Ondrich v Kookaburra Park Eco Village

[2009] FMCA 260

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ONDRICH v KOOKABURRA PARK ECO-VILLAGE [2009] FMCA 260

HUMAN RIGHTS – Disability discrimination – contention that the Body Corporate has contravened the provisions of the Disability Discrimination Act which prohibit indirect discrimination in the provision of goods and services and facilities by not permitting her access to common property with her dog – contends that the Body Corporate contravened the provision of the Act by refusing to permit her to live at Kookaburra Park with her dog – whether the applicant has a disability as defined in section 4 of the Act – whether the applicant has been directly discriminated against pursuant to section 9 of the Act – whether the respondent has unlawfully discriminated against the applicant pursuant to section 24(1) in the case that section 6 and 9 of the Act apply – whether respondent can prove unjustifiable hardship under section 24(2) of the Act – whether respondent has contravened section 5 of the Act – whether the respondent has contravened section 25 of the Act – whether the applicant is entitled to compensation if the respondent did contravene the Act.

Body Corporate and Community Management Act 1997 (Qld)
Disability Discrimination Act1992 (Cth)
Federal Magistrates Court Act 1999 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Catholic Education Office v Clarke (2004) 138 FCR 121
Clarke v Catholic Education Office [2003] FCA 1085
Cooper v Human Rights and Equal Opportunity Commission (1999) 93 FCR 481
Forest v Queensland Health (2007) 161 FCR 160
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
F (Mental Patient: Sterilisation), In re; sub nom F v West Berkshire Health Authority [1990] 2 AC 1
IW v City of Perth and Ors (1997) 191 CLR 1
Jackson v Bagwell [1992] 2 Qd R 390
Namol Pty Ltd and Anor v A W Baulderstone and Ors (No 2) (1993) 47 FCR 388
Rainsford v Victoria and Anor [2007] FCA 1059; (2007) 167 FCR 1
Slugget v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561
Vines v Djordjevich (1995) 91 CLR 512
Waters v Public Transport Corporation (1991) 173 CLR 349
Wattle v Kirklan (No 2) [2002] FMCA 135
State of Queensland  v Forest [2008] FCFCA 96; (2008) 168 FCR 532

Applicant: LIBUSE ONDRICH

Respondent: KOOKABURRA PARK ECO-VILLAGE

File number: BRG9 of 2006

Judgment of: Burnett FM

Hearing dates: 26, 27, 28, 29 November 2007, 7 March 2008 and 23 July 2008

Date of last submission: 23 July 2008

Delivered at: Brisbane

Delivered on: 1 April 2009

REPRESENTATION

Counsel for the Applicant: Mr Shah

Solicitors for the Applicant: Minter Ellison

Counsel for the Respondent: Mr Fenton

Solicitors for the Respondent: Hall Payne Lawyers

ORDERS

1. Application dismissed.

2. The respondent file and serve any submissions and supporting material relating to the issue of costs on or by 4:00pm on 15 April 2009.

3. The applicant file and serve any response and supporting material relating to the issue of costs on or by 4:00pm on 29 April 2009.

4. Costs reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BUNDABERG

BRG9 of 2006

LIBUSE ONDRICH

Applicant

And

KOOKABURRA PARK ECO-VILLAGE

Respondent

REASONS FOR JUDGMENT

(As corrected)

Introduction

1. In this proceeding the applicant seeks relief under the Disability Discrimination Act 1992 (Cth) (“the DD Act”). She alleges that the respondent Kookaburra Park Eco-Village CTS (“the Body Corporate”) provides services and facilities to her in particular by the provision of common property. She contends that the Body Corporate has contravened the provisions of the DD Act which prohibits indirect discrimination in the provision of goods and services and facilities by not permitting her access to common property with her dog, Punta. She also contends that the Body Corporate contravened the provisions of the Act by refusing to permit her to live at Kookaburra Park with her dog. She seeks an apology and compensation.

History of proceedings

1. This application follows efforts by the applicant to challenge the respondent’s alleged discriminatory conduct by processes provided by the Body Corporate and Community Management Act1997 (Qld) (“the BCCM Act”) and the Human Rights and Equal Opportunity Commission Act1986 (Cth) (“the HREOC Act”).

2. By-law 12 of the CTS Scheme (by-law 12) imposed a prohibition on residents keeping cats and dogs on their lots or common property. A complaint was made by another resident that the applicant was keeping a dog in her house in breach of by-law 12. The neighbour requested the Body Corporate take enforcement action under the BCCM Act to require the applicant to remove the dog.

3. The applicant refused to comply with the request of the Body Corporate and it sought enforcement orders by the processes provided under the BCCM Act. An application was heard by an adjudicator appointed under that Act. On 3 November 2001 an order was made by the adjudicator directing that the applicant “remove the dog being kept upon their lot and thereafter keep the dog permanently removed from the lot and from the scheme generally”.[1]

   [1] Exhibit 10.

4. The applicant appealed to the local Magistrates Court against that decision. Those proceedings are presently in abeyance because that court was informed that the applicant was seeking remedies under the DD Act.

5. In the meantime the Body Corporate resolved to permit the applicant to keep her dog in her house. It subsequently recanted and has since directed the applicant to remove her dog from the scheme land, including her allotment. 

6. So far as her claim is concerned when the matter came on for trial before this court the applicant placed significant reliance upon the first instance decision of the Federal Court in Forest v Queensland Health[2].  At the time the trial commenced it was acknowledged by all parties that that decision was subject to appeal.  Despite that circumstance it was agreed that the trial would proceed with the prospect of the application being reopened for the receipt of further evidence if following a judgment on appeal that course was considered necessary. 

   [2] (2007) 161 FCR 152.

7. In the event the decision was reversed on appeal[3].  However no request was made to reopen although further submissions were made to address matters arising from the Full Court’s decision.  Given no application was made by the applicant to reopen it is unnecessary to deal with written submissions submitted by the respondent on this point.  Further submissions by the parties did address the Full Court’s judgment.  They have been considered below.

   [3] State of Queensland (Qld Health) v Forest [2008] FCFCA 96; (2008) 168 FCR 532

Background facts

1. The applicant, her husband and children are residents at the Park. They have lived there since about August 1997. The respondent is the Body Corporate for the Park. The Park is a community title scheme established pursuant to the provisions of the BCCM Act. It is alleged that the Body Corporate has control over the Park and the scheme.

   
   

   A function of the Body Corporate is said to be the provision of services and facilities to the applicant and other residents of the Park.  It is also responsible for the maintenance of common property within the Park.

2. The applicant is a 49 year old woman.  She claims to suffer various medical conditions including depression and anxiety.  In her evidence she stated that her local GP Dr Morrison at some stage suggested she purchase a dog to assist in the alleviation of her conditions.  Accordingly on 7 December 2000 she purchased a small cross bred terrier for that purpose.  She named the dog Punta.  Although it is in contention, she says that she purchased Punta for the purpose of alleviating the effect of her disabilities and that she trained her dog to assist in that particular matter. 

3. However By-law 12 provides:

   “A resident may, with the consent of the Council of the Body Corporate only, keep certain domestic animals or fowl on a lot or the common property. Subject to S.30(12) of the Building Units and Group Titles Act 1980, the keeping of cats and dogs is prohibited, and a resident must ensure that the provisions of the by-law are strictly adhered to both by a resident and any invitee to a lot or the common property.”

4. By purchasing the dog and bringing it into her residence at the Park without the Body Corporate’s consent the applicant was in breach of by-law 12. 

5. Not everybody at the Park is sympathetic to the applicant’s condition. In particular the Worsman’s who lived over the road protested at the applicant’s keeping of the dog. They approached the Body Corporate who in turn took issue with the applicant. Ultimately the matter was taken to adjudication under the BCCM Act and a determination was issued by an adjudicator on 3 September 2001. The adjudicator ordered that within one month of that date Punta was to be removed from the applicant’s house at Kookaburra Park and kept from her house.

6. The applicant did not take the adjudicator’s determination well.  She left the house and for a short time took up residence at a women’s crisis centre in Bundaberg.  She said at that time that she was suicidal.  She then resolved to rent a house away from the Park so that she would not be separated from Punta.  Accordingly from about December 2001 until about November 2002 she lived in rental premises away from the Park.  Meanwhile her family remained in the residence at the Park. 

7. By November 2002 she returned to the Park because of her need to be with her family.  She brought Punta back to her residence with her but kept him within the boundaries of her property and within the house.  Given the size of the allotments at Kookaburra Park it is not inconceivable that Punta could have been kept surreptitiously without members of the Body Corporate or other residents becoming aware of its presence. 

8. However in about December 2004 another resident, Rosalie Raymond, came to the applicant’s house.  She knocked on the door and Punta barked.  Although the applicant quietened the dog, moved into another room and did not answer the door it was apparent to Ms Raymond that a dog was on the premises. 

9. Ms Raymond reported her observations to the Management Committee meeting of the Body Corporate on 2 February 2005.  Initially the body corporate took a benign view. On 22 January 2006 correspondence was directed to the applicant by the Body Corporate stating it had voted to allow the applicant to keep her dog on certain terms being that the dog Punta could not be taken off her allotment and, by inference, onto common property.  However that offer was subsequently withdrawn.  Since then the Body Corporate has sought to enforce the adjudicator’s decision.

10. The applicant says she has a disability and that she requires the dog to assist her in respect of that disability. She says the conduct of the Body Corporate requiring that she remove the dog from her residence constitutes discrimination under the DD Act. She now seeks relief under the Act.

Issues to be resolved

1. The applicant submitted the following issues require resolution:

   a)Whether the applicant has a disability as defined in Section 4 of the Act, and, if so, what that disability is?

   b)Has the respondent indirectly discriminated against the applicant pursuant to section 6 of the DD Act?;

   c)Has the respondent discriminated against the applicant pursuant to Section 9 of the Act (Trained Assistance Animal provision)?

   d)If either (or both) Section 6 and 9 of the Act apply then has the respondent unlawfully discriminated against the applicant pursuant to Section 24(1) of the Act (Good Services and Facilities provision)?

   e)If the respondent has contravened Section 24(1) of the Act, can the respondent escape a finding of unlawful discrimination by proving unjustifiable hardship under Section 24(2) of the Act?

   In addition to those issues the following also arose by reason of the pleadings made by the parties:

   f)Had the respondent engaged in direct discrimination contrary to s.5 DD Act?

   g)Did the respondent engage inn unlawful conduct in respect of the provision of accommodation contrary to s.25?

   h)If the respondent did contravene the DD Act is the applicant entitled to compensation, and if so, how much?

   Although the applicant abandoned (f) and (g) in the course of submissions.

Does the applicant have a disability

1. A disability is defined in section 4 in relation to a person to mean, inter alia,

   “(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment with a result in disturbed behaviour”.

2. In her points of claim the applicant alleged that she was a person suffering from the medical conditions of Asperger’s syndrome, severe depression and anxiety. She alleged these conditions constituted disabilities within the meaning of Section 4 of the DD Act.

3. The applicant’s case rests to a significant degree upon the matter of the requirement of a dog trained to assist her in the alleviation of the effects of her disability.  That issue can only be considered properly and effectively in this case in light of a precise factual decision as to the disability held by the applicant.[4]

   [4] This was the approach adopted by Collier J in Forest v Queensland Health (2007) 161 FCR 152 which approach was not subject to review on appeal.

4. It is necessary for the court to come to a factual conclusion as to the nature of the applicant’s disabilities because the concept of alleviation of a disability within the meaning of section 9 of the Act requires consideration of the manner of alleviation in determining whether there has been discrimination

5. The respondent denied that the applicant suffered from Aspergers syndrome and did not admit that she had at any time suffered from severe depression. It did admit that the applicant suffered from a generalised anxiety disorder and a panic disorder with agoraphobia which condition it admitted was a disability as that term is defined in section 4.

