Sutherland v Tallong Park Association Incorporated

[2006] NSWADT 163

CITATION:	Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Douglas Sutherland RESPONDENT Tallong Park Association Incorporated
FILE NUMBER:	051124
HEARING DATES:	20/03/2006 & 21/03/2006
SUBMISSIONS CLOSED:	03/29/2006
DATE OF DECISION:	06/01/2006
BEFORE:	MacDermott T - Judicial Member; O'Sullivan M - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member
CATCHWORDS:	Disability Discrimination - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Anti-Discrimination Act 1991 (Qld) Co-operative Housing and Starr-Bowkett Societies Act 1998 Co-operatives Act 1992 Equal Opportunity Act 1984 (WA)
CASES CITED:	Australian Iron and Steel Pty Limited v Banovic (1989) 168 CLR 165 Bradley v State of New South Wales (No. 2) [2003] NSWADT 94 C v A [2005] QADT 14 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184 Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13 IW v City of Perth (1997) 191 CLR 1 Jernakoff v WA Softball Association Inc (1999) EOC 92-981 Jordan v Northern Coast Area Health Service (No2) [2005] NSWADT 258 Kimble & Souris v Orr [2003] NSWADT 49 King v Meilman East Pty Limited [2004] NSWADT 46 Kumaran v Rail Infrastructure Corporation [2005] NSWADTAP 41 Strong v The Hospitals Contribution Fund of Australia Limited [2004] NSWADT 176 Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83 Waters v Public Transport Corporation (1991) 173 CLR 349 Wollongong City Council v Bonella [2002] NSWADTAP 26 Woods v Wollongong City Council (1993) EOC 92-486
REPRESENTATION:	APPLICANT LT Grey, barrister RESPONDENT VRW Gray, barrister
ORDERS:	The complaint of disability discrimination in the provision of goods and services is substantiated; The following directions are made:; (1) The Applicant file and serve any evidence and submissions on the question of appropriate relief within 21 days of this decision; (2) The Respondent file and serve any evidence and submissions on the question of appropriate relief in reply within a further 21 days ; (3) Matter to be listed for hearing on a date to be fixed by the Registrar

Introduction

1 These proceedings arise out of a complaint of disability discrimination lodged by Mr Sutherland with the Anti-Discrimination Board on 21 April 2005 alleging a breach of the Anti-Discrimination Act 1977 (the AD Act). His complaint concerns access to the swimming pool that is located on the common areas within a residential development known as the Tallong Park Estate. The estate is made up of 169 lots, as well as the common areas reserved for open space and recreational use.

2 Mr Sutherland’s complaint is that the Respondent, the Tallong Park Association Incorporated (the Association) has prevented him from driving his vehicle to the area where the swimming pool is located, and from parking in an area proximate to the pool. He claims that in order to access the pool facilities he is required to park in the main car park and traverse approximately 75 metres to the pool, which he cannot do because of his disability. The common areas, on which the pool is located, are controlled and managed by the Association.

3 Any purchaser of a Lot within the estate is required to become a member of the Association and to pay levies as determined by the Association. The Association’s activities are conducted in accordance with its Constitution and By-laws through its management committee, elected each year at its annual general meeting.

4 The main issues in these proceedings are as follows:

1. Does the exception in s57 of the AD Act apply?

2. Does the alleged unlawful conduct come within the coverage of providing goods or services, or relate to a benefit associated with accommodation?

3. Has the Respondent directly and/or indirectly discriminated against the Applicant?

4. Has the Respondent established the defence of unjustifiable hardship?

5 Counsel for the Applicant prepared for the Tribunal an outline of undisputed, disputed and not admitted facts, as well as additional facts alleged by the Respondent, which was handed up on the first day of the hearing. This document draws on the Applicant’s amended Points of Claim and the Respondent’s Points of Defence. There was some confusion regarding the filing of the Respondent’s material, as no material, other than the documents produced under subpoena, were received by the Tribunal prior to the hearing dates. The Tribunal relied on copies of the Points of Defence and the Respondent’s written statements that were handed up on the first day of the hearing. Subsequent to the hearing it became apparent that the Respondent had posted its material to an incorrect address in the week preceding the hearing.

6 The report of the President of the Anti-discrimination Board was tendered without objection (Exhibit 1). The Applicant tendered as a bundle a number of statements from himself, a statement by his partner, Ms Feodosieff, as well as other statements, a number of medical reports, and other documentation relating to the proceedings (Exhibit 4). Mr Sutherland and Ms Feodosieff each gave oral evidence and was cross-examined. The Respondent tendered as a bundle 27 statements from residents of the estate and persons associated with the Respondent (Exhibit A). Only Mr McDonald, Mrs Thatcher and Mr Tipping were required for cross-examination.

7 The Applicant’s disabilities. The applicant’s disabilities were not in dispute in these proceedings. Mr Sutherland contracted polio as a teenager in the 1950s. He has a mobility impairment, as a result of which he has difficulty walking, except for short distances. He requires leg callipers and a cane. Mr Sutherland has never been wheelchair dependent, and made very clear in his evidence that he values highly his independence and his limited mobility. Mr Sutherland also has Post-Polio Syndrome, which makes it painful for him to stand and walk, affects his balance, and necessitates medication for pain. Swimming has been recommended by the Applicant’s doctor as an appropriate form of exercise for Mr Sutherland’s disabilities. Mr Sutherland also suffers from diabetes.

8 Purchase at Tallong Park Estate. In 1989 Croydon Park Service Station Pty Ltd purchased Lot 2 at Tallong Park Estate. Mr Sutherland is a principal shareholder of this company. Mr Sutherland indicated that at the time of the purchase he was attracted to the proposed pool facilities, and timed the construction of his dwelling on Lot 2 to coincide with the completion of the swimming pool in or about 1998-99. Mr Sutherland remained resident and employed in Sydney, and used his residence at Tallong Park Estate for extended weekends. After the pool was completed Mr Sutherland did not use the pool for sometime as he was in dispute with the Respondent’s management committee over signing a waiver of liability regarding use of the pool. This was resolved by approximately 2000, and the Applicant began using the pool.

