Hulena v Owner's Corporation Strata Plan 13672

[2010] NSWADTAP 27

Appeal Panel - Internal

CITATION:	Hulena v Owner’s Corporation Strata Plan 13672 [2010] NSWADTAP 27
PARTIES:	APPELLANT Gay Hulena RESPONDENT Owner’s Corporation Strata Plan 13672
FILE NUMBER:	099035
HEARING DATES:	17 November 2009
SUBMISSIONS CLOSED:	17 November 2009
DATE OF DECISION:	23 April 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Furness G - Judicial Member; Antonios Z - Non-Judicial Member
CATCHWORDS:	APPEAL – indirect discrimination – existence of requirement or condition - whether Tribunal bound by High Court decision in State of New South Wales v Amery – evidence of common knowledge
DECISION UNDER APPEAL:	Hulena v Owners Corporation Strata Plan 13672 [2009] NSWADT 119
FILE NUMBER UNDER APPEAL:	071056
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Evidence Act 1995
CASES CITED:	State of New South Wales v Amery (2006) 80 ALJR 753 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Traderight Pty Limited v Bank of Queensland [2010 NSWSC 139 B & L Linings Pty Limited and Anor v Chief Commissioner of State Revenue [2008] NSWCA 187 Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57 IW v City of Perth (1997) 191 CLR 1 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
REPRESENTATION:	APPELLANT A Moses, senior counsel S Piedade, counsel RESPONDENT R Lancaster, senior counsel
ORDERS:	1. The Tribunal’s order that, ‘The complaint is dismissed’ is set aside 2. In substitution for that order, the following order is made: ‘The complaint is substantiated.’ 3. The issue of whether any order should be made as provided in s 108(2) of the Anti-Discrimination Act 1977 is remitted to the Tribunal as originally or similarly constituted. 4. Matter 071056 listed for case conference at 12.30 pm on Wednesday 5 May 2010.

Introduction

1 Background. In 1993 Ms Hulena bought an apartment in the Sydney suburb of Potts Point. She complained that because she has multiple sclerosis (MS) she is unable, in a practical sense, to access her apartment through any of the three available pedestrian routes (‘the pedestrian access requirement’). Ms Hulena contends that by requiring her to comply with the pedestrian access requirement the Owners Corporation (body corporate) has indirectly discriminated against her on the ground of her disability in the terms on which it has provided her with a service: Anti-Discrimination Act 1977, (AD Act) s 49M and s 49B(1)(b). The Tribunal decided that the body corporate had not breached the AD Act because it had not imposed the pedestrian access requirement on Ms Hulena. Rather, that requirement was a feature or incident of the design of a 40 year old building. In case the Tribunal was wrong in relation to that finding, it went on to consider the remaining elements of indirect discrimination and found that Ms Hulena had established each of those elements. Nevertheless, because of the initial finding, the complaint was dismissed.

2 Appeal and error in the reasons. Ms Hulena appealed against the Tribunal’s decision on a question of law. She submitted that the Tribunal had made an error of law by considering itself bound by the High Court’s decision in State of New South Wales v Amery (2006) 80 ALJR 753 (Amery) to conclude that the body corporate had not imposed the pedestrian access requirement. In its reply, the body corporate set out a part of the Tribunal’s reasoning that it sought to have reviewed. That course is permitted by Practice Note 5 (Internal Appeals: Appeal Panel Procedures) in circumstances where a party wishes to have the original reasons for decision, but not the orders, reconsidered. The error of law which the body corporate said the Tribunal had made in its reasoning was that it found that one of the elements of indirect discrimination had been established (that a substantially higher proportion of persons who do not have Ms Hulena’s disability can comply or are able to comply with the pedestrian access requirement) without any evidence to support that finding. The body corporate also submitted that even if there was some evidence to support that finding it was not sufficient to justify the Tribunal’s conclusion.

Appeal Panel's jurisdiction

3 Appeals to the Appeal Panel are governed by s 113 and s 114 of the Administrative Decisions Tribunal Act 1997 (ADT Act). In summary, the Appeal Panel’s role is:

a) to determine whether the appeal identifies a question of law;

b) if so, to determine whether any question of law has been erroneously answered;

c) if so, to determine the correct answers to the questions of law; and

d) to make such orders disposing of the proceedings before the Tribunal as are necessary, based on the findings of fact made and inferences drawn by the Tribunal and where no other conclusion is open: B & L Linings Pty Limited and Anor v Chief Commissioner of State Revenue [2008] NSWCA 187 at [126] per Basten JA discussed in Members of the Board of the Wesley Mission Council v OV and OW (No 2) [2009] NSWADTAP 57 at [3] to [5].

