted or what similar properties, sale data or local knowledge were relied upon in deriving the market appraisal. We do not accept that the evidence before us establishes the financial loss of the kind and quantum claimed by GRD. Nor can we conclude that the evidence establishes that a lower sale price resulted from any pressure applied by INA on GRD and her spouse to conclude the sale quickly.

92. Clauses 23 and 24 of the Occupation Agreement stipulate that the sale of a cabin on site cannot occur without its prior written consent. However, there is no provision in the Occupation Agreement that would create a right or lien over the sale of the cabin to cover outstanding fees. In its written submissions, INA put the situation this way:

Ingenia’s policy when a cabin owner is in arrears is to request that the arrears are paid off during the sales transaction. As such, the arrears amount was communicated to the prospective purchaser so that it could be included in the transaction. It is relevant to note that the cabin has now been sold.

93. Ultimately, the cabin was sold and the sale was settled before the end of December 2023.

94. On 30 October 2023, GRD’s spouse sent an email with a subject line “Sold” to Ms Dale, which stated:

“Send info to me asap as I haven’t gone through and a real estate.

The purchaser will also be paying us directly and not going through your trust.”

95. This email was sent at a time when - according to the unchallenged Client Account Statement - GRD and her spouse still owed INA the sum of $2,134.22 in arrears and after - on GRD’s evidence - they had consulted their solicitor and been informed that they were not being overcharged.

96. It appears that the sale of the cabin was due to be completed by mid-November 2023. On 15 November 2023, GRD and her spouse had still not paid the fees in arrears. GRD placed into evidence an email sent by Mr Watson to the purchasers of the cabin. After the salutation, the email reads:

Due to payment of arrears not being repaid by [GRD and her spouse] settlement scheduled for today will need to be postponed.

Once funds have been received by Wairo for overdue fees, another settlement date can be scheduled.

97. From the evidence, it appears that GRD then responded to Mr Watson’s message in the following terms:

Spencer, this is senseless.

You’re very clearly covering yourself for having breached protocol which his evidenced and can be verified.

I’m waiting for my buyers police check and they are sending through their application.

The cabin is sold. Your methods are clearly intimidation based which all will be noted in our lawsuit.

Do not contact me again as you’ve been strong arming me through intimidation methods and I no longer feel safe.

We will discuss in court.

98. GRD provided no explanation as to why the fees remained outstanding or when she intended to pay them. In relation to the outstanding fees, she told the Tribunal that the disclosure of unpaid fees to the prospective purchaser was a breach of her privacy. We were not, however, asked to determine a privacy breach.

99. GRD did not provide a reason to the Tribunal for why we should find that INA’s refusal to give consent to the sale of the cabin in these circumstances constituted victimisation in response to GRD’s claim for unlawful discrimination.

100. Ultimately, the cabin was sold to the same individuals who received Mr Watson’s email. The price under the undated sale contract was amended by hand from $115,000 to $112,865.78. The difference ($2,134.22) is the amount outstanding of the fees owed by GRD and her spouse to INA as at the date of sale and, according to the Client Account Statement, was the amount paid directly by the purchaser to INA on 15 December 2023.

101. We are not satisfied, having regard to the elements of victimisation set out earlier in these reasons, that the actions of INA with respect to the sale of the cabin were made either to the detriment of GRD or in response to her claim of unlawful discrimination against it. While we accept that the relationship between the parties had deteriorated in the lead up to the sale, the evidence before us indicates that INA acted in accordance with the Occupation Agreement to recover a legitimate debt owed by GRD and her spouse.

Conclusion

102. We are satisfied that INA’s decision to terminate the Occupation Agreement was not because of the disability of GRD’s son, or the presence of a dog at the cabin in August or September 2023, or GRD’s advocacy on behalf of her son. We are satisfied, however, that INA terminated the Occupation Agreement because GRD and her spouse were in arrears in their site fees, had refused to make further payments as they were required to do so under the Occupation Agreement, and that there was a risk that GRD and her spouse did not intend to repay the arrears or pay their fees as they fell due.

103. We are also satisfied that INA’s conduct in relation to the sale of the cabin was not an attempt to victimise GRD and her spouse because GRD had made a complaint of unlawful disability discrimination. We are not convinced on the evidence before us that GRD and her spouse suffered any material detriment in the sale of the cabin as a result of the actions of INA.

104. GRD made submissions in regard to damages and remedies. Given our conclusion that she has not established that INA engaged in unlawful discrimination or victimisation, we do not need to consider the question of remedy.

Order

1. The complaints of unlawful disability discrimination and victimisation are dismissed.

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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

Decision last updated: 03 June 2025