9 Applicant’s access to the pool facilities. Mr Sutherland claimed that from the time the pool facilities were open he drove his car from the main car parking area up to the swimming pool building and parked nearby. Ms Feodosieff gave evidence that she had done the same. The Respondent submitted that there was never an “access driveway”, but there was instead a “gravel pedestrian pathway left over when the pool was constructed,” but that this was never intended or designated as vehicle access. The Respondent also disputed that there was a “small parking area,” but indicated that there was a “ground surfaced with uncompacted gravel.” Part of the difference between these accounts is in the language used to describe the path/ driveway and the area next to the pool complex. Counsel for the Respondent submitted that while the Respondent had no direct knowledge of whether Mr Sutherland drove his car and parked at the pool complex, it could not say that he never did or that it was impossible to do.

10 A number of written statements filed by the Respondent denied that it was ever possible to drive to the pool complex and park nearby. However, other written statements filed by the Respondent, such as the statements of Mr Peter O’Shaughnessy and Mr Bernard Friend, acknowledge the possibility of informal vehicle access to the pool, particularly during the construction period of the pool when temporary access was made available. The written statement of Mr Doug Tipping also indicated that access was possible during the construction period, although under cross-examination Mr Tipping claimed that his statement was not correct in this respect. Informal vehicle access during a limited period was referred to in an undated letter from Mr G Seckold, Secretary of the Respondent, which appears to have been faxed to Mr Sutherland on 18 January 2005. On the basis of the evidence presented, the Tribunal finds as a matter of fact that Mr Sutherland did for some period after the pool was opened, until approximately spring 2003, access the pool facilities by driving his car from the main car park to an area next to the swimming pool building where he parked his car, although this was not an authorised means of access or a designated car park.

11 Access following the re-opening of the pool in Spring 2003. The Applicant contended that, when he sought to resume swimming in spring 2003 after the pool was closed for winter, that a timber railing blocked his vehicular access from the main car park. The Respondent claimed that at this time the natural wood barriers bordering the car park were replaced with new barriers, spaced to allow pedestrian access to the pedestrian walkway to the swimming pool. The Respondent also claimed that as there was no prior authorised vehicular access, there was no question of it being blocked.

12 It is not disputed that from spring 2003, in order for Mr Sutherland to access the pool it was necessary for him to leave his car in the main car park and traverse a distance of approximately 75 metres to reach the pool building. It was not disputed that the Applicant attempted to walk this distance to the pool, with the help of his partner, but found it too difficult and painful and therefore ceased using the pool.

13 Subsequent Events. The Applicant and his partner made several representations to the Respondent’s management committee about the issue of access. Ms Feodosieff raised the issue of vehicle access in a letter to the Respondent dated 24 October 2003. The minutes of two consecutive meetings of the Respondent’s management committee held in November 2003 record correspondence from Ms Feodosieff, one being identified as a letter concerning the path and parking area for the pool. The Respondent replied in a letter dated 17 December 2003, indicating that the Respondent was putting in a cement path wide enough for wheelchair access, and that it had decided that a parking area next to the pool building would not be constructed. The Applicant and Ms Feodosieff denied receiving this response.

14 In early 2004 a new coloured concrete path was installed in the area of the gravel track or “driveway.” The Applicant claimed this made it more difficult to reinstate access along the “driveway” to the “car park” beside the pool. The Respondent does not dispute that it installed the new pedestrian path, but denied that installing the path made it difficult to re-instate access.

15 The Applicant claimed that subsequent representations to members of Respondent’s management committee by the Applicant and his partner regarding vehicular access were met by comments that he should get a wheelchair and that the Applicant’s partner should build up her muscles to wheel him. These comments were attributed to a conversation between the Applicant and his partner and Mr and Mrs Tipping at the Applicant’s residence after the adjourned annual general meeting in December 2004, although no precise date was given. In his oral evidence, Mr Tipping said he raised the subject of a wheelchair himself, and said words to the effect that we all may need it shortly. He indicated that he was at Mr Sutherland’s residence at the time as a visitor, and was not on the committee at the time. The Minutes of the meetings of the Respondent’s management committee record Mr Tipping as Vice-president of the Committee during 2004, but he is not recorded as a member of the committee in the minutes for the first committee meeting of 2005 (7 January 2005). We find that Mr Tipping made comments regarding use of a wheelchair to Mr Sutherland in December 2004, but it was not established that these comments were made on behalf of the Respondent.

16 Ms Feodosieff made a further attempt to raise the issue of vehicle access at an adjourned annual general meeting of the Association in January 2005, but was refused permission to speak further on the subject. The Respondent asserts that the Association’s Constitution did not allow the matter to be raised by Ms Feodosieff as she was not member of the Association, nor the authorised representative of a corporate member.

17 During the course of these proceedings, the Tribunal was shown a short DVD. The DVD was prepared by Ms Feodosieff on 23 October 2005, and showed some of the layout, features and facilities of the Tallong Park Estate. Various photos and drawings of parts of the Estate were also tendered during the proceedings.

Period of the complaint

18 The Applicant lodged his complaint with the Anti-Discrimination Board on 21 April 2005. A letter to the Respondent from the Anti-Discrimination Board dated 2 May 2005 identified the relevant period of the complaint as 22 April 2004 to 21 April 2005. On 2 May 2005 amendments to the AD Act came into effect. An important change brought about by the amendments is that pursuant to s 89B the President of the Anti-discrimination Board may decline a complaint if “the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint.” This changed the previous requirement that the alleged unlawful conduct had to have occurred in the six months prior to the complaint, unless the President consented to the lodging of the complaint out of time.

19 The parties were asked to indicate what in their view was the relevant period of the complaint. Each produced a short written submission on this point after the hearing. In Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83 at [20] the Tribunal found that:

The intention of the legislature is that the new procedural regime should apply to part-heard cases because Part 5 of Schedule 1 to the Act stipulates that the amendments effected by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 apply to proceedings not finalised on the date of the commencement of the Amendment Act.

20 Taking into account these provisions and the submissions of the parties, we regard the relevant period of the complaint as being the period from 22 April 2004 to 21 April 2005. However, material from outside this period may be relevant to determining the complaint (Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13).