6. In a report prepared by Mr Martin Nembach, psychologist he addressed issues relating to the applicant’s claim of Aspergers syndrome.  Likewise Dr Jenkins, psychiatrist also accepted a diagnosis of that condition. In his evidence he noted that his clinical area of expertise was anxiety but that he made an assessment of Asperger’s syndrome based upon its historical reporting[5]. He merely accepted the report of Asperger’s syndrome.  To that extent his views were consistent with those of Dr Warlow. The only real diagnosis made by Dr Jenkins was of an anxiety disorder.

   [5] T183 Ln 18

7. For the respondent a report was prepared by a Dr Warlow who considered the applicant suffered a “generalised Anxiety Disorder”. He was “unclear as to how the (original) psychiatrist had diagnosed Asperger’s syndrome[6]”.  He stated he did not accept the diagnosis. In making that assessment he noted “it would be impossible to clearly state that she had an Asperger’s syndrome”[7] although he noted that many of the symptoms were present. Significantly he discounted the condition on the basis that “there was not the sense that she was living in her own world …as would be the case of a Autistic Spectrum Disorder”. 

   [6] Affidavit John Warlow  filed 5 October 2007 - Annexure JW2 p8

   [7] Affidavit John Warlow  filed 5 October 2007 - Annexure JW2 p13.

8. In his reports of 1 June 2005 and 23 August 2006[8] Mr Martin Nembach reported that the applicant has been diagnosed and has been treated for that condition.  No evidence was adduced by the respondent to challenge the evidence of Mr Nembach.  Nor was Mr Nembach challenged generally when he gave evidence before the Court. In his report Dr Warlow did not challenge the capacity of the psychologist to make such an assessment although he did criticise the psychologist’s failure to consider a Generalised Anxiety Disorder[9]. This matter was not explored with any of the witnesses in cross examination.

   [8] Both included in Exhibit 6.

   [9] Affidavit John Warlow  filed 5 October 2007 - Annexure JW2 p8

9. Although there is now some issue concerning the applicant’s diagnosis of an Asperger’s condition that diagnosis has only been challenged in the context of these proceedings by one witness engaged to undertake assessment for the purpose of the proceedings. In the meantime her treating health practitioners have proceeded to treat her for that amongst other conditions. Until these proceedings none of the health practitioners concerned, being two psychologists and a psychiatrist, appeared to have any difficulty with that diagnosis. Dr Warlow disagrees but expresses his disagreement passively noting in his view the diagnosis of Asperger’s condition as a diagnosis being ‘probably’ excluded.  Given the weight of evidence particularly by her treating health practitioners I am satisfied that the applicant is in fact affected by Asperger’s syndrome and that the effects of that condition are particularly those identified in Mr Nembach’s report of 23 August 2006.  In particular the evidence suggests that condition affects the applicant’s thoughts process, perceptions of reality, emotions and judgment and also results in disturbed behaviour by her.  It results in an impairment of the capacity to relate well on a social level including difficulty with regulating her emotional state.  Consequently she would often seem quite awkward and unusual and eccentric.  Those remarks are consistent with my observations of the applicant at trial.

10. In respect of  her depressive condition a psychologist, Mr Craig Cook prepared a report on 22 March 2005 which stated among other things:

    “It appears from her reported history, current level of functioning and reported symptomology and that she meets the diagnostic and statistical manual of mental disorders fourth edition criteria of Axis 1, Major Depressive Disorder (296.33) and Axis 2, Aspergers Disorder (299.80).

    That the applicant also suffers from a depressive condition.  Again in the absence of evidence to challenge that opinion I accept the applicant does suffer from that condition.”

11. Although there is no admission concerning the depressive condition there was direct evidence of her suffering “low grade depression”.[10]

    [10] Affidavit John Warlow  filed 5 October 2007 - Annexure JW2 p13.

12. Dr Warlow also observed the applicant probably suffers a Generalised Anxiety disorder associated with anxiety and worry, fatigue, difficulty concentrating, irritability and sleep difficulties[11]. Additionally he diagnosed a probable Panic Disorder with agoraphobia manifest by panic attacks and severe anxiety about going to places such as shopping centres.[12]

    [11] Affidavit John Warlow  filed 5 October 2007 - Annexure JW2 p12

    [12] Affidavit John Warlow  filed 5 October 2007 - Annexure JW2 p13

13. In summary the evidence demonstrates the applicant does have a disability as defined in section 4 of the Act. That disability includes a generalised anxiety disorder and a panic disorder with agoraphobia, Axis 1, Major Depressive Disorder (296.33) and Axis 2, Aspergers Disorder (299.80). She also suffers low grade depression.

Did the respondent indirectly discriminate against the applicant – section 6 Disability Discrimination Act

1. Section 6 of the Disability Discrimination Act provides as follows

   “6     Indirect disability discrimination

   For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

   (a)    with which a substantially higher proportion of persons without the disability comply or are able to comply; and

   (b)    which is not reasonable having regard to the circumstances of the case; and

   (c)     with which the aggrieved person does not or is not able to comply.”

Requirement or condition

1. The approach to be adopted in determining the matter of “requirement or condition” for the purpose of s.6 was examined in Forest v Queensland Health (supra). In particular at page 164 and 165 at paragraph [53] Her Honour Collier J helpfully collected the relevant principles and supporting authority.[13]  At [53] Her Honour stated:

   [13] Although Collier J’s decision was overturned on appeal, see State of Queensland v Forest [2008] FCFCA 96; (2008) 168 FCR 532 (6 June 2008) Her Honour’s observations on this matter were not under review on appeal.

   “The concept of “requirement or condition” within the meaning of s6 or its State equivalents has been considered in a number of cases.  Relevant principles include:

   .    it is only if the alleged discriminator can be said to have required, in the sense of “obliged” or “compelled” the aggrieved person to do something, that it could be said to have imposed a requirement or condition with which it required compliance: Drummond J in Sluggett v Human Rights and Equal Opportunity Commission (2002) 123 FCR 561 at 566, cf Heerey J in Fetherston v Peninsula Health [2004] FCA 485 at [81];

   .    whether the alleged discriminator has imposed a requirement or condition on persons wishing to, inter alia, use services or access premises, is a question of fact (Dawson and Toohey JJ in Waters 173 CLR at 394; Sackville and Stone JJ in Catholic Education Office v Clarke (2004) 138 FCR 121 at 143) and will take its colour from the particular setting in which it is said a prohibition against discrimination created by the DD Act has been infringed by indirect indiscrimination: Sluggett 123 FCR at 577;

   ·     a requirement or condition may be implicit in the conduct which is said to constitute discrimination: Mason CJ and Gaudron J in Waters 173 CLR at 360; Clarke 138 FCR at 143; (2007) 161 FCR 152 at 165;

   ·    the requirement or condition in each case will depend on the facts of that particular case, however it should be construed to include any form of qualification or prerequisite, and formulated with some precision: Clarke 138 FCR at 143;

   ·    the notion of “requirement or condition” would seem to involve something over and above that which is necessarily inherent in the goods or services provided: Mason CJ and Gaudron J in Waters 173 CLR at 361; Clarke 138 FCR at 142. So, as Mason CJ and Gaudron J pointed out in Waters 173 CLR at 361:

   …it would not make sense to say that a manicure involves a requirement or condition that those availing themselves of that service have one or both of their hands.

   ·    the expression “requirement or condition” should be given a generous interpretation and the alleged discriminator should not be permitted to evade the statutory prohibition on indirect discrimination by defining its services so as to incorporate the alleged requirement or condition: Dawson and Toohey JJ in Waters 173 CLR at 394; Clarke 138 FCR at 143.”

2. It was submitted for the applicant that in this case the term or condition for section 6 can be expressed as a requirement that the applicant must reside at Lot 73 and attend on the common property without her dog Punta. In my view it can be just as conveniently put in the inverse, that is to say, the offending requirement or condition with which the applicant is required to comply is that to reside at Lot 73 she must ensure that the provisions of by-law 12 are strictly adhered to by her. In that sense the condition has the direct consequence of prohibiting her from keeping the dog Punta on her premises or the common property.

3. The respondent seeks to enforce the term or condition.  That is to say for the applicant to reside on Lot 73 she must comply with by-law 12.  As earlier noted, in 2001 proceedings were commenced by the Body Corporate against the applicant and her husband to enforce by-law 12.  The order sought from the adjudicator was that they “cease breaching by-law 12 and permanently remove their dog from Kookaburra Park”.  After hearing the application an order was made by the appointed adjudicator, Mr P.J. Henly in terms of the relief claimed by the Body Corporate.

4. For the respondent it was contended that the respondent has not obliged or required the applicant to do or refrain from doing anything.  They contend the only requirement or obligation on the applicant was the order of the adjudicator.  They contend that the respondent “has obliged” or “compelled” the applicant to do nothing at all and that the applicant’s case wrongly asserts the order of the adjudicator as being an act of the respondent.  Moreover it was submitted that this was a “fundamental flaw” in the applicant’s case.

5. The respondent relied upon the fact that the adjudicator’s order has never been enforced and that despite the order the applicant continues to defy its terms.

6. I disagree. The order is presently subject to appeal. The appeal proceedings have been stayed pending the exhaustion of the applicant’s rights under the DD Act. The fact that the Body Corporate has not withdrawn from the proceedings or consented to a reversal of the adjudicator’s award is conduct constituting a requirement by the applicant to comply with the requirement or condition. As the Full Court noted in Catholic Education Office v Clark[14] the question is one of fact which will take its colour from the particular setting.

   [14] (2004) 138 FCR 121 at 143.

7. In this case the fact that the Body Corporate lent its name to proceedings before the Tribunal and having won at that level resists the appeal from that determination clearly evidences an intention on its part to enforce by-law 12 even if that conduct is assessed as being implicit.

8. Additionally the respondent has had it within its power to relax by-law 12.  At this stage no attempt has been made to do that.  Undoubtedly if processes were put in place to effect a relaxation of by-law 12 then materials relevant to that matter would provide conclusive evidence of the Body Corporate’s general views on this issue.  I suspect they would not be helpful to its response to this application.

9. In this context it was also submitted by the respondent that until the administrator (appointed pursuant to the machinery provided by the BCCM Act) actually physically attempts to enforce the adjudicator’s order the dispute is theoretical and it follows there are no facts to support the conclusion that the applicant has been the subject of an obligation or compulsion.

10. I do not accept that conduct needs to descend to efforts in enforcement to give rise to the fact of “compulsion” or “requirement” to comply.  All rights flow from the Body Corporate’s attitude to by-law 12 in the current circumstances.  There is nothing theoretical about the Body Corporate’s attitude in that regard.  It wants by-law 12 to be enforced.  As I have earlier noted the by-laws are not writ in stone.  They can be varied if it suits the will of the Body Corporate.  The will of the Body Corporate is directed by its members. Presently that will is to enforce by-law 12 against the applicant.  In that context it is not in any respect theoretical but is a fact manifest by its attitude to the litigation in the Magistrates Court and its failure to vary by-law 12.  In that sense, this is not a case of there being “no real question” as explained by Lord Goff of Chievley in (Mental Patient; Sterilisation), In re; sub nom F v West Berkshire Health Authority [1990] 2 AC 1 at 82 which was cited with approval by the majority of Bass v Permanent Trustee Co Limited (1999) 198 CLR 334 at 356.