Legislative scheme and Tribunal's decision

4 Ms Hulena alleged that the body corporate had breached 49M(1)(b) of the AD Act. Section 49M states that:

(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.
(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

5 Indirect discrimination on the ground of disability is defined in s 49B(1)(b):

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(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 such 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. (Emphasis added)

6 The Tribunal correctly identified the issues it was required to consider in order to determine whether the body corporate had breached s 49M(1)(b). Those issues, the Tribunal’s conclusions and the findings against which the parties have appealed, are summarised below:

(a) Does the body corporate provide Ms Hulena with “services” within the meaning of the AD Act ?

Yes, the body corporate provides the service of providing accessible entrances and exits from the common property to individual apartments within the complex; (at [53])

Neither party challenged this finding.

(b) Has the body corporate, in the provision of such services, “imposed” a requirement or condition on the applicant?

No, the respondent has not “imposed” the pedestrian access requirement because the pedestrian access requirement was not imposed by a decision or practice of the body corporate. Rather, it is a feature or incident of the design of a building which was erected prior to the adoption of minimum design requirements in the Australian Standards (at [74]).

Ms Hulena submitted that the Tribunal had made an error of law in reaching this conclusion by regarding itself as being bound by the decision in State of New South Wales v Amery (2006) 80 ALJR 753.

In case this conclusion was wrong, the Tribunal went on to consider the remaining elements of indirect discrimination and the exception in s 49M in relation to unjustifiable hardship.

(c) Is Ms Hulena unable to comply with the requirement or condition, namely, the pedestrian access requirement?

Yes. Judged in a practical sense, Ms Hulena cannot presently comply with the pedestrian access requirement (at [83]).

Neither party challenged this finding.

(d) Can a substantially higher proportion of person who do not have Ms Hulena’s disability comply with the pedestrian access requirement?

Yes. Notwithstanding the absence of specific evidence, a substantially higher proportion of persons who do not have Ms Hulena’s disability can comply or are able to comply with the pedestrian access requirement (at [93]).

The body corporate submitted that the Tribunal had made an error of law in reaching this conclusion.

(e) Is the pedestrian access requirement not reasonable having regard to the circumstances?

The pedestrian access requirement in respect of route 3 is not unreasonable (at [114]).

Neither party challenged this finding.

(f) Would the provision of the claimed services impose unjustifiable hardship on the body corporate?

No. The body corporate has failed to establish that the modification of route 3 to make it accessible to Ms Hulena would impose upon it hardship of such a nature or degree as to be unjustifiable (at [124]).

Neither party challenged this finding.

7 We deal firstly with Ms Hulena’s appeal and then with the body corporate’s appeal.

Ms Hulena’s Appeal

8 Notice of Appeal. The ‘questions of law’ as identified by Ms Hulena in her Notice of Appeal were as follows:

The Tribunal erred when reaching the finding that there could be no imposition of a requirement by the respondent, by considering itself bound by the decision of the High Court in State of New South Wales v Amery (2006) ALJR 753 at [65].

The Tribunal erred by finding that there could be no imposition of a requirement by the respondent at law, in circumstances where the pedestrian access requirement was "a feature or incident of a building which was erected prior to the adoption of minimum design requirements to enable access for people with disabilities which are contained in Australian standards and which do not apply retrospectively"

9 Identification of a question of law? Our initial task is to determine whether Ms Hulena’s appeal identifies one or more questions of law and, if so, whether any question of law has been erroneously answered. The first ground identifies a question of law namely whether the Tribunal was correct when it said, at [72], that it was bound by the decision in Amery. The second ground identifies a question of law which may be expressed as whether, if bound by Amery, the Tribunal correctly understood and applied the ratio decidendi of that decision to the facts of this case.

10 Was the Tribunal ‘bound’ by the High Court’s decision in Amery? The Tribunal is only bound by the ratio decidendi of a High Court decision. The ratio decidendi has the following features:

a) it is a proposition of law, not a finding of fact; and

b) it is a necessary step in reaching the ultimate conclusion.