Section 57

21 The Respondent relies on the exception contained in s 57 of the AD Act. In this respect, the Respondent bears the onus of proof (s109). Section 57 states that:

(1) In this section, "body" means a body, the activities of which are carried on otherwise than for profit and which is not established by an Act, but does not include:
(a) a co-operative registered under the Co-operatives Act 1992 or a society under the Friendly Societies Act 1989 , or

(b) a friendly society registered under the Friendly Societies Act 1989, or

(c) a building society or credit union registered under the Financial Institutions (NSW) Code, or

(d) a co-operative housing society registered under the Co-operative Housing and Starr-Bowkett Societies Act 1998, or

(e) a registered club.

(2) Nothing in this Act affects:
(a) any rule or practice of a body which restricts admission to membership of that body, or

(b) the provision of benefits, facilities or services to members of that body.

22 There are three criteria that must be satisfied to come within the terms of s 57(1). First, the activities of the body must be carried on “otherwise than for profit.” The second criterion is that the body must not be established by an Act; and thirdly the body must not come within the bodies specified in s 57(1)(a)–(e) that are excluded from relying on s 57.

23 It was not disputed that the Respondent is not a body specified in s 57(1)(a)–(e). The Applicant also accepted that the Respondent “is not established by an Act.”

24 The Applicant submitted that, although the purpose of the Association is not to make a profit, in determining whether the Respondent comes within the terms of s 57 (1) regard should be had to a range of factors. The Applicant relied on the decision in Strong v The Hospitals Contribution Fund of Australia Limited [2004] NSWADT 176, where the significant commercial scale on which HCF operates led to a finding that it was not the type of body “Parliament intended to identify when it used the term ‘operating otherwise than for profit’ as a short-hand means of describing bodies that are excepted from the AD Act to some extent by s57”(at [102]). The Applicant submitted that although the Respondent’s operations are not of the same scale as HCF, it is not a small private concern such as a sporting club or charity, and oversees a large area of common land, controls the activities of a large number of people through its Constitution and by-laws, and employees a number of people.

25 The Applicant also submitted that the Respondent is not the type of voluntary association whose rights to freedom of assembly needed to be protected, because of its mandatory membership requirement for all registered proprietors of Lots on the estate. Finally, the Applicant drew an analogy between the functions and operations between the Respondent and owners corporations established under the Strata Schemes Management Act 1996 (NSW) and community associations established under the Community Land Development Act 1989 (NSW). The Applicant submitted that the latter two entities fell outside the exception in s 57 as they are “established by an Act.”

26 In Strong the Tribunal set out a test for determining whether a body comes with the term “carried on otherwise than for profit,” stating at paragraph 108 that:

…in our view the term ‘carried on otherwise than for profit’ does not identify a body by reference to its actual financial results each year. It identifies a body by reference to its character. Whether it has a profit or a loss, and whether it calls a profit a surplus and a loss a deficit, the question is “what is it its character? Does it have the character of a relatively small voluntary body, the activities of which could be carried on by an unincorporated association of people for purposes of pursing a common interest? The exception provided for in s 57 is, in our view, directed towards such bodies, and that it is bodies with that character that are identified by the term ‘carried on otherwise than for profit’.

27 The Respondent filed two written statements of James Crestani, a chartered accountant associated with the Respondent, dated 8 March 2006. He states “the Association functioned as the controlling body of the Tallong Park Estate in the same way as a body corporate functions as the controlling body of a strata unit development”. We regard this as an accurate description of the functions performed by the Respondent.

28 In Strong the Tribunal (at [103]) also identified the rationale for the exception as follows:

The intention of an exception such as that in s 57 is as was said in Gardner [ Gardner v AANA Ltd (2003) FMCA 8] at paragraph 12
to protect the right of freedom of assembly so that a voluntary organisation could chose those persons it wished to be members and deal with those members in any manner that the members agreed, whether or not those activities might appear to persons who are not members of the association to be discriminatory.

29 Clause 4 of the Constitution of the Tallong Park Association Incorporated sets out the membership qualifications. It provides that “Association members shall be those persons who become registered as proprietors” of any allotment. Association members are prohibited from assigning any membership right or obligation “otherwise than concurrently with registration of a transfer of an allotment”. Clause 4 requires a purchaser of a Lot in the Estate to execute an application for membership, as set out in the Constitution, and to deliver this to the Association on or before the date on which that person becomes the registered proprietor. The membership application form includes a clause that the person agrees to include in any contract of sale of their allotment a condition requiring the purchaser to become a member of the Association and requiring the purchaser to execute a membership application form. The Constitution also provides that:

4. 4. An Association member shall not resign from the Association and shall continue to be bound by the rules thereof for so long as they are the registered proprietors of an allotment.

30 In answer to the question, “does the Respondent have the character of a relatively small voluntary body the activities of which could be carried on by an unincorporated association of people for purposes of pursing a common interest;” we consider the answer to be “No”. Its functions are akin to a body corporate in that it manages, cares for, and controls the common areas of the estate. The Respondent owns these common areas. Its operations are such that the Balance Sheet for the Respondent as at 30 June 2005 recorded its net assets as $1,061,854.23, of which $186,100.58 was described as “retained profits”. Membership of the Respondent is clearly tied to ownership of Lots within the estate. A purchaser of a Lot cannot choose not to become a member of the Association. Nor is there any discretion as to whether the Association can chose particular persons to be members. In this sense, the respondent is not a voluntary body.

31 Taking into account the nature of the Respondent’s operations and the manner in which its membership is regulated, we are of the view that the Respondent is not the type of body that comes within the term “operating otherwise than for profit.” Therefore, it is not a body that is excepted from certain operations of the AD Act within the terms of s 57.

32 However, even if the Respondent came within s 57 (1), we find that the alleged discriminatory conduct does not come within the exceptions provided in s 57 (2) of the AD Act. Section 57 (2) excepts from the operation of the AD Act “any rule or practice of a body which restricts admission to membership of that body” or “the provision of benefits, facilities or services to members of that body.” The conduct complained of is access to the swimming pool facilities. This is not a rule or practice that restricts admission to membership within the terms of s 57(2)(a) (see Strong at [30]).

