Honeybrook v Owners of Units Plan 836; Frogbott Pty Limited v Owners of Units Plan 836 (Discrimination and Unit Titles)
[2023] ACAT 2
•10 January 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HONEYBROOK v OWNERS OF UNITS PLAN 836; FROGBOTT PTY LIMITED v OWNERS OF UNITS PLAN 836 (Discrimination and Unit Titles) [2023] ACAT 2
DT 46/2021
UT 32/2021
Catchwords: DISCRIMINATION – indirect discrimination – protected attributes – disability – association – loss suffered by the business – obstruction to clients with disabilities – whether business had ‘association’ with protected attribute – scope of ‘association’ under the Discrimination Act1991 – condition or requirement – claim for compensation – proof and quantum of alleged loss – no substitution of business as applicant in proceedings
UNIT TITLES – unreasonable interference with use and enjoyment of common property – no special privilege granted – substitution of owner as applicant in proceedings
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48
Disability Discrimination Act 1992 (Cth) s 4
Discrimination Act 1991 ss 4A, 4AA, 5AA ,7, 8, 19, 20
Equal Opportunity Act 2010 (Vic) s 6
Human Rights Commission Act 2005 ss 53, 53A, 53CA, 53E
Legislation Act 2001 s 160
Uncollected Goods Act 1996
Unit Titles Management Act 2011 ss 22, 112A, 125, 129
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Rules 2020 rr 39, 41
Unit Titles (Management) Regulation 2011 sch 1
Cases cited:ACT v Phillips [2021] ACAT 122
D'Silva & Anor v Canberra Strata Pty Ltd & Anor [2022] ACAT 79
Eisele v Commonwealth of Australia [2018] FCA 15
Gama v Qantas Airways Ltd [No 2] [2006] FMCA 1767
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
Phillips v ACT [2021] ACAT 22
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
The Owners - Units Plan No 1475 v Davidson [2022] ACAT 10
List of
Texts/Papers cited: Lisa Burton Crawford and Dan Meagher, ‘Statutory Precedents under the “Modern Approach” to Statutory Interpretation’ (2020) 42(2) Sydney Law Review 209
Tribunal:Senior Member Prof P Spender
Date of Orders: 10 January 2023
Date of Reasons for Decision: 10 January 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 46/2021
BETWEEN:
CRAIG HONEYBROOK
Applicant
AND:
OWNERS OF UNITS PLAN 836
Respondent
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) UT 32/2021
BETWEEN:
FROGBOTT PTY LIMITED
Applicant
AND:
OWNERS OF UNITS PLAN 836
Respondent
TRIBUNAL:Senior Member Prof P Spender
DATE:10 January 2023
ORDER
The Tribunal orders that:
The application for leave to substitute Sport and Spinal Physiotherapy Pty Limited as applicant in proceedings DT46/2021 is dismissed.
The application in DT46/2021 is dismissed.
Frogbott Pty Limited is substituted for Craig Honeybrook as applicant in proceedings UT 32/2021.
The respondent must remove all items of furniture that are situated on the colonnade of UP 836 by 21 February 2023.
………………………………..
Senior Member Prof P Spender
REASONS FOR DECISION
The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refer to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the presently constituted tribunal.
The orders set out above apply to two proceedings – discrimination proceedings commenced on 19 August 2021 upon referral from ACT Human Rights Commission (HRC) (DT 46/2021) (the discrimination proceedings) and unit title proceedings commenced on 14 September 2021 (UT 32/2021) (the unit title proceedings). On 23 February 2022 the Tribunal ordered that the proceedings be heard together. Hearings were held in both proceedings on 23 February 2022, 17 June 2022 and 20 September 2022. The applicant in both proceedings shall be referred to as the ‘applicant’ or intermittently as ‘Mr Honeybrook’. The respondent shall be referred to as ‘UP 836’ or the ‘Owners Corporation’. Units Plan No. 836 consists of five units that are situated in premises that are often referred to as the Melbourne Building.
Summary of decision
The claim alleging indirect discrimination has been dismissed because the Tribunal has found that neither the applicant nor Sport and Spinal Physiotherapy Pty Limited (Sport) (as the putative substituted applicant) possessed the relevant protected attributes for the purpose of the application of section 7(1) of the Discrimination Act 1991 (Discrimination Act). Further, although the Tribunal has assumed that a condition or requirement was imposed under section 8(3) of the Discrimination Act, it has found that the applicant did not prove that the alleged condition or requirement had the effect of disadvantaging the applicant. The Tribunal also concluded that even if it had that effect, the applicant did not prove that this caused the loss to the applicant, either in general or by way of proof of a certain quantum of loss or damage to justify the award of compensation under section 53E of the Human Rights Commission Act 2005 (the HRC Act).
In the unit title proceedings, the Tribunal substitutes Frogbott Pty Ltd (Frogbott) (the owner of unit 4) for Mr Honeybrook as applicant in the proceedings. The Tribunal has found that the colonnade is common property and that unit owners 1, 2 and 3 have used the colonnade by placing furniture upon that colonnade that constitutes a use or permission to use which unreasonably interferes with the use and enjoyment of the common property by owners, occupiers or users of other units in UP 836, particularly unit 4. This breaches default rule 1.7 of the default rules in Schedule 1 of the Unit Titles (Management) Regulation 2011 (the Default Rules). No special privilege has been granted to the owners of units 1, 2 and 3. The Tribunal has therefore ordered the removal of the furniture from the common property. Other remedies sought by the applicant in these proceedings are refused.
Background
On 19 August 2021 the HRC referred a discrimination complaint to the tribunal pursuant to section 53A of the HRC Act. The applicant made certain allegations under the Discrimination Act which are set out below. The respondent provided a response in the discrimination proceedings on 11 October 2021. Details of its response are set out below. The discrimination matter was originally set down for hearing on 23 February 2022 on the question of whether the applicant had a protected attribute for the purposes of section 7 of the Discrimination Act by reason of having an association with a person with a disability and whether the conduct complained of was, if proven, capable of contemplating indirect discrimination pursuant to section 8(3) of the Discrimination Act.[1] As stated above, the unit title proceedings had previously been commenced by the applicant on 14 September 2021.
[1] Orders dated 15 October 2021
At the hearing on 23 February 2022, it became clear that many of the issues that were being raised in the discrimination proceedings also applied to the unit title proceedings. Therefore, the Tribunal ordered that the matters be heard together. At the hearing held on 17 June 2022 the respondent challenged the applicant’s personal standing to bring both the discrimination and the unit title proceedings so the Tribunal stood the matter over to allow the applicant to seek leave to substitute certain companies – Sport and Frogbott – that may have had an interest in the respective discrimination and unit title proceedings. Sport conducts the physiotherapy business at unit 4 in the Melbourne Building and Frogbott is the relevant unit owner of unit 4 in Units Plan No. 836 and a member of the respondent Owners Corporation. The orders made on 17 June 2022 stated that the applicant had leave to apply to substitute Sport as applicant in the discrimination proceedings and Frogbott as applicant in the unit title proceedings.
At the hearing on 17 June 2022, the respondent further argued that the issues in dispute could be dealt with by way of a meeting of the members of the Owners Corporation. A general meeting had been scheduled for 14 July 2022 and the respondent indicated that the issues might be resolved by way of resolutions put at that general meeting.
A further hearing was held on 20 September 2022. Lawyers acting for the respondent indicated that no resolution had been achieved either at the general meeting or in subsequent discussions between the members of the Owners Corporation. Certain resolutions had been put to the general meeting but voting on all of the relevant resolutions had been deferred.[2] Certain members of the respondent expressed a preference for ACAT to deal with the dispute[3] and the Tribunal has done so, making the orders set out above.
