Hulena v Owners Corporation Strata Plan 13672 [2009] NSWADT 119 (25 May 2009)

Last Updated: 18 June 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Hulena v Owners Corporation Strata Plan 13672 [2009] NSWADT 119


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
Applicant:
Gay Hulena

Respondent:
Owners Corporation Strata Plan 13672




FILE NUMBERS:
071056

HEARING DATES:
1 & 2 May 2008




DATE OF DECISION:
25 May 2009

BEFORE:
Pritchard S - Judicial MemberHayes E - Non-Judicial MemberSchembri A - Non-Judicial Member





LEGISLATION CITED:
Anti-Discrimination Act 1977 (NSW)
Equal Opportunity Act 1984 (WA)
Interpretation Act 1984 (WA)
Town Planning and Development Act 1928 (WA)
Strata Schemes Management Act 1996 (NSW)
Health Services Act 1997 (NSW)
Anti-Discrimination Act 1991 (Qld)

CASES CITED:
King v Meilman East Pty Limited [2004] NSWADT 46
Kimble & Souris v Orr [2003] NSWADT 49
Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163
Waters v Public Transport Corporation (1991) 173 CLR 349I
W v City of Perth [1997] HCA 30; (1997) 191 CLR 1
PW v Royal Prince Alfred Hospital [2007] NSWADT 31
Strata Titles Board Case 550 (1992) NSW Titles Cases 81-550; Case 809 (1989) NSW Titles Cases 31-809
C v A [2005] QADT 14
Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163
Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165
Wollongong City Council v Bonella (EOD) [2002] NSWADTAP 26 at [30]
Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at [104]
State of New South Wales v Amery [2006] HCA 14; (2006) 80 ALJR 753
Bradley v State of New South Wales (No 2) [2003] NSWADT 94
Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294
Husein v University of Western Sydney [2007] NSWADT 278
Kumaran v Rail Infrastructure Corporation [2005] NSWADTAP 41
Jordan v Northern Coast Area Health Service (No2) [2005] NSWADT 258
Dunne v RailCorp [2006] NSWADT 273 at [58]
Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] EOC 93-352; [2004] NSWCA 404
Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251
Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1
Gardiner v WorkCover Authority of NSW [2004] NSWADTAP 1
The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR
Moxon v Westbus Pty Limited [2000] NSWADTAP 12
Moxon (No 2) v Westbus Pty Ltd [2002] NSWADTAP 24
Hills Grammar School v Human Rights & Equal Opportunity Commission [2000] FCA 658; (2000) 100 FCR 306
Forest v Queensland Health [2007] FCA 936; (2007) 161 FCR 152

TEXTS CITED:


APPLICATION:


MATTER FOR DECISION:



REPRESENTATION:
Applicant Representative:
Ms E Raper, barrister
Respondent Representative:
Ms P Thew, barrister


ORDERS:
The complaint is dismissed


Reasons for Decision:

Introduction

1 The proceedings concern an alleged contravention of ss 49B(1)(b) and 49M(1)(b) of the Anti-Discrimination Act 1977 (NSW) (the AD Act). Section 49B(1)(b) proscribes indirect discrimination on the ground of, inter alia, the aggrieved person’s disability. Section 49M(1)(b) renders it unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability in the terms on which he or she provides the person with those goods or services.

2 The proceedings concern access by the applicant Ms Hulena to her apartment from the common property of the apartment complex in which she lives. Ms Hulena contends that the respondent has imposed a term in its provision of services which constitutes indirect discrimination against her on the ground of disability.

3 The respondent is the body corporate which owns the common property of the apartment complex. From at least March 2000, the respondent has engaged BCS Strata Management trading as Body Corporate Services to act as its agent for all body corporate services.