11. I do not accept the case as theoretical.  In my view it follows that there is an obligation imposed, being a requirement, that the applicant comply with a requirement or condition of the respondent as the alleged discriminator:  Sluggett v Human Rights and Equal Opportunity Commission[15].

Can a substantially higher proportion of a person without the applicant’s disability comply with the requirement or condition

[15] (2008) 123 FCR 561 at 566.

1. The appropriate test for resolution of this issue was noted by Her Honour Collier J in Forest v Queensland Health (supra) at [65] adopting the submissions made by the respondent’s counsel. The test submitted and accepted was:

   “* to determine whether there has been indirect discrimination, it is necessary to identify and “appropriate base group” with which to compare the group comprising the individual claiming discrimination, and to decide whether a substantially higher proportion of those individuals from the base group are able to comply with the relevant requirement or condition;

   *     using this test, the base group is people without the applicant’s personal disorder, and the comparative group would be those with that personality disorder.”

2. Her Honour clarified her remarks by reference to the majority in Catholic Education Office v Clarke[16] where it was stated at [111],

   “Section 6(a) is satisfied if the requirement or condition is one with which a ‘substantially higher proportion of persons without the disability comply or are able to comply’. This language implicitly requires a comparison to be made. Clearly enough, one comparator is a group of persons without the disability. The other comparator is not, however, specifically identified. But as Dawson J observed in Australian Iron & Steel v Banovic, at 187, a ‘proportion must be a proportion of something’. This suggests that the second comparator is a group of persons with the disability. The comparison is not with the aggrieved person, since that person’s ability to comply with the requirement or condition is addressed in s 6(c). In any event, it does not accord with the ordinary use of language to refer to the ‘proportion’ able to comply with a requirement in relation to only one person.”

   [16] (2004) 138 FCR 121 at 144.

3. It is significant to note that the comparison is not with the aggrieved person since that person’s ability to comply with the requirement or condition is addressed in section 6(c) but rather the second comparative group is a group of persons with the disability[17].

   [17] Catholic Education v Clarke (supra) at [111]

4. On appeal the Full Court did not criticise Her Honour’s expression of this principle.[18]  At [121] the majority of the Full Court expressed the appropriate approach as:

   “…in order to satisfy the first prerequisite of section 6 it would have been necessary to make findings as to the following:

   ·    the proportion of people in the base group, being people who do not have [the] disability, were able to comply with the condition or requirement…

   ·    the proportion of people in the comparative group, being people who do have [the] disability, who are able to comply with the condition or requirement…

   ·    if the first proportion was substantially higher than the second proportion, the first prerequisite of section 6 would be satisfied.”

   [18] The criticism of the trial judge was in her application of section 6 – para [5]. She erred in failing to define the comparative group so as to enable the comparison required by that section to be made – para [9] and [121].

5. Chief Justice Black who concurred with the majority in respect of its observations concerning section 6 noted,

   “Section 6(a) … directs attention at the outset to two groups of people: persons with the disability that affects the aggrieved person and person without that disability. Those with the disability are usually, in this field of discourse, referred to as comprising the comparator group, and those in the broader group are referred to as the base group”

6. The applicant submitted that the appropriate comparative base group would be other persons living within the Park.  No other group was proposed. Nor would any broader group be appropriate in the circumstances because the by-laws operation is limited in the ambit to lot holders and their invitees. As the majority in State of Queensland v Forest (supra) noted at [119], in applying Australian Iron & Steel Pty limited v Banovic (1989) 168 CLR 165 at 177-178, the base group that is appropriate for that exercise will vary according to the context in which the condition or requirement is imposed. The base group here clearly constitutes members of the community who live in the Park.

7. In this case, as with  Forest v Queensland Health (supra), an inference is open that the proportion of people in the base group who do not have the applicant’s disability and who are able to comply with the respondent’s requirement or condition would be close to 100 per cent.

8. A difficulty arises however concerning the nature of the comparator group.  This case like Forest v Queensland Health (supra) presents with an applicant with an unusual condition.  In Forest v Queensland Health (supra) Her Honour at first instance determined “that commonsense dictates that the majority of people in the community…would have no difficulty accessing the premises without an animal and do not require an assistance dog to be able to access the respondent’s premises. Accordingly for the purposes of section 6, I am prepared to hold that a substantially higher proportion of persons without the applicant’s disability are able to comply with the requirement or condition imposed by the respondent in this case[19]”. In so proceeding Her Honour rejected a submission that in respect of the comparator group she did not require evidence of the proportion of people with the applicant’s disability who would have difficulty complying with the requirement or condition of the respondent.

   [19] Forest v Queensland Health (2007) 161 FCR 152 para [69] at 170

9. However the applicant’s submission concerning the comparative group was subject to challenge by the Body Corporate.  For the applicant it was conceded there was no evidence on the subject.  Indeed the point was made:  what would the applicant have been required to do?  Knock on the door of every resident of the eco village?  With that approach in mind the applicant relied upon the approach of Collier J at first instance in Forest v Queensland Health (supra) as noted above.  That approach was subsequently rejected by the Full Court.

10. The significance of this evidence in performing a valid assessment of the proportionate impact upon each group is well illustrated in this case.

11. In particular Dr Warlow made the observation in his report that the applicant’s son also suffers Aspergers syndrome.[20]  Although it was noted in evidence he too enjoys the benefit of the dog there was no evidence to suggest he could not comply with by-law 12.  In this case the comparative group had the potential to constitute at least one other person in the relevant population, which arguably are the occupants of the park and their invitees.  If his condition did indeed mean he properly fell within the comparative group it might well have been open to argue even more forcefully that the impact of by-law 12 was disproportionate to the comparative group when compared with the base group.

    [20] Affidavit Warlow page 6.

12. The question raised in this case by the respondent is as to whether the applicant has addressed the issue of the comparison group.  This requires a consideration of both the persons eligible to constitute this class and evidence in respect of that matter.

13. In Clarke v Catholic Education Office [21] at first instance Madgwick J proceeded on the premise that section 6(a) required a determination of the “appropriate base group” with which to compare the individual claim in discrimination and to decide whether a substantial proportion of those individuals in the base group are able to comply with the relevant requirement or condition.[22]  His Honour did not make any express reference to any comparative group nor to questions of evidence relevant to a comparative group.  The debate in that case and on appeal focussed upon identification of the “base group”. 

    [21] [2003] FCA 1085

    [22] At [46].

14. In Forest v Queensland Health (supra) at first instance it is implicit in the judgment of Collier J that arguments were raised concerning the need to identify a comparative group.[23]  Her Honour noted “there is no evidence before me as to the proportion of members of the comparative group (however defined) who would have difficulty complying with the requirement or condition of the respondent in this case.”  It was that point which was taken on appeal and subject to explanation by both Black CJ at [7] and Spender and Emmett JJ at [121]. 

    [23] See [68].

15. In Catholic Education v Clarke (supra) the Full court did not expressly consider the interface of s.6(a) and s.6(c) and in State of Queensland v Forest (supra) the Full Court expressly reserved its position on that point it stating it did  not have to decide it.

16. In my view there is a lacuna apparent between majorities’ remarks in Catholic Education v Clarke (supra) at [111] identifying that the comparison is not with the aggrieved person but recognising the need for a comparative group “…not…specifically identified…” and the Full Court’s statement in State of Queensland v Forest (supra) that there is a need to consider the proportion of people in the comparator group who are able to comply with the condition: that is, as the aggrieved person would naturally form part of such a group, how is she to be considered?

17. Although I recognise that the applicant herself is assessed individually under section 6(c) I do not read the words of the majority in Catholic Education v Clarke (supra) as excluding the applicant from consideration as part of the “second comparator” being “a group of persons with a disability”. This is particularly so as the majority in said of section 6(a):

    “[112] section 6(a) of the DVA Act does not mean that the comparison must be between all persons with a disability and all those without it; Australian Iron & Steel v Banovic at 178, per Deane & Gaudron JJ.  The determination of the appropriate groups must be based on the evidence in the particular case, whether the groups chosen must, as a matter of law, be capable of allowing comparison required by section 6(a) to be made; Australian Iron & Steel v Banovic at 178, per Deane & Gaudron JJ.”

18. In reaching that conclusion the majority in Catholic Education v Clarke (supra) had earlier noted that the High Court in Australian Iron & Steel v Banovic (supra) had observed that “a proportion must be a proportion of something”.  The majority understood that to mean “that the second comparator is a group of persons with the disability. The comparison is not with the aggrieved person, since that person’s ability to comply with the requirement or condition is addressed in s6(c). In any event it does not accord with the ordinary use of the language to refer to the “proportion” able to comply with a requirement in relation to only one person.”[24]

    [24]  Catholic Education v Clarke (supra) at [111].

19. Australian Iron & Steel v Banovic (supra) was a case concerning the operation of the Anti Discrimination Act 1977 (NSW) dealing within the context of a sex discrimination claim.  In that factual context the prospect of effective comparative groups is greater than in the context of disability discrimination.

20. The situation is clearly different in the context of disability discrimination. Inevitably populations comprising the comparator group are going to be much smaller than may usually be available in the field of sex discrimination. If for instance there were to be no other persons identified as persons with the relevant disability then in the absence of consideration of the disabled applicant there could be no comparator group for the purposes of comparison of the competing groups. It is apparent from the judgment in Clarke v Catholic Education Office (supra) at first instance that consideration of the applicant was given in the context of s.6(a). However it is not clear whether that consideration was in the context of a comparison with the aggrieved person per se or a broader context. It is not inconceivable that His Honour’s processes followed the process articulated by the Full court in State of Queensland v Forest (supra). His Honour’s conclusions could clearly have been reached by that means.

1. In that case it would appear that a consideration of the applicant within the context of s.6(a) would be acceptable if it was not in the context of a comparison alone but rather in the context of including the applicant within the relevant population of disabled persons for determining the proportion of people in the comparative group who are able to comply with the condition. Then it would remain open to consider the applicant alone in a meaningful way as required by s.6(c).

2. In this case the difficulty with the applicant’s case is that the evidence concerning the class of persons who may form the comparative group remains open because no evidence was adduced to establish whether there are any other similarly affected persons in the relevant population.  For instance the evidence suggested that there is at least one member of the relevant population (the applicant) and potentially there is another (the applicant’s son).  There is no evidence as to more.  Even accepting that matter there is no evidence before me as to the proportion of the members of the comparative group who would have difficulty complying with the requirement or condition of by-law 12.

3. In this case the applicant simply failed to adduce evidence of the comparative group.  Even if the result of such enquiries was to reveal no other persons fell within the comparative group such enquiries would be necessary to discharge the onus and satisfy the need to identify the proportion of people in that group who are able to comply with the condition.  The significance of that failure in this case is highlighted by the applicant’s son as a potential member of the comparative group.  In any event the matters were not explored in evidence.  The result is no comparative group was established.  It follows no assessment can be made as to whether the proportion of people in the base group who are able to comply with the condition are substantially higher than the proportion of people in the comparative group who are able to comply with that condition.

4. The applicant made a complaint about and objection to the submission made by the respondent that there was no evidence adduced by her on this point.  The applicant contended that her case had been conducted on the premise this matter was not in issue.  Respectfully, however, even if that were the case no procedural estoppel would arise in these circumstances. No detriment arose. Here the only detriment that could be alleged in support of an estoppel would be a compulsion to proceed without a capacity to present evidence. In this instance it was made plain to the parties that given the uncertain state of the law at the time of trial because of the outstanding appeal the matter of adducing further evidence would be reserved for resolution following the appeal decision. In the event no application was made by the applicant to reopen to adduce further evidence.

5. The applicant bears the onus of proof.  Despite the applicant’s complaint premised upon the pleadings the fact remains that she carried the onus of proof but failed to discharge it in respect of this critical evidence.