The parties’ contentions
The applicant’s contentions in the discrimination proceedings
[2] Witness statement of Matthew Marinelli dated 19 September 2022 (Exhibit R10), annexure C
[3] Emails dated 6 September 2022 in Exhibits A8 and R11
In his original submissions, the applicant argued discrimination against him due to his association with disabled people as a business owner of the physiotherapy practice which has resulted in the loss of clients and income.[4] The applicant also argued discrimination against his clients with disabilities due to reduced access to the premises. He argued that the reduced access consisted of items such as tables and chairs, couches, planter boxes, pianos, blanket boxes and wine barrels that are located on the colonnade outside units 1, 2 and 3 which impedes access to the colonnade and the entrance into his business premises. The scattered nature of the items meant that his clients with disabilities have difficulty manoeuvring around the items and there is no clear pathway to enter his business premises.[5] He argued that disabled clients of Sport have felt unsafe and been humiliated and stressed by the lack of clear access around the Melbourne Building. The applicant argued that the respondent had engaged in certain acts of discrimination under section 19 (access to premises) and section 20 (the provision of goods or services) of the Discrimination Act.
[4] Applicant’s submissions dated 24 September 2021, page 1
[5] Applicant’s submissions dated 24 September 2021, page 1
Notably, the applicant stated clearly in his submissions that he was not claiming direct discrimination.[6] He stated as follows:
The applicant is a director of [Sport]. The applicant is claiming indirect discrimination through his and his businesses’ association with the disabled. His statement of claim is clearly referenced in the ACT Human Rights Commission notification to the [respondent] dated 10 June 2021.
Mr Honeybrook provides a service to people with disabilities as an owner of Units Plan 836. His complaint is about services being provided by other organisations who are tenants on the ground floor below his business, namely Amici, Bistro Nguyens [Nguyens] and Smiths Alternative [Smiths]. His complaint is about these other businesses hindering or blocking access for people with disabilities to his service in the manner in which the furniture is placed which does not allow adequate room for people with wheelchairs or other mobility issues to safely access his services.[7]
The applicant claims discrimination from the Owners Corporation by not enforcing the rules with the lower ground tenants when the Owners Corporation were knowingly aware of the discriminatory behaviour of the lower ground tenancies’ placement of their furniture in blocking/impeding access for the disabled which disadvantages the applicant.[8]
Protected attributes
[6] Applicant’s submissions dated 15 November 2021, page 2
[7] Applicant’s submissions dated 15 November 2021, page 2
[8] Applicant’s submissions dated 15 November 2021, page 2
The Discrimination Act applies to certain protected attributes that are set out in section 7. The applicant relied upon a combination of protected attributes – disability[9] and association.[10] ‘Disability’ is defined in section 5AA of the Discrimination Act (among other things) as a total or partial loss of bodily or mental function. The applicant relied upon this definition although he referred to the federal legislation.[11] The applicant asserted that nearly all the clients of Sport have a disability in the malfunction of a body part – albeit predominantly temporary, but in some cases permanently.[12] The applicant also relied upon the further protected attribute of ‘association’. ‘Association’ is defined in section 7(1)(c) of the Discrimination Act as follows:
association (whether as a relative or otherwise) with a person who is identified by reference to another protected attribute.
[9] Section 7(1)(e) Discrimination Act
[10] Section 7(1)(c) Discrimination Act
[11] Applicant’s submissions dated 15 November 2021, page 2
[12] Applicant’s submissions dated 15 November 2021, page 2
The applicant argued that Sport has an association with the disabled by the services that the business provides to them.[13] The applicant argued that ‘association’ is defined in the Oxford Dictionary as “a connection between people”. He contended that the fact that many disabled clients of Sport attend that business “determines that [Sport] has an association with disability.”[14] The applicant further submitted that he and Sport have an association with many disabled people as their nominated allied health care provider to help with their musculoskeletal injury or mobility concerns.[15]
[13] Applicant’s submissions dated 15 November 2021, page 2
[14] Applicant’s submissions dated 15 November 2021, page 3
[15] Applicant’s submissions dated 15 November 2021, page 3
Regarding the requirement in section 8(3) of the Discrimination Act that the respondent must not impose a condition or requirement that has the effect of disadvantaging persons with protected attributes, the applicant argued that the doing of an act includes not doing an act and therefore by failing to act the respondent had in fact imposed a condition or requirement. The applicant asserted that the respondent has imposed a condition or requirement upon the applicant and the applicant’s business by refusing to issue default notices to the tenants of units 1, 2 and 3 for breaching the rules when no special privilege has been allowed to place furniture along the colonnade, and the placement of this furniture has caused financial and reputational disadvantage to the applicant by impeding or blocking access for the disabled clients that attend for treatment by the applicant and his business. Inaction from the respondent to enforce the rules is a condition or requirement that has led to the disadvantage of the applicant.[16] The applicant further contended that the positive action by the respondent to not enforce the rules by voting against default notices[17] is a condition or requirement that, in turn, has led to the disadvantage of the applicant. The applicant said that the owners of units 1, 2 and 3 have purposefully failed to enforce the rules which consequently discriminates against the applicant and his business.[18]
[16] Applicant’s submissions dated 24 March 2022, page 143
[17] Presumably this is a reference to the actions by various members of the corporation in the general meetings where resolutions had been put to remove the furniture from the colonnade.
[18] Applicant’s submissions dated 24 March 2022, page 143
The applicant relied upon the following material to support his claim:
(a)The statement of Paul Wright dated 21 October 2021 which commented on the negative impact of poor patient access and stated that, from personally visiting hundreds of practices across Australia and around the world for over 20 years, impeded access for clients (in particular disabled clients who have impaired mobility) is highly likely to disadvantage any health business, both economically and reputationally.[19]
(b)The statutory declaration of Charles Dearling dated 17 September 2021.[20] Mr Dearling stated that he undergoes treatment at Sport on a weekly basis. On a number of occasions, he has had difficulty accessing the property because of what he described as “an obstacle course”. He stated that the problem is furniture and people crowding across the access route “causing anyone wishing to enter to have to take a zigzag path into the building.”[21] He stated that the furniture from Nguyens and Smiths has partially blocked the entrance to Sport. Mr Dearling further stated that:
having to take an indirect path to enter the building has added to my difficulties mainly due to being in pain and having to do “sudden” changes in direction. At these times, balance can become an issue, due to having to take an uneven route and at time[s] an uneven path to gain access to the building.[22]
(c)The witness statement of Ms Madden dated 4 November 2021.[23] Ms Madden referred to the challenges that are presented to her as a paraplegic on entry and exit to Sport’s practice. She stated that challenges to navigate safe and equal access to Sport has caused her to cancel essential appointments. Ms Madden is reliant on a small scooter to independently mobilise, and the main focus of her challenge is with the promenade[24] entry and exit points leading to the Sport practice. She was concerned about the outdoor tables and chairs which are positioned within close proximity to the area of concern. She stated that Nguyens has tables and chairs in rows occupying both sides of the promenade. The amount of available space for pedestrians to mobilise has contracted. A disabled person on a mobility scooter cannot mobilise alongside an able person heading in the opposite direction. One or the other cannot pass at the same time as outdoor tables and chairs restrict access.[25]
Remedies sought in the discrimination proceedings
[19] Applicant’s submissions dated 15 November 2021, page 39 (Exhibit A3)
[20] Applicant’s submissions dated 15 November 2021, page 41ff (Exhibit A4)
[21] Applicant’s submissions dated 15 November 2021, page 41 (Exhibit A4)
[22] Applicant’s submissions dated 15 November 2021, page 41 (Exhibit A4)
[23] Applicant’s submissions dated 15 November 2021, page 55ff (Exhibit A5)
[24] The Tribunal assumes this is referring to the colonnade
[25] Applicant’s submissions dated 15 November 2021, pages 57-60
The orders sought by the applicant in the discrimination proceedings were, inter alia, to order the tenants of the unit owners of UP 836 to remove all items from the colonnade.[26] The submissions stated: “Once all items are removed, then units 1, 2 and 3 can then bring forward a motion at a body corporate meeting to have furniture on the colonnade with appropriate seating plans and maintenance schedule that complies with … the [Discrimination Act].”[27] The applicant also sought a written apology (although this claim is not pursued in the hearings) and an order that units 1, 2 and 3 pay full compensation and costs on the basis of their respective unit entitlements in UP 836 without impacting or financially disadvantaging units 4 and 5.[28] This remedy is discussed below.