33 As far as “the provision of benefits, facilities or services to members of that body” is concerned, the issue of access to the swimming pool facilities does come within the provision of benefits, facilities or services, but the exception only applies in relation to members. The criterion for membership of the Respondent is being the registered proprietor of a Lot. The Constitution creates other categories, including associate members, where a person is the lessee of an allotment of an Association member (Cl.19). There is also a category of occupiers. These are persons who usually reside on an allotment but are not Association members or associate members, and are deemed to be the guest of the Association member or associate member with whom the occupant usually resides (Cl.20).

34 The Respondent’s Points of Defence specifically stated that the Applicant is not a member of the Association, but an occupier under the Association’s rules. However, in a letter sent by the Applicant to the Anti-Discrimination Board, received by the Board on 21 April 2005, the Applicant stated that he had been discriminated against by the management committee of Tallong Park Estate Association Inc “of which I am a member”.

35 The register of members was produced, which included reference to “Croydon Park Service Stn. Pty Ltd. (Doug Sutherland).” The Applicant purchased a Lot in the Estate through a corporate entity, namely Croydon Park Service Station Pty Ltd. The constitution of the Association specifically makes provision for the appointment of a representative of a corporate member. The Applicant’s description of himself as a member in his letter to the Anti-Discrimination Board is not an accurate representation of his position. Croydon Park Service Station Pty Ltd is the registered proprietor, and is therefore the Association member. Having regard to all the evidence, we find that Mr Sutherland is not a member of the Association, and that his position is that of an occupier. Therefore s 57(2)(b) does not apply.

36 We find that the Respondent does not come within the terms of the exception in s 57.

Does the alleged unlawful conduct of the Respondent come within the coverage of the AD Act?

37 The Applicant alleges discrimination in the provision of goods and services, as set out in s 49M of the AD Act. In addition, he claims that the Respondent has discriminated against him in the provision of access to a benefit associated with accommodation occupied by him within the terms of s 49N(2) of the AD Act.

Provision of Services

38 Section 49M of the AD Act states that:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:
(a) by refusing to provide the person with those goods or services, or

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

39 Section 4 of the AD Act provides:

"services" includes:
(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b) services relating to entertainment, recreation or refreshment,

(c) services relating to transport or travel,

(d) services of any profession or trade,

(e) services provided by a council or public authority,

(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

40 The definition in the AD Act is non-exhaustive. The interpretation of the term “services” has been an issue in a wide range of cases. The prevailing approach has been to interpret that term broadly, and to give the term its ordinary meaning (IW v City of Perth (1997) 191 CLR 1at 12 and 23). It is necessary to identify with some precision the relevant service, in order to be able to determine whether there has been discrimination in the terms on which the service is provided. Identifying the relevant service is a question of fact (Waters v Public Transport Corporation (1991) 173 CLR 349 per McHugh J at 404).

Does the Respondent provide any relevant service?

41 The Applicant submitted that the Respondent does provide services, including services relating to recreation as set out in paragraph (b) of the definition of services. The Applicant alleges that the Respondent has discriminated against him in the terms on which it provides the services within s 49M(1)(b).

42 The Respondent submitted that s 4 deliberately distinguishes between services relating to recreation and services consisting of access to and use of facilities. Therefore, in its submission the concept of recreation (for example swimming) and the service of providing access to a pool are distinct. Given the broad approach taken by the courts to the term “services” and its inclusive statutory definition, we do not find it necessary to interpret each paragraph within the definition of “services” as impliedly limited by any other paragraph in the definition.

43 The Constitution of the Association (dated 2003) sets out a number of Objects for the Association. These objects make clear that a primary responsibility of the Association is to manage, care for, and control the common areas. Pursuant to Clause 1.1 of the Constitution, the common areas are designated as being owned by the Association. The common areas are referred to in the interpretation section as those allotments reserved for open space and recreational use, and as where the recreational, sporting, parking, gardens and leisure facilities are located.

44 As referred to earlier, the Respondent functions in a similar manner to a body corporate for a strata unit development. The financial records of the Respondent indicate that a significant amount of its resources are expended on maintaining the sporting and recreational facilities. The financial records for the period 1 July 2004 to 28 February 2006 record expenditure by the Respondent of $25,584.50 on the swimming pool, $544.09 on the tennis court, and $37,265.71 on the golf facilities. The Respondent also controls the means of access to such facilities, such as the paths leading to the facilities and the parking.

45 In IW v City of Perth, the High Court was required to consider whether a local council provided services when exercising its discretion to grant or withhold planning approval. While acknowledging that the Respondent is in not in the same position as a Council, observations by Brennan CJ and McHugh J suggest that allowing use of property or facilities such as parks and sporting facilities owned or under the control of an entity may constitute “services’ within the ordinary meaning of the word. Brennan CJ and McHugh J at p 12 stated:

…in an appropriate case allowing the use of property or facilities owned by or under the control of the Council may constitute the provision of a service by that Council. Providing use of libraries, parks and sporting facilities, for example, may constitute the provision of a service which attracts the operation of the Act.

46 Counsel for the Applicant relied on C v A [2005] QADT 14, a decision of the Anti-Discrimination Tribunal of Queensland, the facts of which have some parallels to the circumstances before us. Among other issues, C v A involved the interpretation of “services” in the Anti-Discrimination Act 1991 (Qld). C was a resident who brought proceedings against the body corporate for the residential building where she resided on a part-time basis. C had a condition that affected her vision, her ability to walk, her breathing and her hearing. She used a motorised wheelchair. Her complaint was that she could not travel independently between her apartment and the street frontage, or around the pool areas, due to various locking devices installed, which she was unable to operate because of her disabilities. The Tribunal found that the body corporate did provide a service within the terms of the Anti-discrimination Act 1991 (Qld):

“Services” as a term is defined in the Dictionary Schedule to the Act, and includes “ recreation.” The definition is not a happy one. Despite its inelegance, in my view the proper construction of “services” must include the provision and maintenance of (and access to) such facilities as the pool area (a recreational area) within the residential building.