6. The applicant restated the objection in her objections and written submissions filed 23 July 2008 being submissions received after the judgment of the Full Court.  Given the case initially proceeded in the full knowledge of the appeal from the first instance decision in Forest v Queensland Health (supra) and the significance of Forest v Queensland Health (supra) it was known to the parties that there would be no decision by this Court without affording the parties any reasonable opportunity to re-assess their cases in the event that course was considered reasonably necessary by the parties having regard to the outcome of the Full Court’s decision.  In the event no applications were made.  I have noted earlier that the respondent proposed to challenge the applicant re-opening but in the event consideration of that issue was not required because no such application was made.

7. In my view the applicant has not been disadvantaged by the respondent’s conduct of its case.  The respondent merely required the applicant to discharge her onus of proof on this point.  Even if she were unreasonably surprised (which I do not accept) she has not sought any opportunity to address this matter.

8. Although the applicant rhetorically noted the questions to be addressed it is not to the point that the task may be onerous.  It has now been conclusively determined that that issue cannot be established by inference.  It must be proven by evidence.  There was none.

9. The test as expressed by the Full Court in State of Queensland v Forest (supra) is plain; the proportion of people in the comparative group who were able to comply with the condition or requirement is a matter that must be addressed in the evidence. The evidence does not address that matter. It follows that no finding can be made that the first prerequisite of section 6 was satisfied in relation to the conduct complained of. The applicant has failed to establish the first element of indirect discrimination within the meaning provided by s.6 of the Act.

10. In the event my analysis is wrong it is appropriate to consider the balance of the requirements provided for in section 6.

Was the requirement reasonable having regard to the circumstances of the case

1. The respondent contends that even if it did require the applicant to comply with a requirement or condition then it was reasonable having regard to the circumstances of the case.[25]

   [25] Reference – para 11(b)(ii).

2. The relevant principles governing this consideration were set out by Her Honour Justice Collier in Forest v Queensland Health (supra) at page 70 where Her Honour in adopting the majority in Catholic Education v Clarke (supra) noted them as follows:

   “i.     The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances: Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 111;

   ii.     The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other: Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263; Deane J in Waters v Public Transport Corporation at 395-396 per Dawson and Toohey JJ, at 383.  since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable: Lockhart J in Commonwealth v Human rights and Equal Opportunity Commission (1995) 63 FCR 74 at 82-83;

   iii.     The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience: Styles at 263.  It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case: Heerey J in Australian Medical Council v Wilson (1996) 68 FCR 46 at 61-62; Sackville J in Commonwealth Bank v HREOC at 112-113; and

   iv.     The Court must weigh all relevant factors.  While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition; Waters v Public Transport Corporation at 395…However the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable…”

3. The question boils down to this: is the enforcement of by-law 12 a requirement or condition which is not reasonable having regard to the circumstances of the case?

4. In this case it was submitted for the applicant that the nature and extent of the discriminatory effect of the applicant in being unable to live in her residence with Punta and have access to the common area is of much greater significance than any reason advanced by the respondent in favour of the condition or requirement.

5. By-law 12 was introduced as part of the original Group Title Scheme. Its object is clear; that is to ensure no member of the Scheme keeps cats or dogs on any lot within the Park or upon the common property. The by-law is not an unusual by-law. It is reflected in the current scheme in Schedule 4 clause 11 BCCM Act.

6. The by-laws of any CTS are not writ in stone[26].  They may be amended despite the significant effort required to do so.  The respondent has consistently said it is merely enforcing the by-laws, including by-law 12 which the applicant acknowledged before she and her husband purchased their lot.

   [26] By laws such as by-law 12 which commenced under the former legislation, the Building Units and Group Title Act which formerly regulated community title, still have force despite the repeal of that legislation by operation of the transitional provisions contained in the BCCM Act. The BCCM Act now regulates community title. It provides the by-laws of the earlier schemes are now incorporated into a scheme’s Community Management Statement. To amend by–laws now requires a new community Management Statement which may incorporate ‘differences in the by-laws (other than a difference in exclusive use by-laws) by special resolution’ : s 62 (3) BCCM Act. The relevant by-law in question is one capable of amendment by special resolution. See Schedule 4.

7. In its submissions the respondent contended that a founding principle of the CTS was as an eco village and by-law 12 was directed to that principle. Additionally it says that the former cattle property would be rehabilitated to encourage the return of natural flora and fauna.  Accordingly dogs and cats were prohibited because the developer considered their presence would drive away native fauna and inhibit rehabilitation.  That appears in any event to have been the result although it was not necessarily the original premise upon which the development proceeded. 

8. The applicant contends the medical evidence demonstrates her mental state will further deteriorate if she is not permitted to keep the dog.  Against that the respondent says the applicant knew of the conditions before purchasing her allotment; the significance of the condition to the maintenance of the “eco” friendly status of the development; and the disruption and upheaval the presence of the dog would cause.

9. Mr Davies, the son of the original developer, gave evidence on these matters.  He is a real estate agent in Bundaberg.  He stated that the original proposal was simply to subdivide the estate, a former cattle property, into five acre lots.  Although Mr Davies said council would have allowed that development what was ultimately developed was the group title eco-village.  Whatever the true situation the development was obviously not “cutting edge” in style.  From a view conducted by the Court together with the photographs and brochures forming exhibits 4, 5 and 8 it can be seen that this development is located in harsh scrubland.  It is distant from a regional centre. 

10. The photographic evidence illustrates that the flora being considered here appears to be unexceptional typical savannah scrub.  Where development has occurred the flora has not been permitted to re-establish.  Concerning fauna, it principally appears to be kangaroos.  During the course of the view kangaroos and some birdlife on the lake was apparent.  Of itself the fauna did not appear to be exceptional and no evidence was adduced to suggest otherwise.

11. The respondent’s argument that by-law 12 pre-existed these events and that its terms were well known to the applicant before she agreed to purchase the lot has only superficial appeal.  As I have noted the terms of by-law 12 are not writ in stone.  However its preservation in this instance provides a fulcrum for asserting an unreasonable requirement or condition.

12. The principle reasons advanced for the respondent in favour of the condition or requirement pertain to the initial establishment and ongoing maintenance of the park as an eco friendly park.  In particular it was alleged that the presence of the dog would disturb local flora and fauna. 

13. For instance it was suggested that the dog would disturb or pose a risk to kangaroos, including joeys lining the route of the applicant’s regular walking route.  It was also suggested the dog would bark exacerbating the impact upon wildlife.

14. I did not find those submissions particularly persuasive.  First there was evidence that domestic animals had been seen in the park and could readily gain access to the Park because the park itself was not fenced off from adjoining properties.  The park is reasonably proximate to the township of Gin Gin.  There is no reason to not suspect the park is well within comfortable roaming distance of dogs from that township.  Indeed Mr Abbott conceded in cross examination that he had seen dogs in the park on at least two occasions over the past 2 years[27] although he suspects they might be neighbour’s dogs.

    [27] T 242 line 10.

15. Secondly is the nature of the dog Punta itself.  While some effort was made by Counsel for the respondent to characterise the dog by reference to its terrier breeding as a dog which was a working prey dog that characterisation ignored the dog Punta itself.  Punta is a terrier/cross breed and has undergone obedience training as is discussed below.  At all times it is kept on a leash when outside the applicant’s residence.  Indeed it would appear from the evidence that the dog rarely if ever left or leaves the applicant’s residence.  At least that was the position between early 2002 and late 2004 when its presence in the eco-park was discovered by the neighbour Ms

    
    

    Raymond when she knocked on the applicant’s door.  I had occasion to observe the dog over the course of the four days of hearing in Bundaberg.  The dog appeared to sit passively with the applicant throughout that time. I noted occasionally the dog to be on the applicant’s lap but otherwise to sit at the applicant’s feet.  On one or two occasions it did bark but the bark was more in the nature of a yap than an aggressive bark. 

16. I heard evidence from at least one witness who I regarded as being fair minded.  He made appropriate concessions about the comparison between a seeing-eye dog and an assistance dog[28] and had no difficulty in accepting that the presence of a guide dog would not unduly interfere with the parks eco friendly nature. 

    [28] Abbott T 243 Line 10.

17. In this case the difficulty evidenced by the cross examination of a number of the witnesses, including Messrs Davies, Pullner and Raymond was their difficulty in conceptually accepting an “assistance dog” as being on par with a “guide dog” for the purposes of the DD Act.[29] Their evidence was coloured by their own intuitive appreciation of the nature of Punta’s training and its relevance of that training to alleviate the applicant’s condition. Simply put they did not believe the dog was an “assistance dog”. Although they did not have any appreciation of the expression of s.9 it was apparent they did not accept the dog was one trained to assist the applicant alleviate the effects of her disability. Had they been able to grasp the significance of that issue they may well have more readily accepted the concept.

    [29] Davis T 199; Abbott T 240, 242, 243.

18. Likewise in my view a fair minded person considering the nature and extent of the discriminatory effect of by-law 12, balanced against the reasons advanced in favour of the condition or requirement, would be satisfied that the harm occasioned by the discriminatory effect of by-law 12 outweighs the reasonableness of the condition under the circumstances.

19. As with Her Honour Justice Collier I too consider that section 3 of the Act and its objects are important. As Her Honour noted the DD Act clearly contemplates that a disabled person have an assistance animal trained to assist in alleviating the effects of the person’s disability and contemplates that such person is entitled to that assistance or other forms of support as may be appropriate in the circumstances. Subject to training, the dog Punta presented as a reasonable response on the applicant’s part to her disability and as a response to alleviate the effects of her disability. The respondent would have been on firmer ground with its objections if for instance the applicant had chosen a pit bull terrier or perhaps a doberman pincer as an assistance dog for her situation.

20. In this case I do not think any reasonable person knowing the dog, its purpose, its handler or training could conclude that its presence could be detrimental to the environmental principles of the respondent, in fact or theory.  This is particularly provided the dog is kept within the applicant’s house with occasional time in her garden or indeed on parts of the common property with the dog supervised and on leash.

21. For completeness I note the applicant is unable to comply with the requirement or condition and this satisfies the requirement of s.6(c).

22. I have earlier concluded that the applicant has failed to establish the requirement under section 6(a) because she did not adduce any evidence in respect of a comparator group. However, but for that failing, she would have established her claim under s.6 as I am otherwise satisfied that the requirement or condition was not reasonable having regard to the circumstances of the case and was one she was not able to comply with.

Section 9 Disability Discrimination – Trained Animals

1. In addition to the allegation of indirect disability discrimination pursuant to section 6 the applicant contends she has been the subject of direct discrimination pursuant to section 9 of the DD Act. Relevantly section 9 provides:

   “9.    Disability Discrimination – Guide Dogs, Hearing Assistance Dogs and Trained Animals

   (1)    For the purposes of this Act, a person (discriminator) discriminates against a person with:

   …

   (c) any other disability;

   (aggrieved person) if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person possesses, or is accompanied by:

   …

   (f) any other animal trained to assist the aggrieved person to alleviate the effect of the disability, or because of any matter related to that fact;

   whether or not it is the discriminator’s practice to treat less favourably any person who possesses, or is accompanied by, a dog or any other animal.”

2. I have already found that I am satisfied the applicant suffers a “disability”.  It follows the issues for determination in respect of this complaint are:

   a)Whether the dog Punta was trained to assist the applicant to alleviate the effect of her disability; and

   b)Whether the respondent treated the applicant less favourably because of the fact she possessed the animal trained to assist her alleviate the effect of her disability.