Compensation
[26] Applicant’s submissions dated 24 September 2021, page 9
[27] Applicant’s submissions dated 24 September 2021, page 9
[28] Applicant’s submissions dated 24 September 2021, page 9
The applicant sought damages for loss of income and costs[29] as well as remedies under various federal statutes[30] and Australian standards.[31] The Tribunal has no jurisdiction in relation to federal legislation therefore will concentrate on claims made by the applicant under the Discrimination Act.[32] The applicant sought compensation under section 53E of the HRC Act. Initially he claimed the sum of $24,870 which was premised on a 20% loss in the 2020-2021 financial year (FY) compared to a “base” calculated by reference to FY 2018‑2019.[33] This sum was subsequently increased to $110,000, as discussed below. In later submissions, based on the evidence of Ms Madden who (as discussed above) had cancelled some appointments with Sport, the applicant referred to a ‘trend analysis’ of appointments which he said showed a significant reduction in appointments after the experience described by Ms Madden.[34] Subsequently, the applicant provided updated figures which compared Sport’s loss of revenue to another physiotherapy business in the city. The applicant claimed a loss of revenue of $169,752 from the base of FY 2018‑2019. He made an estimate of his client base who have a disability that impairs lower limb function and concluded that 65% of Sport’s clients had such a disability. The applicant therefore claimed 65% of the total loss, being $110,338. The applicant nominated that $2,000 of this amount will be donated to the Dylan Alcott foundation.[35]
[29] Applicant’s submissions dated 24 September 2021, page 1
[30] For example, the Disability Discrimination Act 1992 (Cth) (Disability Discrimination Act); applicant’s submissions dated 24 September 21, pages 2-4
[31] The Tribunal notes the applicant's arguments about the Australian standards 1428.2 at [4] in the applicant's submissions dated 24 September 2021 at page 3 but no further evidence was led about these standards in the hearings.
[32] The Tribunal notes that the applicant also referred to the Human Rights Act 2004 which is mentioned in the applicant submissions dated 24 September 2021 at page 4, but no further arguments were made in the proceedings about this legislation.
[33] Applicant’s submissions dated 24 September 2021, page 8
[34] Applicant’s submissions dated 15 November 2021, page 11
[35] Applicant’s submissions dated 11 April 2022, page 5
The applicant also sought compensation for hurt, humiliation and distress derived from the federal legislation. As mentioned above, the Tribunal has no power in relation to this claim therefore will make no further comments about it.
Costs
The applicant claimed $5,000 for legal costs. The Tribunal notes that the tribunal’s power to award costs is stated in section 48 of the ACAT Act.[36] No grounds exist for the award of legal costs in the present case therefore the Tribunal will no longer deal with this part of the claim.
The respondent’s contentions in the discrimination proceedings
Protected attribute/s
[36] D'Silva & Anor v Canberra Strata Pty Ltd & Anor [2022] ACAT 79
The respondent argued that the applicant does not possess a protected attribute for the purposes of the Discrimination Act and does not have standing under the Discrimination Act to bring a claim for discrimination.[37] Further, the respondent contended that the discrimination claim was doomed to fail because none of the actions alleged against the respondent were actions taken because the applicant has any association with disabled persons.[38]
[37] Respondent's response dated 11 October 2021 at [10]
[38] Respondent's response dated 11 October 2021 at [11]
The respondent argued that pursuant to section 53CA of the HRC Act, the applicant bears the responsibility of establishing that he has been unlawfully discriminated against by the actions of the respondent. Although the respondent addressed both direct and indirect discrimination in its submissions,[39] the Tribunal will concentrate on the arguments about indirect discrimination considering that the applicant expressly relied upon this ground, as discussed above. The respondent denied that the applicant possesses the protected attributes which would allow him to establish that he had been unlawfully discriminated against by the respondent. Specifically, the respondent commented that the applicant does not claim that he, himself, has a disability pursuant to section 7(1)(e) of the Discrimination Act. As stated by the respondent “it is not possible for the applicant to be discriminated against on the basis of a disability he does not have.”[40]
[39] Respondent's response dated 11 October 2021 at [9] ff
[40] Respondent's response dated 11 October 2021 at [18]
With regard to the applicant’s association with disabled people, the respondent argued that the term ‘association’ is not further defined in the Discrimination Act however the term is not unlimited in scope. Specifically section 7(1)(c) includes the parenthetical example of having an association “as a relative or otherwise” which implies that the “association” with – in this case a disabled person – must be of a close or immediate nature, that is, a family member or carer, as opposed to a service provider.[41] The respondent further asserted that to infer otherwise would render the entirety of section 7 meaningless as there would be no need to provide a list of protected attributes in circumstances because the legislation can be argued to apply to any individual with a broad scope “association” with “a person who is identified by reference to another protected attribute.”[42] Necessarily, the respondent submitted, the Tribunal must infer that an association in this context is limited to certain types of relationships between individuals. A spouse or carer of a person with a protected attribute is different from the taxi driver or waiter who provides a service to a person with a protected attribute.[43] The respondent therefore argued that the applicant, on the basis of being a business owner and service provider, does not fall even under a broad definition of having an “association” with a disabled person.[44] Consequently, the applicant is neither a person with a protected attribute, nor does he have an “association” with a person with a protected attribute.[45]
[41] Respondent's response dated 11 October 2021 at [19]
[42] Respondent's response dated 11 October 2021 at [20]
[43] Respondent's response dated 11 October 2021 at [20]
[44] Respondent's response dated 11 October 2021 at [21]
[45] Respondent's response dated 11 October 2021 at [22]
In its later submissions, the respondent argued that the word “association” in section 7(1)(c) of the Discrimination Act cannot be given its plain English meaning of “a connection between people” (as argued by the applicant) because section 7 provides a closed list of attributes to which the legislation applies. If the plain English meaning was applied, the definition would be so broad as to capture almost any relationship or contact between any two or more people. The respondent gave examples of connections between two people that may arise from those people taking the same bus to work or attending the same coffee shop each morning. A group of students who attend a specific lecture over the course of the semester may have a connection with the lecturer. Each of these examples may amount to “a connection between people” and therefore an “association” for the purposes of plain English communication,[46] However, section 7 is exhaustive in its classification of attributes to which the Discrimination Act applies. It is not an open list and cannot be said to apply to all members of society.[47] The respondent submitted that interpretation of the term ‘association’ requires a person to have a close relationship with a person with a protected attribute in order to have the relevant ‘association’.[48] Therefore, the respondent submitted, a more narrow definition of ‘association’ must be accepted so as to give effect to the intention of the Discrimination Act that it applies to a closed list of attributes.[49] The respondent also questioned whether the applicant could be said to be in a business relationship with disabled people[50] but noted that the applicant has brought this claim in his personal capacity and not on behalf of the business.[51]
Who is the proper applicant?