Background

The applicant

4 Ms Hulena has multiple sclerosis. The condition was diagnosed in the early 1960s when she was seventeen years old. However, Ms Hulena has experienced significant symptoms since 2000. Her symptoms include poor balance, lack of stability, unsteady gait, muscle weakness and fatigue. The severity of the symptoms varies from day to day. As a result of these symptoms, Ms Hulena often has difficulty walking, and with lifting and carrying items and opening and closing heavy doors. Ms Hulena gave evidence that if her condition deteriorates further in the future, she may need to use a wheelchair.

5 Ms Hulena owns and lives in apartment 15 of building 105 in an apartment complex in Victoria Street, Potts Point, Strata Plan No 13672, known as "Victoria Point". She purchased the apartment in 1993, and has lived in it continuously since then. She lives alone in the apartment. She does not have a registered on title car space or a car.

The apartment complex and the three pedestrian access routes to Ms Hulena’s apartment

6 It was common ground that the apartment complex known as Victoria Point was constructed in the 1970s, some forty years ago.

7 Ms Hulena’s apartment is located on level 10 of building 105, one level below Victoria Street and the main courtyard area of the apartment complex. The designated pedestrian entrance to building 105 involves entry from Victoria Street via a level walkway to the main courtyard area of the complex, across the courtyard (approximate length of travel 23m) to building 105, and through a 1.2m wide steel security gate on level 11. Ms Hulena then gains access to her apartment by going down two flights of stairs to level 10 and along a corridor to apartment 15 (pedestrian access route 1). Ms Hulena gave evidence that pedestrian access route 1 is unsuitable for her to use on days when her symptoms are severe. She experiences particular difficulty going up the stairs, and on some days she lacks the strength to go up the stairs at all. The route is more difficult for her when the stairs are wet after the caretaker has watered nearby plants. It is always difficult for her to use the stairs when she is carrying something. A second pedestrian access route involves entry from Victoria Street via a steeply sloping walkway for approximately 20m to enter the upper parking level of strata plan 13762. Halfway along the walkway is a 830mm wide, heavy security gate, gate 115B, which requires an electronic key to be unlocked and force to be opened (pedestrian access route 2). Ms Hulena is the only resident in building 105 who has access through gate 115B. To facilitate her access, the owners’ corporation had previously provided Ms Hulena with a key to gate 115B and installed a handrail. However, Ms Hulena gave evidence that to open the gate from the Victoria Street side, she has to put her shoulder against it and push very hard. Her evidence was that during wet weather, a stream of water flows down the slope and that the ground can be slippery after rain. She also gave evidence that after garbage collection day, the bins lined up on both sides of the walkway are in a state of disarray and she has to negotiate a path around them. Ms Hulena’s evidence was that pedestrian access route 2 is unsuitable for her to use on days when her symptoms are severe because of the heavy metal gate that must be pushed open. Further, the evidence of Ms Hulena’s civil engineer and accredited access consultant Mr John Evernden was that the gradient of the walkway is not very comfortable for ambulant persons, and that the action of holding open the steel door whilst negotiating the steep slope is very difficult for an ambulant person with a disability. A further pedestrian access route to Ms Hulena’s apartment involves entry from Victoria Street via the level walkway to the main courtyard area of the complex, entry to the foyer of the tower building 103 through a manual swinging door that requires force to be opened, descent one floor in the lift from level 11 to level 10, along a corridor and through a door into the upper parking level, along another narrow corridor and through a third door (pedestrian access route 3). Ms Hulena’s evidence was that pedestrian access route 3 is tiring and inconvenient as it is much longer than either of the other two routes. Because of her unsteady gait, she finds the narrow corridor more difficult to walk in than more open areas. Further, the tiles are uneven, and she worries she might trip. The need to open three manually operated doors renders this route difficult when Ms Hulena is carrying shopping bags.

Access via the vehicular ramp

8 In the past, Ms Hulena gained access to her apartment via a large electronically operated garage door on Victoria Street which opens on to a vehicular ramp which services lower parking levels, and which comes down to the same level as Ms Hulena’s apartment. Although the driveway is sloped, it is not as steep as the alternative pedestrian entrance to building 105, and it gave Ms Hulena access to her apartment without the use of any doors or stairs.