Trained to assist the aggrieved person

1. In written submissions counsel for the applicant submitted “Punta has been disciplined and instructed to obey (the applicant) and to come to (the applicant) on command.  That enables (the applicant) to control Punta and use Punta to provide company and solace to her to reduce her level of anxiety.  To have Punta obedience trained has permitted (the applicant) to have an animal that will be there for her and behave in an appropriate way to allow for her anxiety to be reduced or minimised”.  He submitted that such training allowed Punta to be come devoted to the applicant and to protect her and warn her of any dangers that might be present.  Thus there was a nexus between the obedience training and the effect of the applicant’s anxiety.

1. The respondent’s case was premised upon a number of grounds, including challenging the expertise of the applicant’s expert and the extensiveness of the training.  However most significantly he submitted there was no evidence to demonstrate that the purpose of the training was to alleviate the symptoms of the applicant’s disability.

2. Charlene Louise Hopkinson holds a certificate issued by the RSPCA in dog obedience instructing at instructor level.  She has been a member of the RSPCA Bundaberg Obedience Training Team for six years.  She has trained her own dogs in pet assistance therapy and also undertaken volunteer work in pet assistance therapy with her dogs at schools, respite centres and retirement villages.  She has done this for at least 2 ½ years. 

3. Ms Hopkinson first met the applicant and Punta towards the end of 2002.  Shortly after that time in 2003 she commenced giving instruction to the applicant in dog obedience training.  That training was rendered at the RSPCA’s Bundaberg premises when the applicant would attend with the dog Punta.  The training was undertaken over a number of months and a particular aspect of dog training was touched upon each week.

4. In November/December 2005 she assessed Punta.  She noted at that time Punta was a well behaved animal of good temperament who appeared happiest when in the company of the applicant. She noted that Punta had been trained in basic obedience and socially acceptable behaviours.  She said this was taught by both voice and hand signals which were used in conjunction wherever possible. 

5. On 25 March 2006 she reassessed Punta on his obedience skills.  The criteria she used were the same criteria used to graduate a dog from obedience training by the RSPCA Queensland.  Her observation was that Punta was very obedient and always responded to the applicant’s voice or hand signals and that the applicant was able to maintain control of Punta at all times.  She observed that Punta appeared to respond appropriately to situations such as a perceived threat or a game.  She noted that for a dog to display this type of interaction the dog needs to be trained in obedience and be under the handler’s control at all times. She concluded that the dog Punta exhibited characteristics  consistent with it having undergone such training. 

6. Generally she noted that assistance and therapy dogs come in all sizes and are trained in a variety of methods depending upon the purpose for which they are to render assistance. Accordingly she noted the type of training required for assistance or therapy dogs is difficult to define given the reasons for the need for these types of dogs are many and varied.  She noted however that training of these dogs begins with obedience, social awareness and forming an unbreakable bond between the dog and its owner.  She noted that obedience is a learned behaviour whereas bonding occurred naturally and is brought about by respect of a dog to the owner and owner to the dog.  While she noted Punta was obedient to the whole family his obedience to the applicant was paramount.

7. Since her assessment of 17 June 2006 she swore that she had seen the applicant and Punta on approximately three or four occasions at the RSPCA shop where she worked.  She noted that during those times she had checked on Punta’s obedience training and found that Punta was as obedient on those occasions as first she had observed on her secondary assessment of him.

8. The training received by the dog was basic obedience training.  It encompassed commands of sit; drop or lay down; come when called; heel (walk beside) or off the lead; stand (as for examination); wait; and put to heel (where the dog turns to the handler’s left side and sits).  Social skills include: shake the paw and roll over.  Punta was clearly a good student for when he was assessed at a later time it was noted he was always obedient and responded to the applicant’s hand signals and that she was able to maintain control of him at all times.

9. In this regard for instance the extent of the training undertaken by Punta is readily contrasted to that undertaken, for instance, by the dogs being considered in Forest v Queensland Health (supra).[30]

   [30] See the extensive task list at [103].

10. Comparatively it is apparent that the training was not extensive. However section 9(1)(f) of the DD Act does not express the phrase “trained to assist” in quantitative terms. At first instance it requires consideration only of whether the subject animal is trained to assist the aggrieved person. When the training given to Punta is assessed from that perspective it appears the issue to be resolved is whether obedience training satisfies the nexus requirement.

11. At [109] of Forest v Queensland Health (supra) Collier J at first instance observed that,

    “section 9(1)(f) requires the establishment of a nexus between the skills the animal has been trained to perform and the alleviation of the effects of the aggrieved person’s disability”.

    She had earlier stated at [108],

    “…the training of the dogs to a higher standard of obedience would not of itself necessarily be training which could assist to alleviate the effect of the applicant’s disability.”[31]

    [31] In that case Her Honour considered other evidence and ultimately concluded that the nexus had been established.

12. The principle and test was later concisely stated by the majority of the Full Court in State of Queensland v Forest (supra) at [106] where their Honours noted:

    “…The question is whether (the dogs) had been trained to assist Mr Forest to alleviate effects of a disability.   The question is not whether the dogs do in fact assist Mr Forest to alleviate effects of a disability but whether they were trained with that purpose or object in mind.”

13. In her evidence the applicant deposed to having given Punta training, including training through repetition to stay with her; sleep with her; and to respond to her symptoms of her conditions (which she says provided relief to her from those conditions); keep watch for danger; to warn her of trespassers; and, to stay with her in social situations.  The effect of this, she says, was to give her a level of confidence permitting her to socialise with those outside her immediate family and to reduce her level of anxiety.

14. In his report of 23 August 2006 Rodney Nembach, psychologist, was asked to address this question:

    “5.    What assistance is the dog able to provide to the above symptoms and what is your opinion as to how Punta has assisted in each of the above circumstances”.

15. His response was:

    “Punta is one of Mrs Ondrich’s special interests.  As a result whenever Mrs Ondrich is feeling particularly stressed or anxious, she will feel far more relaxed because the dog is present.  At the last counselling session which Mrs Ondrich attended, she was displaying high levels of stress.   The symptoms were significantly reduced when the dog Punta, sat on her lap and she commenced stroking him.  Both Mrs Ondrich and her husband indicate the dog assists with her sleep at night.  She stated on numerous occasions when she has been unable to sleep she has sat on the lounge chair with the dog on her lap and has been able to sleep for the night.

    Punta has been helpful in alerting Mrs Ondrich about visitors, when people are coming close and in alerting her to dangers when she has been walking especially when she has been oblivious to other things around her.”

16. These matters were expanded upon in his oral evidence where the following exchanges occurred.

    “Question: Were there other occasions that you also saw her without Punta during that period?

    Answer: I’m just – it would’ve been in the first 12 months I would’ve seen her without the dog.

    Question: And then you’d seen her with the dog?

    Answer: And I’ve seen her with the dog once her husband decided to also have therapy and sessions with us in order to help him understand her condition.

    Question: Did you notice any difference in her presentation as a psychologist between when you saw her without Punta and with Punta?

    Answer: Yes, quite a significant difference.

    Question: Can you explain what the difference was?

    Answer: The difference was that she often would turn up to therapy very stressed, not able to cope with some issues that were happening in her life – quite varied.  It would take a full session working through those issues helping her to understand what was happening and what was going on and by the time we had finished our sessions she would be relaxed, able to move forward with the issues.  On those occasions when we’d have the dog in the room with us I notice that the dog would sit up on her lap, she would start to stroke the dog and I could visibly see her relax very quickly, within 2 or 3 minutes.  And I would say that the dog had a quicker effect than I could in a whole hour of therapy.”[32]

    [32] Transcript page 178 lines 16 – 35.

17. A little later this exchange occurred:

    “Question: Did you see at all any interactions between, for example, Punta, Mrs Ondrich and someone else if someone else had come into the room or near the room at all?

    Answer: Yes.  I’ve definitely seen the reaction.

    Question: What was that Mr Nembach?

    Answer: The – the reaction that I had seen when it’s been strangers is that the dog will start to back, no baring of teeth but just barking, just like a warning sign and the dog would – also be held closely by her.  The dog would also seem to nestle in closer to her as well.  If it was someone the dog knew, it would still bark, but a lot more friendlier, the tail was wagging, whereas the other one is that I didn’t notice the tag – the tail wagging”.[33]

    [33] Transcript page 179 line 1 – line 12.

18. To that point the evidence does not establish that the training provided to the dog had any real nexus with her disability.  That is to say that while obedience training clearly did assist the applicant and her dog it was not training to assist in the alleviation of the effects of her disability.  From that evidence the fact of the dog’s companionship appears to be the cause of the applicant’s better psychological state of mind.  However the evidence itself does not demonstrate that training was required to develop that state of companionship.

19. This view of the evidence is confirmed by Mr Nembach’s answer to question 6.  The question and answer were as follows:

    “6. What would Mrs Ondrich’s situation be if she didn’t have the dog to assist her?

    It is more than probably (sic) that Mrs Ondrich’s symptoms of anxiety and stress would be greatly exacerbated.  Punta is a major stress and anxiety reliever.  Mrs Ondrich would also be at greater risk when dealing with people and when out in the environment walking.”

20. The only other relevant evidence of Mr Nembach is contained in his report of 1 June 2005.  In that report he stated:

    “Pet therapy is a genuine therapy and is recommended for the treatment of her illness.  Her dog has been purchased to assist her with her ongoing health condition and the dog has been trained to assist in alleviating social and safety effects arising from this condition.  I believe her pet is an integral part of her treatment and it would have been an extremely detrimental effect on her wellbeing if her dog was removed from her care”.[34]

    [34] Exhibit 6.

21. However the difficulty with Mr Nembach’s observation on that point is that the evidence of the dog trainer, Mrs Hopkinson was not that the dog was trained to alleviate social and safety effects arising from her condition.  The dog merely received obedience training.  In Mrs Hopkinson’s opinion that training is only a matter relevant to bonding.[35]

    [35] Transcript page 161, line 42.

22. It may well be the fact that the presence of the dog had and has the effect of alleviating the applicant’s social anxiety and stress but that matter alone does not demonstrate the dog was trained to assist the applicant achieve that outcome.  It is plain the presence of the dog alleviates the effect of the disability but otherwise the evidence does not demonstrate any nexus between the training it received and that outcome as an intended outcome from that training. 

23. Other evidence was adduced by the applicant.  It was not helpful.  For instance her GP, Dr Scott Jenkins noted the benefits of companionship achieved by having the dog and of the dog’s significance to her psychological wellbeing.[36]  None of that is in doubt.  However it does not address the issue.  Indeed Dr Jenkins describes the association between the applicant and the dog as “a significant therapeutic relationship”.  That is an apt description referring to the relationship between the applicant and the dog.  However there is nothing remarkable about that fact. It is difficult to imagine how the circumstance of a natural canine/human relationship could be classified as training; not to mention training intended to assist an aggrieved person to alleviate the effect of a disability.

    [36] Exhibit 7.

24. Likewise the evidence of Dr Cook was of no assistance on this point.  He too focussed upon the remedial effect of the dog’s presence upon the plaintiff.  He did not make any observations concerning the relationship between the skills the animal has been trained to perform and the alleviation of the effect of the applicant’s disability.

25. In summary while the dog Punta has undergone a form of training in the nature of obedience training I am not satisfied that the evidence demonstrates that there is any relationship between the training and the skills acquired from that training and the alleviation of the effect of the applicant’s disability.

26. Accordingly the applicant does not possess or is accompanied by an animal trained to assist her to alleviate the effects of her disability as is required by s.9(1)(f) of the DD Act.