[46] Respondent's response dated 26 November 2021 at [10]-[12]
[47] Respondent's response dated 26 November 2021 at [10]-[12]
[48] Respondent's response dated 26 November 2021 at [13]
[49] Respondent's response dated 26 November 2021 at [14]
[50] Respondent's response dated 26 November 2021 at [22]
[51] Respondent's response dated 26 November 2021 at [23]
As stated above, the applicant alleged that he brought his claim for indirect discrimination on his own behalf and on behalf of the business that conducts the physiotherapy practice in the Melbourne Building. As mentioned above, the respondent submitted that the claim has been brought by the applicant in his personal capacity and not on behalf of the business. The respondent argued that the Tribunal ought not blur the lines between the applicant’s claim on the one hand and the entity standing behind the business on the other. The applicant is the director of Sport, which owns the assets that make up the business. The company operates the business of Sport and Spinal Physiotherapy. The sole shareholder of Sport is Zoeva Pty Limited (Zoeva).[52] The applicant is the sole shareholder and director of the Zoeva.[53] The respondent submitted that if the applicant suffered a loss in his personal capacity, that loss is not pleaded. To the extent that the business (or more accurately, Sport) has suffered a loss, it is not clear if the losses would flow to the applicant. This is also relevant to the standing and jurisdiction of the tribunal, as Sport did not make a complaint to the HRC which has been referred to the tribunal for determination.[54]
Causation
[52] Respondent's response dated 26 November 2021 at [30] and Annexure A (ASIC Company extract dated 24 November 2021 for Sport & Spinal Physiotherapy Pty Ltd)
[53] Applicant’s submissions dated 24 March 2022, page 19 (ASIC company statement for Zoeva Pty Ltd dated 28 February 2022)
[54] Respondent's response dated 26 November 2021 at [31]
The respondent relied upon Kirby J’s judgment in IW v City of Perth[55] who stated that it is not enough to show that the unlawful consideration was trivial or insubstantial. It must have played a truly causative part in the decision of the alleged discriminator.[56]
[55] (1997) 191 CLR 1; [1997] HCA 30
[56] (1997) 191 CLR 1 at 63
The respondent argued that the imposition of a condition or requirement was not because of any protected attribute of the applicant. The obstruction of the colonnade (which the respondent denied) would only be unlawful discrimination if the colonnade was blocked to deter disabled people from accessing the Melbourne Building. The respondent argued there was a clear path of travel along the colonnade but (even if this were not the case) the applicant’s business is nonetheless accessible via the footpath.[57] The respondent further submitted that to the extent that any fittings narrow the accessible path through the colonnade, sufficient room remains for a person in a wheelchair (or other mobility aids) to travel along that path.[58]
[57] Respondent's response dated 11 October 2021 at [49]
[58] Respondent's response dated 11 October 2021 at [51]
The respondent referred to the statements provided by the applicant in support of his claim. It argued that the statement of Paul Wright does not comment on the specific accessibility of the respondent’s building, nor on the business.[59] The respondent conceded that Mr Dearling has experienced difficulty with access to the business as a result of “furniture and people” in the colonnade area,[60] but commented that Mr Dearling did not go on to say whether he has ceased to attend the business as a result of this difficulty in accessibility.[61] Although the respondent did not challenge Mr Dearling’s statutory declaration, it submitted that no causal link can be drawn between Mr Dearling’s experiences and the alleged loss to the applicant.[62]
[59] Respondent's response dated 26 November 2021 at [51]
[60] Respondent's response dated 26 November 2021 at [52]
[61] Respondent's response dated 26 November 2021 at [52]
[62] Respondent's response dated 26 November 2021 at [53]
The respondent discussed Ms Madden’s statement and argued that, by her own admission, there is sufficient room for a personal mobility scooter or an able‑bodied person to pass through the colonnade – simply not always at the same time.[63] In circumstances where one or the other must pass, no one of the parties is more disadvantaged than the other having to wait for the other person to pass. Speculation to the contrary is not sufficient to substantiate, nor relevant to the applicant’s claim.[64] The respondent argued that, taken at their highest, the applicant’s evidentiary statements demonstrate two clients have experienced difficulty in accessing the business, and one of them cancelled several appointments.[65]
Disadvantage not to the applicant
[63] Respondent's response dated 26 November 2021 at [56]
[64] Respondent's response dated 26 November 2021 at [56]
[65] Respondent's response dated 26 November 2021 at [58]
As stated above, when applied to these proceedings, the applicant argued that indirect discrimination would occur by the placement of furniture by the respondent which has the effect of disadvantaging the applicant because the applicant has an association with a person with a disability.[66] In response to this argument, the respondent said that the disadvantage alleged by the applicant is not a financial loss to the applicant, rather it is a financial loss to Sport and in this case the claim has not been brought by Sport and the applicant cannot claim for a loss suffered by Sport (that is not a party to this proceeding) without having provided evidence of the way in which the losses of the company flow to the applicant.[67] In this case, the only shareholder of Sport is another corporate entity. The corporate entity has no association with clients in that it operates the business purely for its own profit.[68] The respondent argued that the Tribunal cannot determine with any degree of certainty whether any alleged loss to the company has disadvantaged the applicant.[69] In any case, although the respondent denied discrimination, the fundamental submission of the respondent is that the proper applicants or complainants are the actual members of the disabled community.[70]
Claim for compensation
[66] Respondent's response dated 26 November 2021 at [34]
[67] Respondent's response dated 26 November 2021 at [39]
[68] Respondent's response dated 26 November 2021 at [39]
[69] Respondent's response dated 26 November 2021 at [42]
[70] Respondent's response dated 26 November 2021 at [43]
Regarding the applicant’s claim for compensation, the respondent denied that the calculation provided by the applicant for loss of revenue is appropriate in the circumstances.[71] Additionally, the respondent contended that the applicant was claiming that all reduced revenue was as a result of discrimination by the respondent and he had not given consideration to any other causes for the decrease in revenue. With regards to compensation for hurt and humiliation, the respondent denied that the applicant has an entitlement to any such compensation because such compensation would be payable to the applicant’s disabled clients. Therefore, such compensation, if payable at all, ought not be payable to the applicant.[72]
[71] Respondent's response dated 11 October 2021 at [58] ff
[72] Respondent's response dated 11 October 2021 at [62]
The respondent also submitted that it is a gross overstatement to extrapolate a trend based on the experiences of Ms Madden.[73] It stated that either there is a demonstrable trend, in support of which it was open to the applicant to provide further evidence, or a reduction in the income of the business is due to a number of other factors which do not relate to the alleged discrimination.[74] Further, it remains unclear how the applicant has “normalised” data relating to the COVID‑19 period.[75]
The applicant’s contentions in reply in the discrimination proceedings
[73] Respondent's response dated 26 November 2021 at [60]
[74] Respondent's response dated 26 November 2021 at [60]
[75] Respondent's response dated 26 November 2021 at [61]
As discussed above, the applicant provided submissions which showed that Zoeva was 100% owned by the applicant in his personal capacity.[76]
The applicant’s contentions in the unit title proceedings
[76] Applicant’s submissions dated 24 March 2022, page 16
In summary, the applicant’s claim in the unit title proceedings is that the respondent:
(a)has not granted a special privilege under section 112A of the Unit Titles Management Act 2011 (UTM Act);
(b)is in violation of requirements to provide maintenance to common property; and
(c)ought not approve any applications for the use of the common property.
Remedies sought by the applicant in the unit title proceedings
The remedies sought in the unit title proceedings were that the Tribunal make orders for:
(a)The owners of units 1, 2 and 3 to notify their tenants within seven days that no special privilege has been provided for use of the colonnade area.
(b)The passing of a resolution to issue infringement notices to the owners of units 1, 2 and 3 on the basis they are allowing their tenants to use the colonnade common property without the use of a special privilege.
(c)The owners to issue default notices to their tenants if they have not removed all items in the colonnade within seven days and require their tenants to cease using common property because their use is in breach of the body corporate rules in terms of unreasonably interfering with the use and enjoyment by other members of the corporation.