9 Mr Garnet Evans has been portfolio manager for the respondent for some ten years. He gave evidence that prior to 1997, the building manager had provided Ms Hulena with a security access card which enabled her to open and close the garage door and use the vehicular ramp as a pedestrian walkway. However, this arrangement had been unofficial. In about 1997, the security access system was changed, and Ms Hulena was no longer able to enter the apartment complex via the vehicular ramp.

10 By letter dated 15 December 2003, Mr Evans informed Ms Hulena of its policy of only issuing swipe cards to the garage door to car owners, and that pedestrians not use the driveway for safety reasons. By letter to Mr Evans dated 31 March 2006, Ms Hulena requested various adjustments, including a remote control device to enable her to access her apartment via the garage door. By letter dated 18 April 2006, Mr Evans informed Ms Hulena that the owners’ corporation had directed that no key be provided to the garage door as it was not a pedestrian walkway, and that the door closer on her unit would be adjusted and the installation of handles in the garage area looked into.

11 On 7 August 2007, the respondent’s building and public liability insurers advised that it would have "grave misgivings" if the respondent allowed Ms Hulena to use the vehicular entrance for pedestrian access since it would cause "unacceptable liability exposure due in part to the gradient of the driveway, blind corners and the speed which vehicles will use to climb the exit due to the steep construction". Subsequently on 16 August 2007, the respondent wrote to all residents advising that access via the driveway was restricted to residents with car spaces and tradespeople protected by their own liability insurance.

12 On about 14 September 2007, Mr Mark Johns, chartered professional engineer and company principal of MJ Civil Engineering provided a report to the respondent which addressed: (a) potential use of the ramp for pedestrian access; and (b) the viability of modifying the ramp to provide pedestrian access.

13 In relation to the potential use of the vehicular ramp for pedestrian access, Mr Johns reported that such use would be contrary to: (a) the current development consent for the building; (b) the Building Code of Australia which requires the permissible grade for a pedestrian pathway to be no more than 1:8, and for persons with a disability of no more than 1:14; and (c) Australian Standard 2890.1, the Off Street Parking Code (2004 edition).

14 In relation to the viability of modifying the existing ramp to provide pedestrian access, Mr Johns reported that in order to address the inclination of any footpath, the zone of ramp to be converted would require a set of steps at the bottom of the ramp to facilitate a diverging gradient between the ramp and footpath, whilst maintaining entry and aggress at the currently fixed levels. The introduction of such steps would seem to detract from the benefit of using the ramp in the first instance. Further, if an adjacent footpath were to be constructed within the current ramp, the width of the driveway would be reduced below that required by Australian Standard 2890.1 for a two-lane access roadway. The ramp would therefore be required to be reduced to single traffic with appropriate traffic signal at both ends. This would require traffic waiting to enter the apartment complex via the ramp to queue along Victoria Street until the traffic signal indicted that it is safe to proceed. In Mr Johns’ opinion, Sydney City Council would be unlikely to approve a development application based on the introduction of a single flow traffic system due to the impact on Victoria Street. Moreover, neither Mr Johns nor Mr Ms Hulena’s expert Mr Evernden was aware of any precedent for the provision of a one lane driveway for residential premises on a permanent basis.

The pedestrian access requirement

15 On 22 November 2007, Mr Evernden provided a report for Ms Hulena in which he identified three potential access routes for pedestrian access to her apartment. Based on Mr Evernden’s evidence, in her Points of Claim, Ms Hulena identified three pedestrian access routes available to her from Victoria Street to her apartment, namely pedestrian access routes 1, 2 and 3. Ms Hulena contends that none of the pedestrian routes 1, 2 and 3 is practically suitable for use by her, none being capable of being used by a person in a motorised wheelchair or scooter (which she presently is not), and each being difficult for her because of her disability. She contends that the respondent has imposed a term in the provision of services that in order to access her apartment, a pedestrian (including the applicant) must use pedestrian access routes 1, 2 and 3 (the pedestrian access requirement).