47 There are few cases in which the courts have considered the meaning of services relating to recreation. In Jernakoff v WA Softball Association Inc (1999) EOC 92-981 the Equal Opportunity Tribunal of Western Australia examined whether the WA Softball Association provided services within the meaning of the Equal Opportunity Act 1984 (WA). In concluding that the Association did provide services within the broad meaning of that term, the Tribunal commented on the phrase “services relating to recreation”. It stated:

In Ross & Ors v University of Melbourne (1990) EOC 92-290 a question arose as to whether a smaller light–weight room managed by the sports union of the University and made available for the exclusive use of women during certain hours was a service that was being provided in a discriminatory manner. The Tribunal held that this fell within the concept of a recreation service. The fact that those involved in the use of the equipment and facilities of the room may also have been involved in a sport did not mean that there was not a recreation component. Even if this were not so the definition of services was not exclusive. The provision of the equipment within the sports union facilities was a service that, whether or not it came within a specific definition, could be seen to be within the range of activities intended to be covered within the definition of services.

48 In accordance with the prevailing approach of construing the term “services” broadly, and taking into account all the evidence, we find that the Respondent does provide a service within s 4. The Respondent is providing a service, which we identify as providing recreational, sporting, and leisure facilities on the common areas. We find that the service provided by the Respondent comes within paragraph (b) of the definition of services, as services relating to recreation. In addition, the service also comes within the ordinary meaning of the term “services” in s 4.

Does the Respondent provide a service to the Applicant?

49 The Respondent disputed that the Applicant had standing to bring these proceedings on the basis that he is not a member of the Association and that the Association has no obligation to provide any particular benefits, facilities or services to non-members.

50 Although the Respondent manages and cares for the common areas on behalf of members, we find that it provides the service to all those who have a right to use the common areas and the facilities located on those areas. The Association’s Constitution defines the status of various persons that have a relationship with the Respondent, with certain rights attached. Under the Constitution an Associate member is entitled to “use the common areas in accordance with the rules and by-laws, including the right to invite guests onto the common areas”(Cl 19.2). An occupier is entitled to “be upon and use the land,” subject to the by-laws (Cl. 20.1). Our interpretation of these clauses is that Association members, associate members and occupiers are all entitled to use the common areas, including the sporting and recreational facilities on these areas.

51 By their terms, the by-laws of the Association apply to “all users of the common areas used and operated by the Association and to all members, associate members, occupiers and guests” (By-law 1.1). By-law 2.1 deals with use of the swimming pool, and provides that “guests other than occupiers may not use the swimming pool unless accompanied by the inviting member”.

52 Having taken into account all the evidence, we find that the service the Respondent provides is not limited to members of the Association, and that it provides that service to the Applicant in his capacity as an occupier.

53 We find that the Applicant has standing to bring these proceedings. He is an “aggrieved person" within the terms of the AD Act, being the person with the relevant disability, and the person to whom the service is provided on terms that are alleged to be discriminatory (IW v City of Perth (1997) 191 CLR 1).

Accommodation

54 The Applicant claims that by denying him vehicle access to the pool complex, the Respondent has discriminated against him in the provision of access to a benefit associated with accommodation occupied by him within the terms of s 49N(2) of the AD Act.

55 49N(2) provides that:

It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability:
(a) by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person.

56 In other proceedings, the Tribunal has made clear that in the context of accommodation, in order for the alleged discriminatory conduct to come within the AD Act, the relevant conduct must arise between the Applicant and the Respondent in circumstances where the Respondent is either participating as principal or agent (King v Meilman East Pty Limited [2004] NSWADT 46 at [66]; Kimble & Souris v Orr [2003] NSWADT 49 at [ 51]). Croydon Park Service Station Pty Ltd provides the accommodation the Applicant occupies. Any complaint about limiting access to any benefit associated with his accommodation must therefore arise in the context of a relationship between Croydon Park Service Station Pty Ltd, as the registered proprietor, and Mr Sutherland as the occupier of those premises. The Respondent is not acting as principal or agent in the provision of the accommodation. We find that s 49N (2) is not applicable to the accommodation arrangements of the Applicant.

Has the Respondent discriminated against the Applicant?

57 The Applicant alleges he has been discriminated against by the Respondent in the terms on which the Respondent provides services to him in breach of s 49M (1)(b). The Applicant alleges both direct and indirect discrimination in the provision of the service.

Direct discrimination

58 In paragraph 21of the Applicant’s amended Points of Claim the allegations of direct discrimination are presented as:

(a) the Respondent treats the Applicant less favourably than it treats persons who are members of the Respondent, or who otherwise have a right to occupy lots at Tallong Park Estate, who do not have that disability, by
(i) providing recreational facilities and service for such persons who do not have the disability suffered by the applicant, which facilities and services are part funded by the levies paid by CPSS [Croydon Park Service Station Pty Ltd] for the benefit of the Applicant; and

(ii) refusing to provide or reinstate, appropriate access for the applicant to the one recreational facility and service of use or benefit to the Applicant, namely the swimming pool.

59 The two components of direct discrimination are differential treatment and causation (Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5). The first consideration is whether the Applicant has been treated less favourably. In determining whether he has been treated less favourably a comparison is made with the treatment of a person without the Applicant’s disability in the same or similar circumstances. Depending on the circumstances, the comparator may be a real or a hypothetical person. If less favourable treatment is established, it is then a question of whether that treatment is causally connected to the prohibited ground.

60 Counsel for the Applicant submitted that if you provide facilities to a body of people and provide them on the same basis to everyone, and do not take into account that all those persons do not have the same capacity, then you have discriminated in the sense of having treated those persons with a reduced capacity to use the facilities less favourably. This was particularly so where a person such as the Applicant could not use the other facilities, such as tennis or golf facilities, because of his acknowledged disability, but was contributing to the maintenance of these facilities through the payment of the standard levy.

61 We find that the Applicant has not established that there was any less favourable treatment of the Applicant within the terms of s 49B(1)(a). Direct discrimination requires a comparison of the treatment of the Applicant and the treatment of a person without the Applicant’s disability in the same or similar circumstances. No actual comparator was identified. Therefore we rely on a hypothetical comparator. If we compare the way in which the recreational facilities were made available to the Applicant with the way in which the same facilities were made available to a hypothetical person resident on the estate who does not have the Applicant’s disability, the treatment is the same. In order to access the pool facilities both the Applicant and the hypothetical comparator must traverse 75 metres from the main car park to the pool facilities. The pool facilities are provided on the same basis to all persons who have the right to use the facilities. The provision of the service does not differentiate between those with a disability such as the Applicant’s, and those without a disability. As no less favourable treatment is established it is not necessary to consider the issue of causation.