Treatment of the applicant less favourably

1. The process by which s.9 is examined was explained by the majority in State of Queensland v Forest (supra) commencing at [110]. There the majority noted:

   “Under s9, a “discriminator” discriminates against an “aggrieved person” if the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person possesses or is accompanied by a relevantly trained animal, or because of any matter related to that fact namely, the fact that the aggrieved person possesses or is accompanied by, a relevantly trained animal. Thus, s9 calls for a comparison, insofar as it refers to an aggrieved person being treated less favourably.  The aggrieved person must be treated less favourably than the aggrieved person would have been treated if the aggrieved person did not possess, or is not accompanied by, a relevantly trained animal.”

2. Their Honours continued:

   “[112] Section 9(1) defines certain circumstances in which, for the purposes of the Act, a person is taken to discriminate against another person with a disability.  However, s9(1) says nothing about the ground of discrimination.  In that regard, s9 operates in a similar way to s7 and s8.  Thus, s7 provides that one person discriminates against another person with a disability, where the discriminator treats the aggrieved person less favourably because of the fact the aggrieved person is accompanied by or possesses a palliative or therapeutic device…that is used by the aggrieved person.  Section 8 provides that one person discriminates against another person with a disability, where the discriminator treats the aggrieved person less favourably because of the fact that the aggrieved person is accompanied by an interpreter, a reader, an assistant or a carer who provides services to the aggrieved person because of the disability.

   [113] That is to say, ss7, 8 and 9 are concerned only with the finding that constitutes discriminating by one person against another.  None of them speaks of the ground on which discrimination takes place. In contrast, both s5 and s6 define, for the purposes of the Act, when one person discriminates against another person on the ground of a disability of the second person.

   [114]Accordingly, before there can be a finding of unlawful conduct under s.23 or s.24, by reason of one persons discriminating against another within ss7, 8 or 9, it is also necessary to make a finding as to the ground on which the discrimination occurs.…Thus, for example, even if there is discrimination within s9, because a discriminator treats an aggrieved person less favourably because of the fact that the aggrieved person possesses or is accompanied by a relevant animal, that discrimination will not be unlawful unless it is established that the discrimination is on the ground of the aggrieved person’s disability…”

3. I have earlier determined that the dog is not an animal trained to assist the applicant to alleviate the effects of her disability. However if I am wrong on that determination I should consider the application of section 9 to this case.

4. Proceeding upon the assumption the applicant satisfied s.9(1)(f) the issue to be resolved is whether the respondent, by requiring the applicant to comply with by-law 12, has treated the applicant less favourably because of the fact that the applicant possessed a dog trained to assist her to alleviate the effects of her disability or whether the discrimination was some other basis.

5. Consistent with State of Queensland v Forest (supra) there must be a finding as to the ground on which the discrimination occurred under section 9 before the Court can proceed to make findings of unlawful conduct under section 24 of the DD Act.

6. The applicant says the ground was that she possessed an animal trained to assist her to alleviate the effects of her disability. The respondent denies the applicant’s allegations and says the ground was the duty cast upon it by section 94(1)(b) BCCM Act to enforce its by-laws.

7. Assuming the dog was an assistance dog, I consider the ground of discrimination was the applicant’s possession of it.  Objectively, if the applicant required the possession of an assistance dog that fact could not reasonably be altered.  However in the face of that fact it was and remains open to the respondent to amend its by-laws in order to modify the discriminatory effect of them. This prospect was never countenanced by the respondent. 

8. The means to alleviate the ground for its attitude to the assistance dog was reasonably open to it.  Accordingly the question is: did the respondent’s failure to modify the by-law disentitle it from reliance upon by the by-law as a ground for discrimination, rather than the applicant’s disability?

9. Objectively I do not consider the respondent’s position justifiable. Clearly, other matters aside, the respondent could and ought reasonably have brought its by-laws into line with the DD Act. In my view its failure to do so and its reliance upon its defective by-law to ground discrimination is not sustainable in this instance against the evidence of the applicant’s disability.

10. The Body Corporate unconditionally requires the applicant to comply with by-law 12.  In doing so the effect would be to prohibit the applicant from having the dog in her allotment or on common property.  Consequently it would be the fact that the respondent treated the applicant less favourably than other lot holders because of the fact she possessed an assistance dog.  Clearly the answer to the question would be in the affirmative. 

11. In any event, because of my finding concerning s.9(1)(f) it follows the applicant’s claim for discrimination pursuant to section 9 must fail because the applicant has failed to prove she was treated less favourably because of the fact she possessed an animal trained to assist her alleviate the effect of her disability.

Has the respondent unlawfully discriminated against the applicant pursuant to section 24

1. At [114] the majority in State of Queensland v Forest (supra) expressed the examination to be undertaken in the following terms:

   “…, before there can be a finding of unlawful conduct under section 23 or section 24, by reason of one person’s discriminating against another within sections ss7, 8 or 9, it is also necessary to make a finding as to the ground on which the discrimination occurs. Thus, for example, even if there is discrimination within section 9, because a discriminator treats an aggrieved person less favourably because of the fact that the aggrieved person possesses or is accompanied by an animal, that discrimination will not be unlawful unless it is established that the discrimination is on the ground of the aggrieved person’s disability.”

1. Their Honours had earlier observed that section 9(1) says nothing about the ground of disability.[37] However as the majority noted, section 9 is only concerned with defining what constitutes discrimination by one person against another. Thus before there can be a finding of unlawful conduct under section 23 and/or section 24 by reason of one person’s discriminating against another within section 9 it is also necessary to make a finding as to the ground on which the discrimination occurred.[38]

   [37] At [112].

   [38] At [114].

2. Their Honours continued at [117]:

   “The aim of section 9 of the Act…when coupled with ss23 and 24 is to make unlawful some particular form of conduct in order to further an object of the Act that people with a disability have the same rights as other people in the community.  However that object is to render such conduct unlawful only when it constitutes less favourable treatment on the ground of the disability.  Giving effect to the express words of ss7, 8 and 9 will not have the effect of defeating the object of the Act.  However, there are some places where access in the company of a dog or another animal is simply inappropriate.  There are also places where a dog should be permitted only if it behaves appropriately for that place.”

3. The majority was of the view that a finding of unlawful disability discrimination under section 9 of itself is not sufficient. Accordingly in the event I am wrong in my finding concerning section 9 it is necessary to consider the applicant’s claims under section 24 DD Act.

4. Relevantly section 24 of the DD Act provides:

   “24.  Goods, services and facilities

   (1)    It is unlawful for a person who, whether for payment or not, provides goods or services or makes facilities available to discriminate against another person on the ground of the other person’s disability…:

   (a)    by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

   (b)    …

   (2)    This section does not render it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.”

5. For the applicant to successfully prosecute this claim she must demonstrate the respondent:

   a)Provided services or made facilities available; and

   b)That it discriminated against her on the ground of her disability by refusing to provide her with those services or make those facilities available.

6. For the respondent it is contended that if the applicant were successful then the provision of services or making of facilities available would impose unjustifiable hardship upon it.

7. For completeness the question to resolve is whether the alleged discrimination in respect of the provision of services and facilities was on the ground of the aggrieved person’s disability. 

Did the respondent provide services or make facilities available?

1. In her points of claim the applicant alleges the respondent “provides services and facilities” to the applicant and other residents of the park “by providing the common property which they maintain and all services and facilities associated with Kookaburra Park in accordance with the scheme”.  In particular the applicant claims that this occurs by the provision of access to the park’s services and facilities (including access to common property) with her dog Punta.[39]  The applicant further contends in her points of claim that the respondent provides services and facilities to her and other residents of the park by the provision of the common property which they maintain and all services and facilities associated with the park in accordance with the scheme.

   [39] Points of Claim paragraph 1(f).

2. The respondent admits it arranges for the supply of services and amenities, including maintenance of the common property, for the benefit of lot holders in the scheme but denies it provides services and facilities to the applicant and other members of the park. In addition the respondent says that in accordance with section 152 of the BCCM Act it administers, manages and controls the common property reasonably for the benefit of lot owners within the scheme and that in accordance with section 94 of the BCCM Act it enforces the Community Management Scheme including the by-laws for the scheme. It also admitted it arranged for the supply of sewer and amenities for the benefit of lot holders in the scheme.[40]

   [40] Points of Defence – para 4.

3. Despite that admission it later pleaded that access to the common property in the scheme is not a service or facility provided by the Body Corporate. In the circumstances the issue is whether or not the admitted services and amenities provided by the Body Corporate were so for the purpose of s.24.

4. In particular, in the present context the issue for resolution is whether these activities constitutes “services” as defined and in particular insofar as they are directed to the common property.

5. The applicant contends that consistent with remedial legislation the legislation should be construed beneficially and not narrowly: Waters v Public Transport Corporation.[41]  Further that in construing such legislation, courts have a specific responsibility to take account of and give effect to the objects and purposes of such legislation.[42]  That submission was not challenged.

   [41] (1991) 173 CLR 349 at 359, 372, 394 and 406-407.

   [42] Waters v Public Transport Corporation (Supra); IW v City of Perth (1997) 191 CLR 1 at 14, 22-23, 27, 39 and 41-42.

6. The definition of services was considered in IW v City of Perth[43].  That decision was the subject of detailed analysis by Sunderberg J in Rainsford v Victoria[44].  That analysis is a useful starting point for consideration of this case.  At [72] His Honour noted:

   “The judgments in IW are clearly dependent on the particular fact situation of that case, but some general propositions can be identified. First, not all government functions are services, although some undoubtedly are. Second, as the difference between Dawson, Gaudron and Gummow JJ on the one hand, and Toohey and Kirby JJ on the other hand demonstrates, the way in which the service is identified is critical. It is a question of fact determined by the situation of the particular case.

   Counsel for the State suggested that the touchstone for service should be whether the act involves helpful or beneficial activity: IW 191 CLR at 11 per Brennan CJ and McHugh J. I accept that this is a useful test, but in a qualified way. Most activities are helpful or beneficial to someone. That in itself does not make them services. The question must be whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs. There is little doubt that GSL provides a service to the State: there was in evidence parts of the Prison Services Agreement between the State and ACF and further evidence that ACF sub-contracted its obligations to GSL. Were it not for the decision of the Court of Appeal in Farah v Commissioner of Police of the Metropolis [1998] QB 65, I would have thought that the State, by maintaining a prison system, provides a service to the general public. However, in Farah, where the alleged discriminator was the police, it was held that assisting and protecting members of the public is a service but that pursuing, arresting and charging criminals is not. To my mind, the pursuit of criminals is so much a part of protecting the members of the public that a distinction between them is hard to justify, but I need not pursue this. These services for the benefit of the State or the general public are not to the point. The question in this case is whether the respondents provide a service to the relevant class to which Mr Rainsford belongs, namely prisoners.”

   [43] (1997) 191 CLR 1.

   [44] [2007] FCA 1059; (2007) 167 FCR 1

7. In Rainsford v Victoria (supra) the Court was considering the provision of prisoner transportation services by a prison service contractor for the transportation of prisoners between the various correctional institutions and courts.  The Court resolved it was not a service because the relevant activity was “better described as being “part and parcel of the exercise of a statutory duty and cannot be described as the provision of a service or services”.”[45]  In reaching that conclusion His Honour was guided by the incapacity of the appellant, Rainsford v Victoria (supra), to identify the “service” in any meaningful way.  As to how this service is to be identified and its significance was commented upon by McHugh J in Waters v Public Transport Corporation[46] where at 404-5 His Honour said:

   “… the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents.  Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination.  If a person is alleged to have refused to perform services, eg, the services in question must be identified in sufficiently concrete terms to enable the Board to determine whether or not there has been a refusal to perform those services.  What is a sufficiently precise identification of the service in one case may be too general in another.  If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as “the public transport system”.  If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, “transportation of members of the public by trams’ might identify the service with sufficient precision to enable the relevant issues to be resolved.”