(d)UP 836 to pay for a survey for exact measurement of the colonnade area outside each ground floor tenancy.
(e)Units 1, 2 and 3 to repay all maintenance for the colonnade since 2014 as well as contribute to a special levy for maintenance costs at the same rate as the annual ACT Government outdoor dining permit fees for using at least the inner and outer 1.5m of the colonnade area since 2014.[77]
[77] Applicant’s submissions dated 24 September 2021, pages 9-10
The applicant claimed that section 112A of the UTM Act applied to the present dispute. The applicant argued that no special privilege had been granted to the owners of units 1, 2 and 3 to use the colonnade (in fact a motion to this effect was lost at a general meeting on 25 May 2020) yet these owners have allowed their tenants to use the common property by placing furniture on the colonnade without permission.[78] The furniture and other items placed on the colonnade impeded access for the applicant’s disabled clients. The applicant also claimed that although the Executive Committee could approve an application by a member of the corporation to use the common property if the use would not unreasonably interfere with the reasonable use and enjoyment of the common property by other members of the corporation, the applicant’s unit 4 has experienced numerous occasions of unreasonable interference, including impeded access along the colonnade and at the entrance to the premises. There have been several complaints forwarded to the Owners Corporation showing an interference of enjoyment by Sport clients and staff.[79]
[78] Applicant’s submissions dated 24 September 2021, pages 8-9
[79] Applicant’s submissions dated 24 September 2021, page 9. For examples of the complaints, see applicant’s submissions dated 11 November 2021 (exhibit A3) pages 17-23.
The applicant filed submissions after the first hearing where updated orders were sought in the unit title proceedings.[80] The applicant sought a variety of remedies including special privileges, orders related to the tenancies, various delegations and references to the Uncollected Goods Act 1996.[81]
[80] Applicant’s submissions dated 24 March 2022 pages 6-14
[81] Applicant’s submissions dated 24 March 2022 pages 6-14
In later submissions, the applicant sought orders for special privileges to be granted to use the common property for the tenants of units 1, 2 and 3 but it is not clear how these orders would progress the applicant’s case.[82] The applicant also claimed $110,338 as compensation in the unit title proceedings less any monies paid as compensation in the discrimination proceedings and the $2,000 of this financial compensation would be given to the Dylan Alcott foundation.[83] When uncertainty was expressed in the hearing about the tribunal’s jurisdiction in relation to this sum in the unit title proceedings, the applicant adjusted the amount claimable to $25,000, less $2,000 payable to the Dylan Alcott foundation.[84]
The respondent’s contentions in the unit title proceedings
[82] Applicant’s submissions dated 24 March 2022 pages 145-146
[83] Applicant’s submissions dated 24 March 2022 page 146
[84] Applicant’s submissions dated 4 July 2022 at [9]
The respondent argued that the orders sought by the applicant in the unit title proceedings were “excessive, unreasonable and outside the jurisdiction of the tribunal.”[85] The respondent argued that is not the role of the tribunal to order a special privilege be granted or not granted.[86] In particular, the respondent argued that the applicant is not prevented from calling for a meeting of the Owners Corporation to be held, nor from putting forth resolutions.[87] The respondent confirmed that a motion had been put to a general meeting held on 15 February 2022 regarding the use of the colonnade. The special resolution did not pass and the effect of this was that no special privilege for the use of the colonnade was granted to any unit. The respondent argued that the process was fully in keeping with the legislative and procedural requirements for calling a meeting and voting on proposed matters. The respondent stated that it is not necessary or appropriate for the Tribunal to intervene where there is no dispute that the normal administrative process is being followed.[88]
[85] Respondent's submissions dated 3 May 2022 at [4]
[86] Respondent's submissions dated 3 May 2022 at [5]
[87] Respondent's submissions dated 3 May 2022 at [6]
[88] Respondent's submissions dated 3 May 2022 at [6]
Regarding the specifics of the applicant’s claim in the unit title proceedings, the respondent did not dispute that a special privilege under section 112A of the UTM Act has not been granted and conceded that no applications have been made to approve the use of the common property.[89] The respondent disputed that it was in violation of the requirements to maintain the common property, stating that the colonnade area is regularly cleaned and the relevant ground floor unit owners hold public liability insurance which includes the respondent as an interested party.[90] The respondent invited the applicant to put his proposed orders to the respondent at a general meeting in the form of a resolution or other proposal for discussion and consideration and this course should be pursued rather than seeking to have the tribunal make orders of such a specific and expansive nature. The orders sought by the applicant in the unit title proceedings were “not justified in the circumstances.”[91]
[89] Respondent's submissions dated 3 May 2022 at [9]
[90] Respondent's submissions dated 3 May 2022 at [10]
[91] Respondent's submissions dated 3 May 2022 at [12]
The respondent said that there is no basis for the applicant to claim the amount of $25,000 as compensation in the unit title proceedings and denied that the applicant was entitled to the same.[92]
Consideration
The discrimination proceedings
[92] Respondent's submissions dated 3 May 2022 at [13]-[14]
The Tribunal has concluded that the neither the applicant, nor Sport, which is the body that the applicant sought to substitute as applicant in the proceedings, has satisfied the requirements of the Discrimination Act and the HRC Act. In particular, the Tribunal is not satisfied that:
(a)the applicant or Sport have the relevant protected attributes under the section 7 of the Discrimination Act; or
(b)the respondent imposed a condition or requirement that has the effect of disadvantaging another person under section 8(3) of the Discrimination Act (the Tribunal will assume that the applicant has established that a condition or requirement has been imposed under section 8(3), but that condition or requirement is not because the other person has one or more protected attributes under section 8(3)); or.
(c)the applicant has proved an entitlement to compensation under section 53E(2)(c) of the HRC Act.
When applying the Discrimination Act, the Tribunal is obliged to take into account section 4AA of that Act which states that the Act must be interpreted in a way that is beneficial to a person who has a protected attribute to the extent that it is possible to do so consistently with the objects of the Discrimination Act and the HRC Act. In interpreting the Discrimination Act, the Tribunal has taken an approach to interpretation that is beneficial to people with protected attributes but has concluded that neither the applicant nor Sport are people with protected attributes.
Even if the section 7 element is satisfied, the applicant has not proved that there is a condition or requirement that has been imposed by the respondent that has the effect of disadvantaging the applicant or Sport because the other person has one or more protected attributes (section 8(3)). This element of causation is pivotal to the Discrimination Act and the obligation to prove causation has not been removed by section 4AA.
The Tribunal has also taken into account the rebuttable presumption in section 53CA of the HRC Act. This rebuttable presumption arises in cases of indirect discrimination if the applicant establishes that the condition or requirement has, or is likely to have, an effect of disadvantaging the other person (section 53CA(2)(a)(ii)) and presents evidence that would enable the ACAT to decide in the absence of any other explanation that the effect of disadvantage in the other person is because of a protected attribute of the other person (section 53CA(2)(b)(ii)). This presumption is rebutted in the case of indirect discrimination if the respondent establishes that the effect of disadvantage in a person is not because of a protected attribute (section 53CA(3)(b)).
Protected attributes
There is no dispute between the parties that the clients of Sport may from time to time suffer from a disability pursuant to section 5AA of the Discrimination Act. The Tribunal notes that the definition of disability in section 5AA(2)(d) of the Discrimination Act includes reliance on a “disability aid”. ‘Disability aid’ means the equipment that is generally recognised to alleviate an effect of a disability.[93] The Tribunal agrees with the arguments made by the applicant that the clients of Sport are very likely to suffer from a disability in the malfunction of a body part. Such a disability would include a temporary disability. The Tribunal also accepts that many clients of Sport may have a lower body disability that may impact on their capacity to navigate around obstacles that might impede their access to the premises of Sport.[94]
[93] Section 5AA(3)(a) of the Discrimination Act
[94] Applicant’s submissions dated 15 November 2022, page 2
More complicated is the question of the applicant’s and/or Sport’s association with the protected attribute of disability. In the current proceedings, there would be no difficulty if persons with a disability made a complaint under the Discrimination Act about access to premises under section 19 of the Discrimination Act. However, in this case the further protected attribute that is alleged by the applicant is more remote – it is based on the applicant’s association with persons who have the protected attribute of disability pursuant to section 7(1)(c). The Tribunal repeats the wording of this provision which assists its interpretation. The provision states as follows:
association (whether as a relative or otherwise) with a person who is identified by reference to another protected attribute.