62 The Applicant also claims to have been directly discriminated against on the basis of the Respondent’s refusal to provide or reinstate appropriate access for him to the one recreational facility and service of use or benefit to him, namely the swimming pool. For this treatment to come within the terms of direct discrimination it would be necessary to show that the Applicant was treated less favourably than a person without his disability, where that person was seeking appropriate access to the swimming pool. No specific evidence was led on how an actual or hypothetical person might have been treated in seeking appropriate access to the pool, or what that “appropriate access” might be. We find that the Applicant has not established that he was subject to direct discrimination in this regard.

Indirect discrimination

63 In paragraph 21 of the Applicant’s amended Points of Claim the allegations of indirect discrimination are presented as follows:

(b) the Respondent is by its conduct forcing the Applicant to comply with a requirement or condition with which a substantially higher proportion of persons, who are members of the Respondent or who otherwise have a right to reside at Tallong Park Estate and who do not have that disability, comply or are able to comply, namely the requirement to traverse a pedestrian pathway from the main car parking area a distance of approximately 75 metres to the pool, being a requirement –
(i) with which the Applicant is not able to comply without the assistance of another person and a wheelchair; and

(ii) which is not reasonable having regard to the circumstances of this case, because-

(A) until the driveway was blocked in 2003 at the direction of the management committee of the Respondent, the Applicant had been able to drive himself to an area adjacent to the pool, and then enter the pool, without assistance from any other person;

(B) it requires the Applicant to make use of the assistance of another person and the use of a wheelchair or other conveyance to travel the distance from the main car park to the pool, when he is not medically dependent on either a carer or a wheelchair.

64 In order to establish indirect discrimination within the terms of s 49B (1)(b) of the AD Act the Applicant must prove that:

- the Respondent imposed a “requirement or condition” and

- the applicant was unable to comply with that requirement or condition; and

- a substantially higher proportion of persons without the Applicant’s disability comply or are able to comply with that requirement or condition; and

- the requirement or condition is not reasonable having regard to the circumstances of the case.

65 The phrase “requirement or condition” has been interpreted broadly (Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165; Waters & Ors v Public Transport Corporation (1991) 173 CLR 349). The requirement or condition need not be expressed or reduced to writing, as long as it operates in a practical sense as a form of pre-requisite or threshold criterion that the complainant must satisfy.

66 The Applicant identified the relevant requirement or condition as “the requirement to traverse a pedestrian pathway from the main car parking area a distance of approximately 75 metres to the pool”. The Respondent submitted that turning up at the facilities is not a requirement or condition, but a necessary pre-requisite to taking advantage of the facilities at that location.

67 The Respondent made it clear in all its dealings and communications with the Applicant that in order to use the pool facilities, Mr Sutherland, as with other users of the pool, needed to access the pool by traversing the path from the main car park to the pool and that it would not take any action to facilitate other means of access. We find that the Respondent imposed a requirement that in order to use the pool facilities, a person must traverse a pedestrian pathway from the main car parking area a distance of approximately 75 metres to the pool. As this was the only basis on which the pool facilities were made available it amounts to a term on which the service was provided. The Applicant was originally denied access in Spring 2003. The Respondent continued to impose this requirement on an on-going basis. We find that the requirement was operative in the period 22 April 2004 to 21 April 2005.

Applicant’s inability to comply

68 In his written statement and oral evidence the Applicant asserted that he could not walk the distance required from the main car park to the pool area. Although the Respondent did not dispute that he could not walk this distance, the Respondent suggested that Mr Sutherland could cover the distance required between the car park and the pool facilities if he used a wheelchair or some other device to convey him the required distance.

69 The question of the Applicant’s inability to comply is judged in a practical rather than a technical sense. It includes a situation where the “applicant is not able to comply without suffering some appreciable disadvantage or detriment” (Bradley v State of New South Wales (No. 2) [2003] NSWADT 94, at [53]). Mr Sutherland’s inability to comply is not to be judged on the basis of whether he could comply by using some particular aid or other assistance (Woods v Wollongong City Council (1993) EOC 92-486). Mr Sutherland’s mobility impairment does not require him to use a wheelchair or other mode of transport. He has steadfastly maintained his independence, and indicated clearly his desire to remain independent. He stated that his doctors want him to stay as active as possible. He should not be judged as able to comply with the requirement merely because he could do so if he used a wheelchair. On the evidence before us we are satisfied that the Applicant could not comply with the requirement imposed.

Rate of compliance

70 The next question is whether a substantially higher proportion of persons without the Applicant’s disability comply or are able to comply with the requirement. A number of steps are involved in this process (Wollongong City Council v Bonella [2002] NSWADTAP 26). First is the identification of the relevant base group or pool of people to whom the requirement applies. The group of people to whom the requirement is directed are the persons who have a right to use the pool facilities. The Applicant identified this group as the members of the Association and others who reside on the Estate, but did not provide a specific figure. The next issue is identifying those within that group who do not have Mr Sutherland’s disability, and who could comply with the requirement. No statistical evidence was provided on this point. Nor was there any specific evidence presented about those within the group with Mr Sutherland’s disability who could comply with the requirement.

71 A few statements filed by the Respondent referred to the physical disabilities of residents of the estate, or to taking family members with a disability who used a wheelchair along the path to the pool facilities without difficulty. A statement by DKW Jones, a resident of Tallong Park, filed by the Respondent on 16 March 2006 indicated that that person could only stand or walk for 3 or 4 minutes at a time before resting, and used a wheelchair or scooter to travel along the footpath leading to the pool. There was no reference to anyone with the same mobility impairment as Mr Sutherland in circumstances where, like Mr Sutherland, the person did not use a wheelchair.

72 Despite the lack of statistical evidence, we find that a substantially higher proportion of persons without Mr Sutherland’s disability are able to comply with the requirement. In coming to that view, we accept that it is common knowledge that people without Mr Sutherland’s particular mobility impairment would have substantially less difficulty complying with the requirement than those with a mobility impairment of the nature of Mr Sutherland’s (Kumaran v Rail Infrastructure Corporation [2005] NSWADTAP 41; Jordan v Northern Coast Area Health Service (No2) [2005] NSWADT 258).