   [45] Rainsford vVictora (supra) at [78].

   [46] [1991] 173 CLR 349.

8. In this case the services are capable of clear and precise identification.

9. John Pausey, the secretary of the Body Corporate in his affidavit described the activities of the Body Corporate to include, inter alia,

   a)Managing and maintaining the common land;

   b)Maintaining the roads within the eco village; and

   c)Ensuring that all grass and gardens on common land are maintained.

10. The applicant in her affidavit says that she wishes to have access to the common property to walk and exercise in order to improve her balance which is adversely affected by her disability.  She said that before these events she had walked with the dog “on a leash along the public roads within Kookaburra Park”[47].  She wishes to continue that activity.

    [47] Affidavit Libuse Ondrich filed  11 November 2006 paragraph 18 and 44.

11. The applicant ceased this activity because of the adverse response from her community.  On her case that response included the conduct of the respondent in taking the action it has taken in seeking to enforce by-law 12 against her. 

12. Clearly by her walking her dog the applicant seeks to enjoy the benefits of the respondent’s services in the matters noted above.  It is evident from the photographic exhibits that the respondent fulfils its duties and obligations concerning those issues.  The product of the respondent’s services appears to be a pleasant environment conducive to perambulation.

13. In my view those activities would constitute “services” provided by the respondent in that the respondent’s activities are helpful to the members of the Body Corporate, they being the relevant class of persons to which the applicant, being the person alleging discrimination, belongs; Rainsford v Victoria (supra) at [73].

14. The term “facilities” is not defined.  In the Macquarie Dictionary it is defined to mean:

    “facility (plural facilities)…9. A building or complex of buildings designed for a specific purpose, as for the holding of sporting contests.”

15. In her affidavit filed 10 October 2007 the applicant detailed her use of the facilities provided by the respondent.  Her case is asserted in a passive manner.  She deposes that “the respondent has limited (her) access” to services provided by the respondent.  She then details various “facilities” provided by the respondent to which her complaint is directed.  There is plain evidence of conduct by the respondent directed to restricting her use of its facilities.  For instance motion 8 carried at the respondent’s meeting conducted 15 January 2006 provided:

    “That the Body Corporate instruct the committee to maintain and pursue any court case or any inaction against the Ondrich family and their dog”.

16. There were proceedings on foot at that time to enforce the outcome of the adjudicators determination made on 3 September 2001.[48]

    [48] Kookaburra Park Eco Village [2001] QBCCMCmt 489.

17. Given those matters I am satisfied that it is reasonably open to infer that the respondent would not have permitted the applicant access to the respondent’s facilities with the dog Punta if she had chosen to access those facilities with the dog.

18. It is clear that the respondent makes facilities available for the purposes of section 24. It follows I am satisfied the respondent has refused to make those facilities available to the applicant.

Discrimination on the Ground of Disability

1. The principal issue for determination in this case is however whether the respondent has discriminated against the applicant on the ground of her disability by either refusing to provide the applicant with services or refusing to make those facilities available to the applicant. The earlier determination concerning Section 9 of the DD Act renders unnecessary the need to progress to consider this issue.[49] However had the applicant satisfied her claim of discrimination under s.9 I consider the evidence demonstrates the Body Corporate had discriminated against the applicant on the ground of her disability by refusing to allow her to have on her premises and permit her to have on common property an assistance dog trained to alleviate the effects of her disability. There would in that event have been a clear causal connection between the refusal of the facilities and/or services and the discrimination justifying a finding that the Body Corporate had engaged in unlawful conduct contrary to section 24.

   [49] State of Queensland v Forest (supra) at [17] [114].

Unjustifiable Hardship

1. Section 24(2) of the DD Act provides an exception to unlawful discrimination. In the event I am incorrect on my ruling on section 9 and there was a basis to find unlawful discrimination under section 24(1)(a) an issue arises as to whether or not a ruling of unlawful discrimination against the respondent in respect of its action would impose unjustifiable hardship upon it.

2. Section 11 of the DD Act provides that for the purposes of the Act in determining what constitutes ‘unjustifiable hardship’ all relevant circumstances are to be taken into account including:

   “(a)  the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and

   (b)  the effect of the disability of a person concerned; and

   (c)  the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and

   (d)  in the case of the provision of services, or the making available of facilities—an action plan given to the Commission under section 64.”

3. In its defence the respondent alleges the making available of facilities required by the applicant would cause unjustifiable hardship because:

   a)Allowing the applicant to keep and be accompanied by the dog Punta on her lot or on common property of the scheme would cause anguish to and discontent among a significant number of lot holders being members of the respondent;

   b)Allowing the applicant to keep and be accompanied by the dog Punta on her lot or common property of the scheme would severely disrupt the community at Kookaburra Park Eco Village; and

   c)Allowing the applicant to keep and be accompanied by the dog Punta on her lot or common property of the scheme would diminish the value of lots within the scheme and thereby cause detriment to other lot holders.

4. Evidence was adduced from a number of lot holders in support of the respondent’s allegations.  In that regard some additional and more specific history requires recital.

5. The evidence demonstrates that the Management Committees time was directed to these issues. The Management Committee’s initial resolution was passed by an overwhelming majority of those present at the meeting on 3 June 2006[50].

   [50] Affidavit John James Pauley filed 18 October 2007 Exhibit JJP9

6. As a body of evidence, the minutes of the Management Committee assist in assessing the mood of the community. 

7. Minutes of a meeting held in about February 2006 note the meeting dealt with the issue on two occasions.  The first was motion 8 and second was motion 16.  The minutes of meeting record a quorum of the meeting comprising “30 postal votes, 11 voting from the floor”.  It did not detail who held which proxies.  Motion 8 was carried, 23 for, 5 against and 13 abstentions; Motion 16 was carried, 21 for, 17 against and 1 abstention.  The voting at that meeting did not suggest a strong feeling for or against the applicant.  Each was passed by a bare majority and the vote against was heavily fractured.  It is plain the majority did oppose the applicant although the strength of the majority feeling could not be said to have been overwhelming. 

8. From minutes of the later meeting convened on 3 June 2006 it appears the community’s mood had changed. The record does not reflect how many persons physically attended. However someone held a swag of proxies. When the matter of the applicant’s dog came on for vote 32 voted to rescind the motion of 15 January. There were only 6 votes against and 3 abstentions[51]. That motion led to the letter of 13 June received by the applicant.

   [51] Affidavit John James Pauley filed 18 October 2007 Exhibit JJP9

9. Accepting the mood of the community as being reflected in the votes carried at the Body Corporate Management meeting it could be concluded that anguish was caused to a significant number of lot holders.  Clearly given that the matter was sufficient to warrant agitation at Body Corporate Management meetings is itself evidence of discontent among a significant number of lot holders, being those lot holders who voted in favour of the various motions calling for the dog to be removed from the common property and the applicant’s allotment.

10. As to what was meant by disruption was not explored at trial.  If it meant “social upheaval” then that matter has been demonstrated. Mr Pauley swore in his affidavit that the presence of the dog had caused considerable disruption within the community and that he thought it would increase if the dog remained in the Park. In any event the fact that this small issue has distracted the parties and absorbed significant Body Corporate Management committee time and resources is evidence of its disruptive effect.  Aside from that matter there was no other evidence suggesting the dog’s presence had been disruptive.  The respondent sought to adduce evidence that the dog was a risk to native fauna but that evidence was inconclusive at best.  No other particular characteristic of the dog could be identified as being disruptive.

11. Anguish has certainly been occasioned by the presence of the dog. 

    
    

    A large body of evidence was adduced from various residents concerning their expectations arising from their decision to purchase in the park.  Many residents noted they purchased their allotments with the park’s ecologically sustainable objectives in mind and in the expectation that this philosophy would be preserved and enforced by the Body Corporate.  The prohibition on cats and dogs was seen as important in respect of this objective[52].

    [52] Affidavit Carolyn Kathleen Goddefroy filed 16 October 2006 para 6; affidavit Grant Davies filed 16 October 2006 paras 12 and 25 to 29; affidavit John James Pauley filed 18 October 2006 paras 25, 32 and 34; affidavit Jennifer Rossyln Abbott filed 16 October 2006 para 9; affidavit Peter O’Sullivan filed 16 October 2006 para4; affidavit Reinhard Plumer filed 16 October 2006 para 4 and 5; and affidavit Rosales Raymond filed by leave 29 November 2007 para8 and 9.

1. Although under cross examination no witness was able to give evidence of any event where this ideal had been imperilled such as by evidence of the dog chasing wildlife or similar many gave evidence of this fear. 

2. Counsel for the respondent sought to paint the dog as a potential “attack dog” by reference to its breeding.  However observations by myself and other persons who had been exposed to the dog did not support that contention.  I do not think the presence of the dog Punta alone would imperil the park’s philosophy. 

3. Finally it was alleged that the presence of the dog would “diminish the value of the lots”.  Quite a number of witnesses deposed to intention to sell their allotments if the dog were permitted to remain in the park[53].  However under cross examination it became apparent that this evidence was more an expression of sentiment rather than an intention to be acted upon.  No reliable evidence was adduced concerning the impact of the dog’s presence upon property valuations.  Mr Grant Davies, the son of the developer gave some evidence.  He is a real estate agent in Bundaberg and a lot owner and is also the treasurer of the Body Corporate.  At the time of the development he was involved in the sale of lots.  He made the self evident observation that permitting a dog to reside in the park may affect marketability of the lots in the park as “eco village” lots and discourage potential purchasers of land in the development. That was a matter of real concern to him as land is still to be released for sale within the park. However his evidence did not deal with the impact that the presence of an “assistance” dog might have.

   [53] Affidavit Carolyn Kathleen Goddefroy filed 16 October 2006 para 17; affidavit John James Pauley filed 18 October 2006 paras 28; affidavit Jennifer Rossyln Abbott filed 16 October 2006 para 14; affidavit Peter O’Sullivan filed 16 October 2006 para 8; affidavit Reinhard Plumer filed 16 October 2006 para 8; and affidavit Rosales Raymond filed by leave 29 November 2007 para14; Goddefroy T190; Pauley T235; Pulmer T251 and Raymond T258 and T260.

4. A number of witnesses were cross examined about the prospect of a “guide dog” in the park.  In many instances their answers were inconclusive because of the inability to appreciate the conceptual nature of the questions. However the questions and non-responsiveness illustrate the illogical position taken by park residents. It was best illustrated by the evidence of Mr Davies[54].  For instance it would appear that Park residents would accept a guide dog.  But they reject the applicant’s assistance dog.   Unlike in the case of Forest v Queensland Health (supra) where the dogs were rejected because of bad behaviour the only basis advanced in the instant case for rejecting the dog was the Body Corporate’s rules promulgated to ensure the park preserved its eco friendly character. 

   [54] T199 Ln 13 -30 and T200 Ln15 to T 202 Ln 15

5. There was no suggestion by any witness that a guide dog would be seen to prejudice the park’s “eco” credentials.  Logically, if the applicant’s dog was a genuine assistance dog it too would not prejudice the park’s “eco” credentials.

6. It was apparent that much of the difficulty in this case has been occasioned because the applicant and her family have not welded comfortably into the social fabric of this small community. Various witnesses made adverse observations about the applicant and her family.  For instance, Mr Pauley, the Body Corporate president, was considering selling his allotment because of his unhappy experiences in dealing with the Ondrichs in his capacity as a Body Corporate member.[55]  Ms Godfrey noted, “the people with the dog are unapproachable”.[56]   There was generally a palpable sense of hostility toward the Ondrichs largely because of the matters the subject of these proceedings.  The only member of the Ondrich family called was the applicant.  Although approaches properly were made by her counsel to contain issues to matters relevant to this proceeding it was obvious that there was a negative undercurrent of feeling and antipathy by members of this community toward the applicant and her family.