The Tribunal and solicitors acting for the respondent searched for relevant provisions and case law in other jurisdictions that might assist the interpretation of this provision but found nothing comparable.[95] Therefore the Tribunal will interpret the provision by adopting an orthodox approach to statutory interpretation,[96] particularly focussing upon the text of the provision in the context of the Discrimination Act.[97]
[95] Some State legislation requires a personal association e.g., section 6(q) Equal Opportunity Act 2010 (Vic). Section 4(1)(e) of the Disability Discrimination Act defines ‘associate’ as including ‘another person who is in a business, sporting or recreational relationship with the person’. However, as far as the Tribunal is aware, the ambit of the business relationship has not been examined in the case law. In Eisele v Commonwealth of Australia [2018] FCA 15 (Eisele), Moshinksy J accepted that the applicant was in a business relationship with an associate with a disability, but Eisele is distinguishable from the present case.
[96] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
[97] For discussion of this approach see Lisa Burton Crawford and Dan Meagher, ‘Statutory Precedents under the “Modern Approach” to Statutory Interpretation’ (2020) 42(2) Sydney Law Review 209, 217. For an example, see The Owners - Units Plan No 1475 v Davidson [2022] ACAT 10
The reference to the parenthetical wording “(whether as a relative or otherwise)” provides an example of the type of association that is contemplated by this provision. Importantly, the Tribunal is persuaded by the respondent’s arguments that the inclusion of association as a protected attribute in itself does not invite an open-ended approach to protected attributes. Therefore, the relevant association must establish some proximity between the applicant and the person with another protected attribute. The provision contemplates a closer association than the plain English meaning of “a connection between people” contended by the applicant. Therefore, the mere provision of services to the person with the protected attributes does not establish the requisite ‘association’. The Tribunal acknowledges that a business relationship between a person with a protected attribute and another person may, in some circumstances, constitute a relevant association for the purposes of section 7(1)(c). However, the mere fact that a person with a disability is a client of a service provider is insufficient to establish the relevant nexus under section 7(1)(c). The examples provided by the respondent in its submissions illustrate the point effectively and these examples are set out in the summary of the respondent’s submissions above.
The consequence of the finding that the applicant does not have the relevant protected attribute for the purposes of section 7 means that the substitution of Sport as applicant in the proceedings would make no difference to the outcome because although Sport runs the relevant business, this relationship or association with the persons who have the protected attribute of disability is still too remote for the purposes of protection under the Discrimination Act. The Tribunal has dealt with this issue by refusing leave to Sport to be substituted as applicant in the discrimination proceedings and this is discussed in more detail below.
Indirect discrimination – the requirement of a condition or requirement
There are some questions about whether the placement of furniture upon the colonnade constitutes a condition or requirement under section 8 of the Discrimination Act. The applicant argued that the definition of ‘doing an act’ under section 4A of the Discrimination Act includes an omission, which means that the failure of the unit owners to require that the furniture be removed from the common property constitutes a condition or requirement under section 8(3) of the Discrimination Act. The respondent disputed this interpretation. The Tribunal is persuaded by the applicant’s argument and notes that the tribunal has held that inaction and failure to respond can amount to the imposition of a condition or requirement under the combination of sections 4A and 8(3) of the Discrimination Act.[98] Such an interpretation is consistent with the Tribunal’s obligation under section 4AA of the Discrimination Act to beneficially interpret the provision.[99] Therefore, for the purposes of dealing with the applicant’s argument, the Tribunal will assume that this element of section 8(3) is established.
Causation
[98] See ACT v Phillips [2021] ACAT 122 at [47] ff discussing Phillips v ACT [2021] ACAT 22
[99] See Phillips v ACT [2021] ACAT 22 at [37], discussed in ACT v Phillips [2021] ACAT 122 at [57]
If the placement of the furniture constitutes a condition or requirement, it must have the further effect under section 8(3) of the Discrimination Act of disadvantaging persons with protected attributes. The placement of furniture may disadvantage people with a disability. This was established by the evidence of Mr Dearling and Ms Madden about the furniture impeding their access to the premises. This is set out in some detail in the summaries of the submissions above and is also discussed under the reasoning below about the furniture constituting an unreasonable interference for the users of unit 4, for the purposes of the unit title proceedings.
However, the putative condition or requirement does not disadvantage the applicant or Sport per se because they do not possess the protected attribute of disability or the further protected attribute of association with a person who has a disability, as discussed above.
Compensation
Whether the alleged conduct caused loss or damage to the applicant or Sport
Although the Tribunal has concluded that neither the applicant nor Sport had the relevant protected attribute/s, if the Tribunal is wrong on this point and the foregoing is capable of constituting an ‘unlawful act’ under the Discrimination Act, the applicant must prove that he or Sport suffered loss or damage because of the unlawful act to obtain an order for compensation under section 53E(2)(c) of the HRC Act. The Tribunal is not persuaded that the applicant or Sport have proved loss or damage that would support the award of compensation under section 53E of the HRC Act.
The material provided by the applicant did not prove that the alleged discrimination caused the alleged loss. The Tribunal agrees with the respondent that the loss or damage cannot be assumed by extrapolation from the statement of Ms Madden that she cancelled appointments due to access difficulties. Further, although the applicant alleged a drop in revenue in the city practice it was not clear how this may have occurred. The applicant compared the revenue of the city practice to another physiotherapy practice situated in the city, but it was unclear how comparable that practice was to the applicant’s business.[100] Similarly, the respondent noted that the applicant’s material did not adequately adjust for the drop in revenue due to COVID-19. The Tribunal agrees with the respondent on this point and notes that the applicant’s adjustment for COVID-19 was about 3 months in the last quarter of FY 2019-2020[101] but it seems likely that it should have been for a longer period.
[100] Applicant’s submissions dated 24 March 2022, page 144
[101] Applicant’s submissions dated 24 September 2021, page 8
The Tribunal agrees with the respondent’s submission that it was open to the applicant to provide further and better evidence of loss or damage to establish a general entitlement to compensation under section 53E(2)(c) of the HRC Act e.g., by a witness statement by someone with relevant expertise but the applicant did not do so.
The alleged quantum of loss
The applicant also did not prove the quantum of loss that he alleged. The applicant provided global figures about a drop in revenue of the business between mid‑2019 (when he first made a complaint to the respondent about the furniture) compared with the revenue figures of the business in subsequent financial years.[102] He said the figures proved that the city practice was growing in its infancy in May 2015 but there was a sharp drop in growth after FY 2018-2019.[103] As stated above, the first complaint to the Owners Corporation was in June 2019 but “the furniture was building up gradually before this” and was evidently starting to impact revenue in FY 2018-2019.[104] The applicant said that the comparison with another physiotherapy practice in the city (referred to above) showed a 17.78% loss in FY 2020-2021[105]
[102] Applicant’s submissions dated 24 September 2021, page 8; applicant’s submissions dated 24 March 2022, page 6
[103] Applicant’s submissions dated 24 March 2022, page 26
[104] Applicant’s submissions dated 24 March 2022, page 26
[105] Applicant’s submissions dated 24 March 2022, page 28
There was some inconsistency in the amounts that were claimed by the applicant. At first, the applicant claimed he was entitled to 20% of the total loss in line with Gama v Qantas.[106] Therefore, the comparison with the other city practice led to a claim of $32,454.[107] Approximately three weeks later and comparing the same city practice, the applicant claimed the sum of $110,338.[108] Although the loss was calculated differently, it is hard to reconcile these figures.