Reasonableness

73 The onus is on the Applicant to show that the requirement is not reasonable having regard to all the circumstances of the case. The test of reasonableness was set out in Gardiner v WorkCover Authority of New South Wales (EOD) [2004] NSWADTAP 1 at [36] as follows:

The Tribunal is required to balance the nature and extent of the discriminatory effect of the requirement against:
The reasons for the requirement including any commercial considerations;

Whether the requirement is appropriate and adapted to its purpose and has a logical and understandable basis; and

Whether there is a less discriminatory option, including any accommodation of the needs of the aggrieved person and the possibility of alternative action which would achieve the object of the condition and be less discriminatory.

74 The nature and extent of the discriminatory effect. The nature and extent of the discriminatory effect of the requirement on Mr Sutherland is that he has been unable to use the pool facilities at Tallong Park Estate since spring 2003. Mr Sutherland indicated his attempts to walk the distance proved too difficult, and that he was not prepared to purchase a wheelchair to undertake this activity when he did not require it for any other purpose. The medical reports filed by the Applicant indicate that swimming has been recommended as an appropriate form of exercise for Mr Sutherland. The Respondent admitted in its Points of Defence that swimming is an important contributor to the maintenance of the Applicant’s quality of life, but did not admit that it is “imperative”.

75 The reasons for the requirement including any commercial considerations. A summary of the reasons advanced by the Respondent are set out in an undated letter from the Mr G Seckold, Secretary of the Respondent, which appears to have been faxed to Mr Sutherland on 18 January 2005. The predominate reason advanced was the view that the Respondent had satisfied its obligations with respect to disabled parking and access, with two designated disabled parking spots in the main car park and a sealed pathway to the pool. Other factors mentioned included that providing parking proximate to the pool might expose the Respondent to public liability issues such as damage to vehicles from wayward golf shots and possible injury to children and adults. The Respondent expressed its concerned that parking proximate to the pool would necessitate driving along or across the first fairway, causing inconvenience to players and raising potential liability concerns.

76 On the basis of the evidence before us, we find that the Respondent’s position in relation to the imposition of the requirement was influenced by the view that if Mr Sutherland was having difficulty walking the distance to the pool, he should use a wheelchair or some other device. The Respondent’s Counsel put to Mr Sutherland that the consequence of his determination not to use a wheelchair was the imposition on the Association of a responsibility to provide access to suit his personal needs, at the expense of Association members. Further, that at some time he would have to face the reality that he will need more artificial aids in relation to stability and mobility then presently required. Counsel for the Respondent submitted that it was not unreasonable to resisted Mr Sutherland’s claim in these circumstances.

77 As we have indicated earlier, the Applicant’s disability did not require him to use a wheelchair in any other circumstances. In addition, we have found that he did in fact for some time prior to Spring 2003 access the pool facilities by driving his car from the main car park to an area next to the swimming pool building, although this was not an authorised means of access or a designated car park. In our view, it was incumbent on the Respondent in these circumstances to do more than indicate that there is a sealed wheelchair path to the pool.

78 A further reason that appears to have influenced the Respondent is the view that it should not have to pay for something that it perceived would be of benefit only to the Applicant. This is reflected in the written statement of Mr McDonald (President of the Association from December 2003 to December 2005, and a member of the management committee of the Association at other times). He states it would be “unfair to burden 168 other private lot owners” with the cost of the facilities sought by the Applicant. No consideration appears to have been given to the potential benefits to others of Mr Sutherland’s proposal for vehicle access to the pool.

79 Whether the requirement is appropriate and adapted to its purpose and has a logical and understandable basis. The Respondent submitted that the location of the car park 75 metres from the pool meant that the facilities were relatively proximate and that the distance to be traversed was not unreasonable in the circumstances. The Applicant contended that in fact the distance was greater than 75 metres because it was 75 metres to the door of the complex, rather than to the pool steps. However, as the requirement or condition for the purposes of the indirect discrimination claim is framed on the basis of a requirement to traverse 75 metres, we proceed on the basis of this measurement.

80 Mr Sutherland filed a statement dealing with disabled parking and the distance to the pool facilities at a number of public swimming pools visited in the Tallong area. The Respondent filed a statement by Mr Rafferty on this subject. Mr Sutherland also produced a further written summary (Exhibit 6). We do not find any of the measurements or the comparisons persuasive. For example, on the issue of disabled parking it appears that Mr Rafferty was looking for official disabled parking, while Mr Sutherland refers to areas where he had in the past been permitted to park. On the measured distances, it appears that Mr Rafferty and Mr Sutherland were measuring from different locations and to different pools. We do not attach any weight to these measurements.

81 In justifying the requirement to traverse 75 metres from the car park, the Respondent relied on the fact that it has installed a pathway to the pool to facilitate access and that this was in response to a proposal by Mr Sutherland at a meeting on 11 October 2002. The minutes record that “Doug” suggested sealing the area in front of the pool and a sealed pathway from the car park. Assuming Doug Sutherland made these suggestions, one explanation is that it was not anticipated by Mr Sutherland in October 2002 that the sealed path would be constructed in such a way as to affect his ability to drive his car along this route to the pool complex. It was not until spring 2003 that he claimed his vehicle access was affected.

82 Setting aside the issue of who proposed the pedestrian path, it is not logical to suggest that a pedestrian path is a complete answer to every issue of disabled access. A pedestrian pathway and vehicle access are not necessarily mutually exclusive options. In addition, by the time the sealed pathway was installed in early 2004, the management committee must have been aware that vehicle access was an issue, because of the earlier correspondence in late 2003. In these circumstances, the committee went ahead with the construction of a pedestrian path. It does not make sense to justify refusing vehicle access on the basis of having installed pedestrian access, when the committee made this choice with knowledge of the dispute over vehicle access.

83 Less discriminatory options and other accommodations. Part of the inquiry into assessing the issue of reasonableness is to consider what efforts were made to accommodate the Applicant’s needs by way of alternatives to imposing the requirement (Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184 at [69]).