11 If there are two rationes decidendi, both are binding. The ratio decidendi can be distinguished from obiter dicta which, although persuasive, are not binding: Professor Rupert Cross, Precedent in English Law, Clarendon Press, 4th edition, 1991 Ch 2.

12 Summary of facts in Amery. Thirteen female casual teachers complained that the NSW Department of Education and Training had ‘indirectly’ discriminated against them on the ground of their sex in relation to their work. While the Department employed both casual and permanent employees, the Teaching Services Act 1980 distinguishes between temporary (mostly casual) and non-temporary (permanent) employees. The complaint related to the practices of the Department in setting the pay scales for casual and permanent teachers. Those pay scales were governed by an industrial Award which provided that the highest point on the pay scale for casual teachers was equivalent to only the eighth (of 13) pay increments available to permanent teachers.

13 The claim was that in order to be paid at the higher levels, it was a requirement that casual teachers obtain appointment as permanent teachers. It was alleged that this ‘requirement’ indirectly discriminated against women, because a substantially higher proportion of men than women could comply with it. Permanent teachers are subject to a mandatory direction to transfer from one teaching position to an equivalent position in another location. Casual teachers are not subject to such a direction. The disproportionate numbers of casual teachers who are female was said to have come about because family commitments tend to make female teachers less mobile and thus less able to comply with a direction to transfer to another school away from their usual place of residence. Finally, the teachers claimed that the requirement was not reasonable in all the circumstances.

14 Majority’s reasoning in Amery. The legislative provisions which were relevant in Amery were the indirect sex discrimination provisions in Part 3 of the AD Act. Those provisions are in relevantly identical terms to the provisions in Part 4A which are under consideration in this case. To be unlawful, indirect sex discrimination as defined in s 24(1)(b) must take place in an area covered by the AD Act. The area in Amery was ‘work’, specifically ‘the terms or conditions of employment which the employer affords to the employee’: AD Act, s 25(2)(a). The majority of the High Court (Gummow, Hayne and Crennan JJ; Callinan J agreeing) noted that it is unlawful for an employer, within the terms and conditions of employment afforded to the employee, to require of that employee compliance with a requirement or condition of the nature identified in s 24(1)(b).

15 The majority accepted that while the terms and conditions of employment are not restricted to the terms of any contract, they are normally defined in relation to the position to which the person has been appointed. In this case the female teachers were employed as casual teachers. The majority accepted at [79] that the Department had not required casual teachers to ‘comply with a requirement or condition’ because it cannot be ‘a requirement or condition required to be complied with in the terms and conditions of employment as a casual teacher that, in order to obtain levels of pay corresponding with levels nine to 13 of the common incremental salary scale, the employee must cease to be a casual teacher.’ As the first element of indirect discrimination had not been made out, the complaint was not substantiated.

16 The majority’s reasoning is set out at [78] to [82]:

[78] The rights and obligations attaching to the two categories of teaching staff in the Education Teaching Service are so materially different that it would be an error to speak of the appointment of a person to "the position of teacher", where one of the terms and conditions of such appointment is that that person is required to undertake work either on a permanent or on a casual basis. Applying ss 24(1)(b) and 25(2)(a) of the AD Act to the circumstances of the respondents requires that consideration be given to the terms and conditions of their employment, not as teachers, but as casual teachers.

[79] The immediate consequence of focusing upon the terms and conditions attendant upon the employment of the respondents as casual teachers is that the incongruity alluded to previously in these reasons becomes fatal to the respondents' case. It cannot be said to be a requirement or condition required to be complied with in the terms and conditions of employment as a casual teacher that, in order to obtain levels of pay corresponding with levels nine to 13 of the common incremental salary scale, the employee must cease to be a casual teacher.

. . .

[81] The distinction between permanent and non-permanent teachers in the Education Teaching Service is a feature of the structure of the workforce employed in that Service. That structure was not adopted by decision or practice of the Department. It was imposed by the Teaching Services Act. The pay scales set by the Award and the practice, adopted by the Department, of not extending to its supply casual teaching staff over-award payments were an incident of the management of that structure.

[82] Not every such incident may be described as being a requirement or condition, compliance with which is required either in the terms on which employment in the Education Teaching Service is offered or in the terms or conditions of employment afforded by the Department. For the reasons given above, the so-called requirement of permanence which the respondents sought to impugn was not such a requirement or condition within the meaning of the AD Act. The Tribunal's decision was thus infected by an error of law and should not have been reinstated to any degree by orders of the Court of Appeal. For that reason, the appeal should be allowed.