16 In her original Points of Claim, Ms Hulena contended that there was an alternative pedestrian access route to her apartment via the electronically operated garage door on Victoria Street (the alternative access route). Ms Hulena continued to press this claim in Points of Claim (Further Amended) filed on 17 March 2008. However, after the service of expert reports, and during the course of opening her case before the Tribunal, Ms Hulena’s counsel indicated that she no longer pressed her claim in respect of the alternative access route.

Modifications to the pedestrian access routes

17 The respondent’s expert engineer Mr Johns gave evidence that modifications are required to make each of pedestrian access routes 1, 2 and 3 "suitable for disabled persons". In his report of 22 November 2007, Mr Evernden proposed modifications to make each of the three pedestrian access routes accessible for Ms Hulena. In Mr Evernden’s opinion, pedestrian access route 1 could be made viable for access by a disabled person through the provision of a vertical passenger lift, chair lift or wheelchair platform lift. In Mr Evernden’s opinion, that pedestrian access route 2 could be made viable for access by a disabled person through the provision of a wheelchair platform lift similar to that suggested for route 1. However, he also identified several disadvantages in the installation of such a conveyance at the proposed location, including the threat of vandalism and discomfort to users during inclement weather. Mr Evernden’s evidence in relation to pedestrian access route 3 was that it could be made viable for access by a disabled person through the removal of a trip hazard at the entry point to building 103 and the modification of the three door openers.

Door closers

18 The respondent’s portfolio manager Mr Evans gave evidence of a number of attempts to install an appropriate door closer to Ms Hulena’s apartment to address both issues raised by her, as well as fire safety regulations. In particular, after it received a fire inspector’s notice that the previous door closer did not comply with relevant fire safety regulations, the respondent replaced the door closer to Ms Hulena’s apartment. After Ms Hulena advised that the tension was insufficient and that she was having difficulty opening the door, the respondent arranged for its handyman and a locksmith to release the tension of the door closer. In about May 2006, the respondent replaced the door closer a second time. Thereafter, the respondent again had the door closer adjusted, according to a letter from Mr Evans to the applicant dated 6 September 2006, "to the extent possible" to meet her disability. In June 2007, after the respondent again advised that the tension in the door closer was insufficient, the door closer was replaced a third time. Mr Evans’ evidence was that as at September 2007, the third door closer had been disconnected by the applicant due to its unsuitability.

19 As a result of these difficulties, the respondent approached the Independent Living Centre, a company specialising in equipment for persons with disabilities and aged persons. The Independent Living Centre recommended a door closer having minimal resistance which might meet Ms Hulena’s needs. The cost of the closer was $257.00, that is, $200.00 more than a normal door closer.

20 The owners’ corporation subsequently resolved to install the recommended door closer, and by letter dated 17 August 2007, Mr Evans advised Ms Hulena’s solicitor of the same.

Other issues raised by Ms Hulena

21 There was also in evidence considerable correspondence between Ms Hulena and the respondent in relation to complaints made by Ms Hulena about the management of the apartment complex. This correspondence, covering the period 11 April 2001 to 17 August 2007, recorded requests by Ms Hulena and attempts by the respondent to attend to issues such as noise and nuisance from a number of adjoining neighbours, odours infiltrating her unit, a flapping balcony awning, assistance with transfer of goods to storage, water penetration, the installation of CCTV security cameras, replacement of and repairs to windows, removal of large trees from a number of garden beds in the complex, access to a fire hose cabinet for the purpose of storing goods, assessment of Ms Hulena’s toilet cistern and taps, odour in Ms Hulena’s unit from a sewer stack, installation of a handrail in the common property storeroom, interference with Ms Hulena’s television reception, delivery of local newspapers and telephone books to a more accessible location, damage to Ms Hulena’s front door by the installation at Ms Hulena’s request of a spyhole, replacement of the common property garbage door handle, and alleged kickbacks.