[106] Presumably Gama v Qantas Airways Ltd [No 2] [2006] FMCA 1767. See, for example, applicant’s submissions dated 24 March 2022, page 6
[107] Applicant’s submissions dated 24 March 2022, page 28
[108] Applicant’s submissions dated 11 April 2022
The Tribunal concludes that the applicant did not prove the quantum of loss claimed by him.
The substitution of Sport as applicant in the discrimination proceedings
At the hearing in June 2022, leave was given to the applicant to make an application to substitute Sport as applicant in discrimination proceedings.
The Tribunal’s power to substitute Sport is set out in rule 39 of the ACT Civil and Administrative Tribunal Rules 2020 (the ACAT Rules) which states at subrule 39(3) that the tribunal may order that a person be substituted for a party to the proceeding. A person must be included as a party if their presence is necessary to enable the tribunal to adjudicate effectively and completely on all issues in dispute in a proceeding: subrule 39(1).
The Tribunal has decided that leave should not be granted to substitute Sport as applicant in the discrimination proceedings. A “swap” of Sport for the applicant at this stage of the proceedings is not a straightforward exercise. The respondent argued against the substitution of Sport, contending that the tribunal’s jurisdiction depends upon a referral from the HRC. In this case, the complaint made to the HRC and the subsequent referral were in the applicant’s personal capacity. The respondent referred to the process that is set out in the HRC Act and the Discrimination Act and argued that this process should be followed, and the respondent would suffer significant prejudice by a late substitution. The applicant stated that the relevant form provided by the HRC did not contemplate an applicant other than him in his personal capacity. Division 4.2A of the HRC Act refers to “complainant” and “complaint”. ‘Complainant’ is defined in the Dictionary of the HRC Act as the person who made the complaint and ‘complaint’ is defined in section 53 of the HRC Act as including a discrimination complaint.
The Tribunal notes that the definition of ‘person’ under section 160 of the Legislation Act 2001 would not preclude a corporate complainant but takes the point that the process under division 4.2A of the HRC Act contemplates the involvement of the HRC before a referral to ACAT. The Tribunal is disinclined to meddle with this process, and it is unnecessary for it to do so on this occasion because neither the applicant nor Sport (as the putative substituted applicant) have satisfied the other elements of the Discrimination Act as set out above.
The application to substitute Sport as applicant in discrimination proceedings is refused.
Conclusion – the discrimination proceedings
The discrimination claim has been dismissed because the Tribunal has found that neither the applicant nor Sport (as the putative substituted applicant) possessed the relevant protected attributes for the purpose of the application of the Discrimination Act under section 7(1). Further, although the Tribunal assumed that a condition or requirement was imposed under section 8(3) of the Discrimination Act, the Tribunal has found that the applicant did not prove that the alleged condition or requirement had the effect of disadvantaging the applicant or (even if it did) that this caused the loss to the applicant, either in general or by way of proof of a certain quantum of loss to justify the award of compensation under section 53E of the HRC Act.
The unit title proceedings
Substitution of Frogbott as applicant in the unit title proceedings
As discussed above, the applicant applied to substitute Frogbott for Mr Honeybrook as applicant in the unit title proceedings. Frogbott is the owner of unit 4, where the physiotherapy practice is conducted by Sport.
Unlike the relatively complex machinery that applies to discrimination proceedings under the Discrimination Act and the HRC Act, the question of who are the parties to a unit title proceedings is stated by section 125 of the UTM Act:
125 Disputes—generally
(1)This section applies to a dispute between 2 or more of the following:
(a)the owners corporation for a units plan;
(b)the executive committee;
(c)an owner or occupier of a unit in the units plan;
(d)the manager (if any) for the owners corporation;
(e)a service contractor for the owners corporation;
(f)an executive member.
(2)A party to the dispute may apply to the ACAT for an order in relation to another party if the application relates to the dispute.
Mr Honeybrook may have standing under section 125 of the UTM Act as an occupier of the unit but this is uncertain because the occupier may be Sport. Although, strictly speaking, Frogbott should have filed an authority to act naming Mr Honeybrook as its representative under section 41 of the ACAT Rules, as the sole director and shareholder of Frogbott Mr Honeybrook can fulfil this function so the Tribunal dispenses with the requirement of the authority for the purposes of the application for leave.
Applying rule 39 of the ACAT Rules and noting that Frogbott’s presence is necessary to enable the Tribunal to adjudicate effectively and completely on the issues in dispute in the unit title proceedings, the Tribunal grants the applicant’s application to substitute Frogbott as the applicant in the proceedings because it is the owner of a unit in the units plan pursuant to section 125(1)(c) of the UTM Act.
Remedies sought by the applicant in the unit title proceedings
As stated above, the applicant filed several submissions seeking various orders in the unit title proceedings.[109] Many of the orders sought were complicated and/or unclear.[110] These remedies were not pursued at the hearing and the Tribunal treats them as having been abandoned. The Tribunal will focus upon the remedies sought by the applicant that may be awarded under section 129 of the UTM Act that would implement his desire to remove the furniture and to receive compensation. As stated above, the applicant sought compensation in the amount of $110, 338[111] but that was subsequently reduced to $25,000. The applicant did not nominate the particular power that would be exercised by the Tribunal under section 129 UTM Act if it was minded to make an order for compensation.
Rules applying to the common property
[109] Applicant’s submissions dated 24 March 2022, pages 6-14
[110] Applicant’s submissions dated 24 March 2022, pages 6-14
[111] Applicant’s submissions dated 11 April 2022, page 7
There is no dispute between the parties that the colonnade is part of the common property for UP 836. This is evidenced by the units plan diagram.[112]
[112] Exhibit R5 Units Plan Number 836, page 5
The rules that apply in the unit title proceedings are the Default Rules. Default Rule 1.7 states as follows:
Use of common property
A unit owner must not use the common property, or permit it to be used, to interfere unreasonably with the use and enjoyment of the common property by an owner, occupier or user of another unit, other than in accordance with a special privilege rule.
The respondent did not dispute that no special privilege has been granted to the unit owners of units 1, 2 and 3 to permit their tenants to use the common property, that is the colonnade, by placing furniture upon the colonnade. The respondent argued that the placement of furniture had occurred over time, and it would unduly prejudice the tenants by requiring it to be removed. This is discussed in more detail below. The Tribunal notes that the issue has been raised directly by the applicant to the respondent generally and specifically at various times to the owners of units 1, 2 and 3. The Tribunal also notes that the applicant has put several resolutions to meetings of the Owners Corporation in an attempt to resolve the issue. None of the resolutions has resulted in the removal of the furniture or the grant of a special privilege to place furniture on the common property.
At the request of the respondent, the Tribunal hearing was stood over from 17 June 2022 to 20 September 2022 to enable resolutions to be put. The submissions and evidence led at the hearing on 20 September 2022[113] showed that a general meeting had been held of the Owners Corporation on 14 July 2022 but all motions related to the unit title proceedings were deferred.[114] Although there was an email exchange between some of the unit owners after the general meeting about the possibility of meeting up again to discuss the furniture on the colonnade, there was no commitment to doing so. By email dated 6 September 2022 one of the owners of unit 1 stated as follows:
We better [sic] finish with the ACAT first and down the track we’ll meet to discuss the problems for UP 836.[115]
[113] Witness statement of Matthew Marinelli dated 19 September 2022 – Exhibit R10
[114] Witness statement of Matthew Marinelli dated 19 September 2022 – Exhibit R10 at [6] and annexure C
[115] Exhibit A8
Taking into account the evidence led at the hearing generally and in particular the evidence led at the hearing on 20 September 2022 the Tribunal is not satisfied that any serious effort was made to resolve the issue in the general meeting.