17 Conclusion. The ratio or rationes decidendi, if they exist, are to be found in these passages. At [79] the majority sets out the proposition which it says is ‘fatal’ to the teachers’ case. That proposition is that it cannot be ‘a requirement or condition required to be complied with in the terms and conditions of employment as a casual teacher that, in order to receive a higher rate of pay the employee must cease to be a casual teacher.’ In other words, because the discrimination was said to have taken place in relation to the terms and conditions of employment that the Department affords to employees, the complaint failed at the threshold because the requirement did not relate to those terms or conditions. Rather, it required the teachers to seek alternative employment which had different terms and conditions. It was not necessary, in reaching that conclusion, for the majority in Amery to decide whether the Department had ‘imposed’ the requirement or whether the requirement had been adopted by a decision or practice of the Department. Any requirement which did not relate to the terms and conditions of the teachers’ current employment could not be a breach of s 24(2)(a). It follows that the answer to the question as to whether the Tribunal was bound by the decision in Amery is that it was bound by the ratio of that decision contained in [79]. We refer to that principle as the “terms and conditions ratio”. As there is no other ratio in the decision, it was not bound by any other principle expressed by the majority.

18 However, if we are wrong, and the passages at [81] and [82] of the decision are not obiter dicta, but rather contain an additional ratio, the Tribunal was also bound by that ratio which may be expressed as follows:

When the structure of a workforce has not been adopted or decided by the employer, at least some incidents of the management of that structure (including the pay scales set by the Award) will not be requirements or conditions compliance with which is ‘required’ in the terms or conditions of employment.

19 We refer to this principle as the “requirement and condition principle”. After examining the Tribunal’s reasoning we will address the second question of law which is whether, if bound by one or more rationes in Amery, the Tribunal correctly understood and applied those rationes to the facts of this case.

20 Tribunal’s reasoning. The Tribunal’s analysis appears at [68] and [72] to [76] of the decision:

Whether the Respondent “imposed” a requirement or condition in the provision of its services to the Applicant

68 Next, in order to satisfy the definition of indirect discrimination on the ground of disability in s 49B(1)(b) of the AD Act , it is necessary for Ms Hulena first to establish that the respondent (“the perpetrator”) requires her to comply with a requirement or condition. Ms Hulena contends that in its provision of services, the respondent imposed a term that in order to access her apartment, a pedestrian including the applicant must use pedestrian access routes 1, 2 and 3. The respondent says that it “imposes” nothing on the applicant, including for the purposes of s 49M(1)(b) of the AD Act, and that any use of the access routes as described by her does not constitute “terms” for the purpose of s 49M(1)(b).

. . .

72 Whilst we are mindful of the need to construe the expression “requirement or condition” in s 49B(1)(b) broadly, we are not satisfied that Ms Hulena has made out this part of her claim. Whilst it is clear that in order to access her apartment, Ms Hulena must as a matter of practical reality use one of the three pedestrian access routes, we are not persuaded that the respondent has required her to comply with any such term. In our view, the reality which confronts Ms Hulena in seeking to enter and leave her apartment arises from the design of a building some forty years ago, prior to the adoption of Australian Standards stipulating design requirements for new building work to enable access for people with disabilities. In reaching this conclusion, we consider ourselves bound to follow the decision of the majority of the High Court in State of New South Wales v Amery (2006) 80 ALJR 753. There, the majority consisting of Gummow, Hayne and Crennan JJ (Callinan J agreeing at [205]-[207]) held at [65]:

…it is not the mere existence of a requirement or condition to which Pt 3 Div 1 of the AD Act is directed. It is discrimination which may involve the imposition of a requirement or condition. The question that must be asked in applying ss 24(1)(b) and 25 is whether the perpetrator engaged in a proscribed form of discrimination, not "what was the requirement or condition in this case.

73 The majority went on at [80] to conclude that it could not be said to be a requirement or condition that in order to access higher levels of pay the employee must accept appointment to a permanent position with the Education Department. Their Honours observed at [81]:

The distinction between permanent and non-permanent teachers in the Education Teaching Service is a feature of the structure of the workforce employed in that Service. That structure was not adopted by decision or practice of the Department. It was imposed by the Teaching Services Act. The pay scales set by the Award and the practice, adopted by the Department, of not extending to its supply casual teaching staff over-award payments were an incident of the management of that structure.