22 One letter from Mr Evans to Ms Hulena, dated 15 December 2003, addressed some 27 separate issues raised by Ms Hulena with Body Corporate Services.

The complaint to the Anti-Discrimination Board

23 On 28 April 2006, Ms Hulena complained to the Anti-Discrimination Board. The complaint was as follows:

"Forced to stay ‘at home’ predominantly because of disability (physical). I have owned and resided in the above premises for some 4 years (Strata Plan 13672).

This complaint is against the continual failures/omissions (inequitably) of the strata managers ..."

24 Ms Hulena attached a series of correspondence to the complaint, and identified various issues including:

(a) a request that she be given a key to the garage door;

(b) the behaviour of tenants in the complex;

(c) a request to store goods in a fire hose box; and

(d) the delivery of newspapers/telephone books etc

25 On 12 May 2006, the ADB notified the respondent of the complaint. On 24 May 2006, the respondent commented upon the allegations raised in the complaint, noting inter alia the following matters:

(a) it had previously responded to Ms Hulena’s requests by installing a handrail to allow her access to the complex through access gate 115B and by providing her with a key to this gate. Ms Hulena was the only resident in her building who had been provided access to building 105 through gate 115B;

(b) it had previously explained that pedestrian access through the electronically operated gates to the garage area was neither safe nor practical since it was the only driveway for all vehicles to enter and exit the complex. There was a blind corner at the bottom of the drive, and whist there was a mirror to assist detecting vehicles, this would not be adequate for detecting pedestrians;

(c) it did not consider that goods ought be stored in the fire hose cupboard, and had been unaware that another resident was doing so. It had written to the other resident asking her to remove her goods from the location;

(d) the Chairperson had inspected the garbage room servicing building 105 in response to a complaint made by Ms Hulena, and as a result an indoor handle had been fitted to the door; and

(e) the door closer was required by the fire regulations to be sufficiently tensed to be self-closing, and it had previously arranged for a handyman to adjust the closer to address Ms Hulena's concern.

26 On 24 July 2006, the respondent provided a further response to a letter from the ADB, noting inter alia the following matters:

(a) in relation to the use of the fire hose cupboard, advice had been provided by the officer in charge of the Darlinghurst Fire Station that fire fighting operations would not be impeded if a dividing barrier was built, thus creating a new storage cupboard. Ms Hulena would be able to use the proposed new storage area, together with the resident who had previously used the cupboard, however it would not be possible to give her exclusive use;

(b) in relation to the garage vehicle access gates, Mr Mark Johns, building engineer of MJ Civil had advised that there were a number of issues under the Building Code of Australia prohibiting the construction of a pathway down the ramp to provide pedestrian access. Most significantly, the current slope gradient was greater than that of 1 in 8 allowed in the Building Code for a pedestrian ramp, and that of 1 in 14 required for people with a disability; and

(c) in relation to the door closer, the locksmith, building manager and a member of the executive of the owners corporation would attend to check the tension of the new door closer.

Referral to the Administrative Decisions Tribunal

27 On 30 May 2007, the complaint was referred to the Administrative Decisions Tribunal.

The issues in the proceeding

28 Ms Hulena complains that the respondent has contravened s 49M(1)(b) which renders it unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability in the terms on which he or she provides the person with those goods or services.

29 The definition of indirect discrimination on the ground of disability in s 49B(1)(b) of the AD Act provides that a person discriminates against another person if on the ground of disability, the perpetrator "requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability ... being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply."