Orders in the unit title proceedings
The question is therefore whether the Tribunal should exercise the power under section 129 of the UTM Act requiring a party to do or refrain from doing a stated thing. The Tribunal is satisfied that the owners of units 1, 2 and 3 have permitted the placement of furniture along the colonnade over several years and this constitutes a use of the common property that breaches Default Rule 1.7 because it unreasonably interferes with the use and enjoyment of the common property by the owners, occupiers and users of unit 4. The Tribunal notes that Rule 1.1 of the Default Rules defines ‘owner, occupier or user of a unit’ to include an invitee or licensee of an owner, occupier or user of the unit. As stated above, no special privilege has been given to use common property in this manner.
Evidence in support of the orders
In support of the Tribunal’s finding that an unreasonable use and enjoyment of the common property has occurred, the Tribunal relies upon the evidence was led by the applicant in the discrimination proceedings about access to the premises by Ms Madden and Mr Dearling as invitees of the applicant. This evidence was sufficient to establish a usage that had unreasonably interfered with the use and enjoyment of the common property by Frogbott as owner, the applicant and/or Sport as occupiers, and the clients of Sport as users of unit 4, which includes their status as invitees.
The Tribunal notes the evidence of Charles Dearling[116] who stated that on a number of occasions he has had difficulty accessing the property because of “an obstacle course” caused by furniture and people crowding across the access route “causing anyone wishing to enter to have to take a zigzag path into the building.”[117] He stated that the furniture from Nguyens and Smiths has partially blocked the entrance to Sport so he had to “to take an indirect path to enter the building” and had to make “sudden” changes in direction.[118] He also stated that he had to take an uneven path to gain access to the building.[119] The Tribunal notes that Mr Dearling was not available for cross examination during the hearing therefore the respondent did not have an opportunity to test this evidence however Mr Dearling’s statutory declaration was accepted without objection into evidence and his declaration was supplemented by the witness statement and cross examination of Ms Madden.
[116] Statutory declaration of Charles Dearling dated 17 September 2021
[117] Applicant’s submissions dated 15 November 2021, page 41 (Exhibit A4)
[118] Applicant’s submissions dated 15 November 2021, page 41 (Exhibit A4)
[119] Applicant’s submissions dated 15 November 2021, page 41 (Exhibit A4)
Ms Madden stated that the amount of available space for pedestrians to mobilise along the colonnade has contracted due to the placement of the furniture. As a disabled person on a mobility scooter, she cannot mobilise alongside an able‑bodied person heading in the opposite direction. One or the other cannot pass at the same time as outdoor tables and chairs restrict access.[120] She stated that challenges to navigate safe and equal access to Sport have caused her to cancel essential appointments.[121]
[120] Applicant’s submissions dated 15 November 2021, pages 57-60
[121] Applicant’s submissions dated 15 November 2021, pages 57-60
Ms Madden attended the tribunal and was questioned by representatives of the respondent. The Tribunal recognises that Ms Madden’s evidence (as led by the applicant) was primarily directed to the issues in the discrimination proceedings. Nevertheless, the facts established by Ms Madden’s evidence also support an unreasonable interference with the use and enjoyment of the common property. The Tribunal notes the arguments made by the respondent that the clients of Sport can “go around” each other when accessing the building[122] but the unreasonableness of the interference has to be assessed by reference to the activities undertaken in unit 4 which is used by many invitees who have restricted mobility. Both Mr Dearling and Ms Madden commented that the interference was caused not only by the placement of furniture but also the people who gathered around the furniture.[123]
Appropriate orders in the unit title proceedings
[122] Respondent’s submissions dated 26 November 2021 at [56]
[123] Statutory declaration of Charles Dearling dated 17 September 2021 “on a few occasions chairs and patrons from Nguyens also spread across the approaches to the entrance.” See also transcript of proceedings, 17 June 2022, page 114 (Evidence of Catherine Madden)
The respondent conceded that the Tribunal has power to order that the furniture be removed in compliance with Default Rule 1.7.[124] In argument during the hearing, the respondent’s counsel said that the colonnade had been used for a period of time for “outdoor seating and the like”[125] by the tenants at units 1, 2 and 3. Respondent’s counsel differentiated between practicalities and the legalities. Regarding the latter, counsel stated that if the strict letter of the UTM Act were followed with respect common property there would be “nothing at all” on the colonnade, which the respondent accepts to be common property.[126] Conversely, there are practicalities to be considered, which are that the tenants of these units have come to rely on the outdoor seating to be able to viably operate their businesses.[127] Therefore making orders for the removal of things from the colonnade may be very detrimental to the unit owners and/or the tenants.[128]
[124] Transcript of proceedings, 17 June 2022, page 163
[125] Transcript of proceedings, 17 June 2022, page 186
[126] Transcript of proceedings, 17 June 2022, page 186
[127] Transcript of proceedings, 17 June 2022, page 186
[128] Transcript of proceedings, 17 June 2022, page 187
The respondent therefore made the following arguments about the appropriate order. First, if the Tribunal is minded to make an order requiring the removal of all furniture from the colonnade there should be a period of time of six or more weeks before such order takes effect. Second, any order for removal should be subject to a resolution made by the Owners Corporation pursuant to section 22 or section 112A of the UTM Act. Such a conditional order would enable the Owners Corporation to “get its act together at some future point”[129] and pass a resolution to grant the relevant special privilege/s. The Tribunal accepts the respondent’s first submission but declines to make conditional orders. The history of this matter shows that there is no certainty that resolutions regarding special privileges will be passed in the general meeting. As stated above, the hearing in June 2022 was adjourned to allow this to happen but there was no progress when the matter returned to the Tribunal in September 2022. The evidence led at the hearing in September 2022 indicated that certain members of the Owners Corporation preferred to leave the decision-making to the tribunal. The Tribunal has issued orders with a long lead time to enable the Owners Corporation to act to pass resolutions granting special privileges should it choose to do so. As requested by the respondent, this timeframe will enable arrangements to be made with the tenants of the unit owners.
[129] Transcript of proceedings, 20 September 2022, page 86
Therefore, pursuant to section 129(1)(a) of the UTM Act, the Tribunal orders that that the respondent remove all furniture on the common property, that is, the colonnade, by 21 February 2023.
The Tribunal declines to make the other orders sought by the applicant in the unit title proceedings. Considering the history of the matter, the Tribunal makes no orders about resolutions for special privileges but notes that the respondent can deal with this aspect should it decide to do so. The Tribunal also declines to make orders about the maintenance of the common property. Further, the Tribunal makes no order granting the applicant compensation for the breach of the Default Rules. Although the applicant claimed $25,000 compensation in the unit title proceedings, he relied upon the same evidence of loss or damage that was led in the discrimination proceedings. As discussed above, the Tribunal was not persuaded by this evidence, therefore no order for compensation will be made in the unit title proceedings.
Conclusion – the unit title proceedings
In the unit title proceedings, the Tribunal orders that Frogbott be substituted as applicant in the proceedings and, pursuant to section 129(1)(a) of the UTM Act, that the respondent remove all furniture on the common property, that is, the colonnade, by 21 February 2023. All other orders sought by the applicant in the unit title proceedings are refused.
………………………………..
Senior Member Prof P Spender
| Date(s) of hearing: | 20 September 2022 |
| Applicant: | In person |
| Counsel for the Respondent: | Mr Athol Opas |
| Solicitors for the Respondent: | Anna Phillips, BAL Lawyers |
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