84 As an alternative to having to traverse from the car park to the pool Mr Sutherland obtained an estimate from Mr Don Luke in February 2005 of $1474 to construct a gravel road from the car park to the swimming on the outside of a row of wattle trees that divided the golf course and the pedestrian path. The Respondent obtained a quote in June 2005 from Cooper Earth Moving, which was for $15,218. Mr Mc Donald in his written statement indicated that this amount was deemed “an unjustifiable application of Association funds.” He also indicated that the Applicant’s quote was unacceptable because the proposal encroached on the fairway and did not address the need to ensure safety of pedestrian, cars and children in the vicinity of the golf course.

85 Counsel for the Applicant questioned Mr McDonald about the necessity of various safety features in the quote from Cooper Earth Moving, such as the safety rails and mesh, and suggested the brief for the quote was not a genuine attempt to investigate the feasibility of vehicle access. In our view, it is appropriate that the committee have regard to issues of safety and liability in exercising its responsibilities in managing the common areas and the facilities. Although the quote obtained by the Association may be conservative in its approach to safety and liability issues, the estimate obtained by the Applicant does not address any potential safety issues.

86 In our view, a review of the Minutes of Meetings for the period January 2003 to January 2006 shows that the Respondent was prepared to; entertain requests from individuals for additional facilities; get initial costings; and to put this to a vote of members, even where the cost was in the order of $15,000 (as was the case with children’s playground). In the case of Mr Sutherland’s request for vehicle access to the pool, no costing was done until June 2005, after Mr Sutherland made his complaint to the Anti-discrimination Board in April 2005. It was not put to a vote until December 2005. When asked why Mr Sutherland’s proposal was not costed and put to the association members before December 2005, Mr McDonald indicated that it would require removing part of the golf course, disadvantaging approximately 160 people.

87 We find that the Respondent failed to give appropriate and timely consideration to whether it could facilitate Mr Sutherland’s access to the pool complex in some way other than requiring him to traverse 75 metres from the main car park. Mr Sutherland had raised the issue of vehicle access on a number of occasions, but the Respondent’s management committee was not prepared to look into the request, obtain costings or put it to its members until well after Mr Sutherland made his complaint to the Anti-discrimination Board.

88 A further issue is whether there was a less discriminatory option available. There is an unsealed maintenance road, currently used by contractors and the caretaker to access the pool complex and surrounding amenities from the main road. The Respondent raised the issue of the danger posed to pedestrians if Mr Sutherland drove along the maintenance road, as well as the risk to Mr Sutherland, his car and his passengers from golf balls, as the path crosses the fairway. However, there was no evidence of existing safeguards or warning signs used to reduce the risk for the commercial vehicles currently using this road, or for pedestrians and golfers in the area. The Applicant submitted that if the road was used as disabled access for the pool, certain restrictions could be imposed and appropriate signage used. Again, this issue goes to the failure of the Respondent to explore what options might have been available. Counsel for the Respondent questioned Mr Sutherland about whether he would be prepared to accept all risks in using this access, to which he indicated he would. The Respondent questioned this as being inconsistent with Mr Sutherland earlier position of not using the pool until the waiver issue was resolved. We do not regard it as necessary for Mr Sutherland to give such an undertaking in order for the access road to be considered as a potential alternative to the requirement imposed.

89 Taking into account all of the issues discussed above, we conclude that the requirement imposed by the Respondent was not reasonable in all the circumstances. We are satisfied that the Respondent unlawfully discriminated against Mr Sutherland on the ground of his disability in the terms on which the service was provided to him contrary to section 49M (1)(b) of the AD Act.

Unjustifiable hardship

90 The Respondent relies on the defence of unjustifiable hardship pursuant to s 49M(2) of the AD Act. The Respondent’s Points of Defence stated that to “provide the facilities which the Applicant seeks would impose an unreasonable burden on the members of the Association for the benefit of one or very few members”. Pursuant to s109 the onus is on the Respondent to make out the defence of unjustifiable hardship.

91 Earlier in these reasons we found that the conduct of the Respondent had the effect of preventing Mr Sutherland’s access to the facilities, thereby limiting his access to an appropriate form of exercise when resident at Tallong Park Estate. It was accepted that his disability made it difficult for him to walk unassisted to the pool facilities. We also consider that there may be a potential benefit from vehicle access to the pool facilities for others persons with a disability.

92 As far as the financial circumstances of the Respondent are concerned, Counsel for the Respondent tendered the Minutes of meetings of the Association for the last three years, highlighting that arrears in the payment of levies and the recovery of unpaid levies are a significant issue for the Respondent. He submitted that although the Respondent had significant accumulated funds, this was a product of it being financially prudent and of committing members to levies so as not to diminish these funds. The Balance Sheet for the Respondent as at 30 June 2005 records its net assets as $1,061,854.23.

93 The estimated amount of expenditure required to provide suitable vehicle access varied in the quotes produced. Even if we take the higher figure of $15,218 this is not out of keeping with the expenditure that the Respondent was prepared to consider on other improvements or additions to the facilities, such as a children’s playground. Given the resources of the Association in terms of accumulated funds, and the relatively modest amount of expenditure involved, in the circumstance we find that unjustifiable hardship is not made out.

Decision and orders

94 The decision of the Tribunal is that the complaint of disability discrimination in the provision of goods and services is substantiated.

95 As to appropriate relief in the circumstances, the Applicant has set out in his Points of Claim various orders sought. These include an order for damages, as well as orders requiring the Respondent to take various actions in relation to vehicle access to the pool, and in relation to the facilities provided at the pool. The Applicant also seeks an order that the Respondent pay the Applicant’s costs of these proceedings. No details of any claim for economic loss or non-economic loss were presented by the Applicant. With respect to the various orders sought requiring remedial action by the Respondent, the question arises whether these come within the terms of s 108 of the AD Act.

96 Unless the parties are able to agree on an appropriate form of relief, in order for the Tribunal to make a proper determination it is necessary that further material be filed. In the circumstances, we make the following directions:

1. The Applicant file and serve any evidence and submissions on the question of appropriate relief within 21 days of this decision.

2. The Respondent file and serve any evidence and submissions on the question of appropriate relief in reply within a further 21 days.

3. Matter to be listed for hearing on a date to be fixed by the Registrar.