74 By analogy, in the present case, the pedestrian access requirement was not imposed by a decision or practice of the body corporate which owns the common property of the apartment complex. Rather, it is a feature or incident of the design of a building which was erected prior to the adoption of minimum design requirements to enable access for people with disabilities, and which are contained in Australian Standards which do not apply retrospectively.

75 In relation to this element of her claim, Ms Hulena contends that the respondent is unable to point to any legislative framework which requires it to have in place the current arrangements. In our view, this is not the correct question. Rather, the question is whether the owners corporation, by failing to take actions which it may by special resolution be authorised to take (s 65A of the Strata Schemes Management Act), has contravened the prohibition on indirect discrimination on the ground of disability in the AD Act. We have concluded that the respondent has not required Ms Hulena to comply with any relevant requirement or condition, and hence that her claim of indirect discrimination must fail.

76 However, in case we are wrong in this conclusion, we address the remainder of Ms Hulena’s claim.

21 Conclusion. The Tribunal’s reasoning and conclusion was not based on the reasoning contained in the terms and conditions ratio at [79] of the majority’s decision. That proposition has no relevance to the facts in this case. Rather, the Tribunal’s reasoning and conclusion was based on the requirement or condition principle set out at [81] and [82] of Amery. We have concluded that the principle expressed in those passages does not contain a ratio. However, if we are wrong in that conclusion, we will consider whether the Tribunal correctly understood and applied that principle.

22 Tribunal’s interpretation of the requirements and conditions principle. With respect, we agree with Ms Hulena’s submission that the Tribunal misunderstood the reasoning of the majority in Amery. The majority did not say that the alleged perpetrator must ‘impose’ the requirement or condition by an overt or express act or practice. Rather, the inference that can be drawn from the majority’s decision was that the requirement or condition must be causally linked to the alleged perpetrator by some decision or practice made or adopted by it.

23 Tribunal’s application of the requirements and conditions principle. We also agree with Ms Hulena that the facts in Amery are distinguishable from the facts in this case because, in the present case:

a) the pedestrian access requirement is not a requirement that flows from compliance with any statute or regulation or from any other externally imposed source;

b) the Tribunal found that the body corporate provided the service of providing accessible entrances and exits from individual apartments within the complex. If the body corporate has provide that service then who, but for the body corporate, has required Ms Hulena to access her apartment via those entrances and exits;

c) construction of a building that met design specifications at the time of construction does not remove from the body corporate the ongoing responsibility of maintaining and repairing the common areas in accordance with current anti-discrimination legislation. If the body corporate provides the service of providing accessible entrances and exits from individual apartments within the complex, it must do so in accordance with legislation in force from time to time which includes compliance with the AD Act .

24 In summary, the facts in this case do not give rise to any question as to who imposed the requirement upon Ms Hulena. Contrary to the finding of the Tribunal, the pedestrian access requirement is a requirement imposed by a decision or practice of the body corporate which owns the common property of the apartment complex. The body corporate has been found to provide the service providing accessible entrances and exits from individual apartments within the complex and to have the ability to change those arrangements.

25 Further, the interpretation given to Amery by the Tribunal means that any long-standing discriminatory policy or requirement would not come within the ambit of the AD Act if it was in existence prior to the commencement of that Act. That would result in an absurd application of s 49B(1)(b) not contemplated by the legislature. There is nothing in the AD Act that excludes an ongoing arrangement or policy simply because that arrangement or policy was lawful at the time it was created or adopted by the alleged perpetrator. The AD Act is beneficial and remedial legislation and is to be given a liberal interpretation rather than a literal or technical interpretation: IW v City of Perth (1997) 191 CLR 1 at 12. An approach which would have the practical result of excluding from the operation of the AD Act an arrangement or policy simply because it was in existence prior to the commencement of that Act would not be consistent with its objects.

26 Conclusion. If, contrary to our finding, the requirement and conditions principle articulated by the majority in Amery at [81] and [82] is a ratio of that decision and the Tribunal was bound to apply it, the Tribunal misunderstood it and/or misapplied it to the facts of this case. The requirement and conditions principle is not applicable to the facts of this case and the Tribunal erred by considering that it was bound to apply it.