   [55] Transcript 235 line 45.

   [56] Transcript T 190 line 42.

7. The applicant herself was not an impressive witness.  Her personality was one of an individual who was socially withdrawn, lacking in confidence in expression and submissive.  The respondent asserted for instance that the applicant, knowingly of by-law 12, agreed to relocate from Melbourne to the Park on the premise of her receiving a dog.  She denied that.  However given the timing and her personality I think she was open to such an inducement proffered by her husband.  He is clearly a more forceful individual and has actively sought to involve himself in Body Corporate affairs when it suits his interests.[57] 

   [57] See Body Corporate Management Committee meeting minutes.

8. Given the notice of and significance of by-law 12 to the relevant community it is understandable that this issue has generated strong feelings of antipathy by community members toward the applicant.  However that is not how qualities of unjustifiable hardship can be assessed.

9. In considering “unjustifiable hardship” the onus of proof is upon the party asserting that unjustifiable hardship would be imposed by permitting the dog to remain in the park.[58]

   [58] Cooper v Human rights and Equal opportunity Commission (1999) 93 FCR 481 at [31] applying Vines v Djordjevitich (1955) 91 CLR 512.

10. If the dog were an assistance dog within the terms of s.9(1)(f) of the DD Act then clearly the applicant would enjoy the benefit of the dog’s presence to afford her comfort from her disability. For the respondent the only real detriment would be the occasional presence of the dog in the common area on those instances where the applicant sought to exercise herself by taking a walk along the park’s roads in company with the dog.

11. In the absence of the dog the applicant’s ongoing anxiety disorder would be exacerbated.  Alternatively she would be required to relocate from the Park.  If her family also relocated there would be a significant expense associated with such relocation.  That expense would be exacerbated by the difficulty that the applicant would have in selling her allotment.  It was apparent from the evidence of some witnesses who have had their allotments on the market for some considerable time that the market for allotments in this particular park is not fluid.  Indeed a number noted, including the applicant that to sell would cause financial hardship.

12. Although members of the Body Corporate would be irritated by the presence of the dog the source of irritation is irrational. That is, the views of the respondent and a significant number of the community are in fact galvanised against the Ondrichs personally. The dog has become a vehicle through which they can express their opprobrium of the Ondrichs. If the dog were a guide dog there would be no objection. If I were to find the dog was an “assistance dog” as provided for under s.9(1)(f) DD Act then given such a finding there would be in principle no difference between it and a guide dog and insofar as there is a perception of difference it lacks logic and is irrational. Whilst I appreciate the basis for the community’s strong feelings against the Ondrichs that is not a matter for this proceeding.

13. Aside from the applicant and respondent no other persons are concerned with the matter.

14. The effect of the disability is such that the applicant suffers an anxiety disorder which is alleviated by the dog.  The significance of the dog to the amelioration of her condition was illustrated by her initial relocation from the park to a refuge shortly after the initial adjudication decision in 2001.  I observe that the applicant did not impress me as a particularly robust individual.  The dog is clearly a significant “crutch” upon which she leans for support.  The effect of her disability is such that without the dog she would probably leave the Park.

15. The financial circumstances of the respondent were not the subject of evidence.  In any event the hardship contemplated is not one that carries any significant financial burden.  The matter can readily be resolved by the amendment of the CTS by-laws if it chooses to do so.  No cost would be involved in that action.

16. Finally no action plan has been given by the respondent to the Commission under section 64 of the DD Act.

17. Having considered the matters required to be considered under section 11 I am of the view that no unjustifiable hardship can be demonstrated by the respondent. In the event I was incorrect in my earlier determination and there was an unlawful discrimination under section 24 I would not exercise any discretion under section 24(2) to declare that the conduct was not unlawful because to do so would impose unjustifiable hardship upon the respondent in providing the services and making its facilities available to the applicant.

Discrimination in the Provision of Accommodation

1. The applicant also alleged “the lot upon which (she) resides as well as the common areas to which she is entitled to have access is accommodation within the meaning of section 4 and section 25 of the DD Act.[59] Additionally she alleged that there has been a contravention of sections 5, 9 and 25 of the DD Act, alleging direct discrimination. She also alleged contravention of sections 6, 9 and 25 of the DD Act. Those allegations were abandoned at the commencement of final addresses. In my view they were properly abandoned by the applicant.

   [59] Points of Claim paragraph 1(e).

Compensation

1. In the event I am in error and the applicant is entitled to relief it is appropriate that I assess damages. 

2. The applicant claims “for compensation in accordance with the Disability Discrimination Act”.[60] The Court’s power to make such an order is founded in section 46PO(4) Human Rights and Equal Opportunity Commission Act 1986 (Cth) and section 15 Federal Magistrates Court Act 1999 (Cth).  The jurisdiction arises once the Court is satisfied there has been unlawful discrimination.

   [60] Statement of Claim paragraph 17(f).

3. The approach to assessing compensation now appears settled.  Generally a cautious approach to assessment is apposite.  It follows an award is to be compensatory.  That means a comparison has to be effected between the position the applicant might have been in, absent the offending conduct, and the situation in which the applicant was placed because of that conduct; Hall v Sheiban Pty Ltd[61].

   [61] (1989) 20 FCR 217 at 239.

4. In this case the applicant has the underlying disabilities of anxiety, depression and Asperger’s syndrome.  Her conditions generally adversely impact upon her life’s enjoyment and amenity.  With one notable exception the applicant has continued to live in the residence despite her differences with the respondent.  For a period of approximately 12 months she lived outside the Park at a refuge and later in rental accommodation in Bundaberg.  For this period she was separated from her family and was significantly dislocated.

5. Upon her return to the Park she lived within the house with her dog.  For approximately two months in 2005 she exercised the dog upon common property.  However save for that time she has not ventured onto the common property with her dog.

6. The presence of the dog has served to ameliorate the effects of her underlying condition.  However because of the respondent’s attitude the applicant has not been able to walk with her dog upon the common property.  Insofar as the applicant has not been able to go walking in the park accompanied by her dog she has suffered a disamenity.  Save for the period when she resided outside the Park that disamenity has continued for approximately 6 years. She also suffered some attendant distress occasioned by the respondent’s refusal to permit her access to the common property.

7. Given the applicant’s reclusive nature the effect of this disamenity has not been significant.  The applicant presented as a person who lacked confidence, was anxious and apprehensive.  These matters appeared to be traits of her personality and not in response to her presence in Court.  While I accept she could have walked with her dog I do not think the respondent’s conduct in opposing her use of the common property occasioned a significant disamenity. 

8. In addition the applicant claims that she had been the subject of abuse on those occasions when she did walk in the Park and on other occasions.[62]  There are clearly issues between the applicant and other residents of the Park.  Those matters have given rise to differences between them.  For instance the applicant’s distress and the views of certain Park members were highlighted by the “dog carrier” sign appended to the Park’s noticeboard.  Although the applicant has been subject to abuse by various individual lot holders there is nothing to suggest that that conduct was a conduct counselled or procured by the respondent.  I do not think the respondent can be held responsible for the abuse directed to her by third parties.

   [62] T 125 Ln 10-35.

9. The applicant seeks $15,000 by way of compensation.  However by reason of the above matters and when regard is had to the comparative cases I consider a sum of $7,500 would constitute an ample compensation.[63]

   [63] In reaching this figure I have had regard to the comparative cases to be found in Federal Discrimination Law Online at

10. In addition the applicant is entitled to interest. Section 76(3) of the Federal Magistrates Act1999 (Cth) provides the applicant is entitled to interest up to judgment although no rate is prescribed. The fixing of an appropriate rate is left to the discretion of the Court.

11. The practice of the Federal Court is to apply the same rate of interest that would be applied in the relevant State or Territory Court rather than the rate prescribed in the Court Rules for post judgment interest; Namol Pty Ltd & Anor v A W Baulderstone Pty Ltd & Ors[64].  As proceedings of this kind cannot be brought in a State Court I consider it is appropriate to be guided by the proscribed rate of post judgment interest which is presently 10.5%; Wattle v Kirklan (No 2)[65].

    [64] (1993) 47 FCR 388.

    [65] [2002] FMCA 135; CCH Australian High Court and Federal Court Practice at 24-948.

12. Although interest rates have fallen markedly in the recent past the rate of 10.5% was appropriate for a significant part of the relevant period.  Given the detriment has occurred uniformly throughout the period it is appropriate to halve the amount of damages under that head by discounting that rate by 50%.[66]  Accordingly interest should be allowed at a rate of 5.25% over six years giving a total of $2,362.50 (rounded to $2370).

    [66] Jackson v Bagwell [1992] 2 Qd R 390 at 390-1.

Costs

1. Each party has applied for costs.  In the result the application has been unsuccessful.  In my view there is no reason why the ordinary orders as to costs should not prevail and the costs follow the event.  On that basis the applicant should pay the respondent’s costs of and incidental to the application to be assessed.  However despite application for costs being made neither party has had the opportunity to argue the matter.  In that event I will allow liberty to apply for either party to be heard further in respect of costs should they not agree that the usual order is appropriate in the circumstances.

Conclusion

1. In summary the applicant seeks relief from alleged discriminatory conduct by the respondent’s enforcement of the by-law which prevents her from accessing Body Corporate services and facilities with her dog.  She claims the dog is an assistance dog trained to alleviate the effects of her disability.  The conduct was alleged to constitute indirect disability discrimination (s.6) or disability discrimination – trained animals (s.9) and was alleged to be unlawful because the respondent had refused to provide the services or make facilities available on the ground of her disability (s.24).  She claims for compensation.

2. I find:

   a)The applicant has a disability as defined under section 4. That disability includes a generalised anxiety disorder and a panic disorder with agoraphobia, access 1, major depressive order (296.33) and access 2, Asperger’s disorder (299.80). She also suffers low grade depression;

   b)The applicant has failed to establish her claim under section 6 because she did not lead evidence of the “comparative group” for the purpose of comparison under section 6(a);

   c)The applicant has failed to establish her claim under section 9 because she has not demonstrated the dog was an assistance animal under section 9(1)(f) being an animal trained to assist her alleviate the effects of her disability;

   d)The respondent’s activities did constitute the provision of services and facilities for the purpose of section 24;

   e)The applicant failed to establish the respondent’s conduct was unlawful pursuant to section 24 as she failed to establish the refusal to provide the applicant with services or make available facilities was on the ground of the applicant’s disability;

   f)If the respondent had acted unlawfully the requirement to permit the applicant access to its services and facilities with an assistance animal trained to alleviate the effects of her disability would not have constituted unjustifiable hardship pursuant to section 24(2);

   g)In the event the applicant had succeeded I assessed her damages at $9870 made up as $7,500 general damages for disamenity and distress together with $2370 Interest to trial.

Orders

1. Application dismissed.

2. Costs reserved.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate:      Bev Schmidt

Date:             1 April 2009

Corrections:

Paragraph 91 amended to read “was an “assistance dog”” in lieu of “as an “assistance dog””.

Paragraph 179 amended to read “There was no suggestion by any witness that a guide dog would be seen to prejudice the park’s “eco” credentials.”

Paragraph 181 amended to read “knowingly of by-law” in lieu of “know of by-law”.

Paragraph 182 amended to read “qualities of unjustifiable hardship” in lieu of “quantities of unjustifiable hardship”.