Body Corporate’s ‘Errors in the Reasons’

27 Identification of errors. The body corporate submitted that the Tribunal had erred in relation to its finding that one of the elements necessary to make out indirect discrimination as defined in s 49B(1)(b) had been satisfied. That element was that a substantially higher proportion of persons who do not have Ms Hulena’s disability comply with the pedestrian access requirement. The body corporate sought to have the Tribunal's reasoning in [92] reconsidered:

[92] Whilst, as the print out from the website of MS Australia confirms, the progress, severity and specific symptoms of the disease cannot be predicted, we consider that the impact of multiple sclerosis on sufferers mobility and strength is so well publicised in the media and so widely known that it can be regarded as a matter of common knowledge.

28 The errors were said to be:

a) that this finding was reached in the absence of evidence or was not open on the evidence;

b) even if the Tribunal was entitled to express the fact at [92] as a matter of common knowledge, that fact (that MS has ‘an impact on the mobility, stamina and strength of sufferers’) was manifestly insufficient to justify the ultimate finding that a substantially higher proportion of persons without MS can comply with the pedestrian access requirement.

29 Ms Hulena submitted that this alleged error in the Tribunal’s reasoning does not identify a question of law. Alternatively, if a question of law has been identified, no error is disclosed in the Tribunal’s reasoning at [92].

30 Tribunal’s reasoning. The Tribunal’s reasoning is set out at [84] to [93]. In order to determine whether the body corporate has identified a question of law and, if so, whether the Tribunal has answered that question erroneously, the Tribunal’s finding needs to be read in the context of the entirety of its reasoning on this issue. The documentary evidence on which the Tribunal relied was identified at [87]:

87 Ms Hulena tendered a print-out from the website of MS Australia, headed "Frequently Asked Questions (FAQs) about MS)". The FAQs print out provided inter alia that:


"Multiple sclerosis (MS) is a chronic, often disabling disease that randomly attacks the central nervous system (brain and spinal cord). The progress, severity and specific symptoms of the disease cannot be predicted; symptoms may range from tingling and numbness to paralysis and blindness. MS is a devastating disease because people live with its unpredictable physical and emotional effects for the rest of their lives.

Symptoms of MS are unpredictable and vary greatly from person to person and from time to time in the same person. They may include: extreme tiredness (fatigue), impaired vision, loss of balance and muscle coordination, slurred speech, tremors, stiffness, bladder and bowel problems, difficulty walking, short-term memory loss, mood swings and, in severe cases, partial or complete paralysis."

31 At [88] the Tribunal recorded that the body corporate ‘. . .acknowledged that the Tribunal does not require proof of matters which may be regarded for evidentiary purposes as matters of common knowledge, and may take judicial notice of whether a substantially higher proportion of persons without the relevant attribute can comply with a particular requirement.’ The Tribunal also noted that it was the body corporate’s view that there are limits to what can be considered to be common knowledge for this purpose. The Tribunal concluded at [92] to [93] that:

92 . . .[I]n the instant case we do not consider it necessary to have specific evidence about the impact of multiple sclerosis on the mobility, stamina and strength of sufferers. Unlike back injuries, the disabling impact of which can vary significantly, and disabilities involving detailed medical criteria, we consider that a finding can be made that multiple sclerosis is a chronic often disabling disease that randomly attacks the central nervous system, and has an impact on the mobility, stamina and strength of sufferers. Whilst, as the print out from the website of MS Australia confirms, the progress, severity and specific symptoms of the disease cannot be predicted, we consider that the impact of multiple sclerosis on sufferers mobility and strength is so well publicised in the media and so widely known that it can be regarded as a matter of common knowledge.

93 Accordingly, and again on the assumption that we are wrong in our conclusion that the respondent has not required Ms Hulena to comply with any relevant requirement or condition, we find on the balance of probabilities that notwithstanding the absence of specific evidence, a substantially higher proportion of persons who do not have Ms Hulena’s can comply or able to comply with the pedestrian access requirement.

32 Has the body corporate identified a question of law? The error in the reasons must relate to a question of law. Ms Hulena submitted that the Tribunal’s finding that the impact of MS is so widely known as to be a matter of common knowledge is a finding of fact and that consequently the body corporate has not identified a question of law. Whether the Tribunal has made a finding of fact in the absence of evidence is a question of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358. We are satisfied in those circumstances that the body corporate has identified a question of law. The second error in the reasons was said to be that the finding that the impact of MS is so widely known as to be a matter of common knowledge is insufficient to support the ultimate finding that a substantially higher proportion of people without MS than with MS can comply with the pedestrian access requirement. Because this error relates to the application of the law to the facts as found it is arguably a question of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Glass JA at 157. For the purposes of these proceedings we have considered it to be so.

33 Finding at [92] made in the absence of evidence or not open on the evidence. The Tribunal is not bound by the rules of evidence: ADT Act, s 73(2). Nevertheless, it would be an error of law for the Tribunal to make a finding of fact without any evidence to support that finding. The Tribunal’s finding that the impact of MS is so widely known as to be a matter of common knowledge was not made in the absence of evidence. The common law doctrine of judicial notice is to the effect that if a fact is so generally known among ordinary or educated people so as to be notorious, a court may be satisfied of that fact: Cross on Evidence, 7th edition, [3015]. In addition, s 144 of the Evidence Act 1995 permits a decision maker to take account of certain kinds of common knowledge. Because the Tribunal’s finding was based on common knowledge it was not made in the absence of evidence.

34 Finding at [92] insufficient to support ultimate finding. According to the body corporate, evidence is required to compare the ability of people without MS to comply with the pedestrian access requirement and the ability of people with MS to comply with that requirement. The finding of the Tribunal about the adverse impact on sufferers’ mobility and strength was said to be an inadequate basis on which to determine that issue. In particular, the body corporate submitted that there was no evidence or finding of the extent of that impact which would have allowed the Tribunal to be satisfied that this element of indirect discrimination had been established. In order to determine whether a substantially higher proportion of person without MS, compared with people with MS, comply with the pedestrian access requirement, the Tribunal needed to be satisfied that the impact of MS on sufferers’ mobility and strength was sufficient to meet that test. The Tribunal was satisfied of that fact on the basis of common knowledge. Statistical evidence which would have identified the precise extent of the impact is not required. If this alleged error in the Tribunal’s reasons identifies a question of law, we are of the view that no error is disclosed in the Tribunal’s reasoning.

Orders

35 Having determined the appeal, we must make such orders as we think appropriate in light of our decision: ADT Act, s 114. Those orders may include an order affirming or setting aside the decision of the Tribunal and an order remitting the whole or any part of the case to be heard and decided again. We may also make an order in substitution for an order made by the Tribunal. Ms Hulena has been wholly successful on appeal and seeks the following orders:

a) an order setting aside the order of the Tribunal dismissing the complaint;

b) an order substituting the finding of the Tribunal that the body corporate did not impose on Ms Hulena the pedestrian access requirement, with a finding that the body corporate did require Ms Hulena to comply with that requirement;

c) an order that the complaint of disability discrimination is substantiated;

d) an order that the body corporate is enjoined from continuing or repeating the unlawful conduct, with such order coming into effect 12 weeks from the date of the decision;

e) an order remitting the matter to the Tribunal as originally or similarly constituted to determine the quantum of damages to be awarded to Ms Hulena.

36 The body corporate submitted that a finding could not made in the terms set out in (b) above without assessing the evidence. We do not agree with that proposition. The Tribunal assessed the evidence. Having identified the pedestrian access requirement, the only reason that the Tribunal decided that that requirement was not a requirement within the meaning of that term in s 49B(1)(b) was that it was bound to follow the High Court’s decision in Amery. We have concluded that the Tribunal made an error of law in reaching that conclusion and that it should have concluded that it was not bound by the High Court’s decision to come to that view. The effect of not being bound by that decision is that the Tribunal would have regarded the pedestrian access requirement as a requirement within the meaning of that term in s 49B(1)(b). That follows from the fact that the Tribunal went on to determine the complaint in the event that it was wrong in its conclusion that it was bound by Amery. It found that each element of s 49B(1)(b) had been satisfied and that the body corporate had not made out the unjustifiable hardship exception in relation to access route 3. Based on the findings of fact made by the Tribunal and the error of law we have identified, there is no other conclusion open than that the complaint is substantiated. The issue of remedies, including whether the body corporate should be enjoined from continuing or repeating the unlawful conduct, should be remitted to the Tribunal at first instance as originally or similarly constituted.

37 Consequently, we make the following orders:

1. The Tribunal’s order that, ‘The complaint is dismissed’ is set aside.

2. In substitution for that order, the following order is made: ‘The complaint is substantiated.’

3. The issue of whether any order should be made as provided in s 108(2) of the Anti-Discrimination Act 1977 is remitted to the Tribunal as originally or similarly constituted.

4. Matter 071056 listed for case conference at 12.30 pm on Wednesday 5 May 2010.