30 Accordingly, in order to establish indirect discrimination within s 49B(1)(b) of the AD Act, Ms Hulena must prove the following:

(a) the respondent provides her with "services" within the meaning of the AD Act;

(b) in the provision of such services, the respondent "imposed" a requirement or condition on the applicant;

(c) the applicant was unable to comply with the requirement or condition (relevantly, the pedestrian access requirement);

(d) a substantially higher proportion of person who do not have the applicant’s disability can comply or able to comply with the pedestrian access requirement; and

(e) the pedestrian access requirement is not reasonable having regard to the circumstances.

31 If Ms Hulena is successful in establishing each of the above propositions, it arises for the Tribunal to consider whether the provision of the claimed services would impose unjustifiable hardship on the respondent.

32 Ms Hulena has properly conceded that it was not appropriate to bring the case under s 49N(2) of the AD Act. Section 49N(2) makes it is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability inter alia (a) by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person. In order for conduct to come within s 49N(2), it must arise in circumstances where the respondent is acting as either a principal or agent in the provision of accommodation: King v Meilman East Pty Limited [2004] NSWADT 46 at [66]; Kimble & Souris v Orr [2003] NSWADT 49 at [51]; Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163 at [56]. Accordingly, s 49N(2) has no application to the relationship between an owners corporation and the owner of a lot in a strata scheme. (Note: That s 49N has no application to Ms Hulena’s complaint also follows from s 49N(5) which provides, inter alia, that nothing in the section applies to the provision of accommodation to persons who have a particular disability by a body that does not distribute its profits to members. The respondent is an owners corporation that does not distribute profits to its members. The evidence was that any sums in either the sinking fund or administrative fund which were identified as income as at 31 December 2005, 2006 and 2007 accrued to the balance of the following year.)

Whether the Respondent and/or its agent provide the services alleged

33 The first issue in the proceeding is the identification of the service or services which Ms Hulena says that the respondent provides to her. The identification of the service is a question of fact: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 361 per Mason CJ and Gaudron J.

34 Ms Hulena claims that the respondent and/or its agent provide her with the following services:

(a) the provision of entrances and exits to/from the common property;

(b) the maintenance and upkeep of the common property;

(c) the maintenance and upkeep of entrances and exits to/from the common property (the services).

35 Section 4 of the AD Act defines services as follows:

""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."

36 The expression "services" is defined in s 4 in non-exhaustive terms. That Parliament so intended is plain from the use of the verb "includes" in the definition. Further, the expression "services" should be construed broadly. In IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 the High Court was concerned with the provision of services for the purposes of the Equal Opportunity Act 1984 (WA). The WA Act defined "services" inclusively, in terms relevantly identical to s 4 of the New South Wales AD Act. Brennan CJ and McHugh J (who took the narrowest approach) said at 191 CLR at 11-12:

"The term ‘services’ has a wide meaning. The Macquarie Dictionary relevantly defines it to include ‘an act of helpful activity’; ‘the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance’; ‘the organised system of apparatus, appliances, employees, etc, for supplying some accommodation required by the public’; ‘the supplying or the supplier of water, gas, or the like to the public’; and ‘the duty or work of public servants’. ...

37 Their Honours referred at 12 to s 18 of the Interpretation Act 1984 (WA) which requires preference to be given to the construction of a written law that would promote the purpose or object underlying that law to a construction that would not promote that purpose or object. Their Honours continued:

"The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical". Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term "service", read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a "service" for the purpose of the Act."

38 However, as wide as the definition is, in the opinion of Brennan CJ and McHugh J it was not capable of including a refusal to exercise the statutory discretion provided for by the Town Planning and Development Act 1928 (WA) and Clause 40 of the City of Perth City Planning Scheme to approve the use of premises for use other than as a shop. The other members of the Court took a broader view. For example, Dawson and Gaudron JJ considered that the term "services" was apt to include the administration and enforcement of a planning scheme. Their Honours observed at 191 CLR at 23 that "service" is a word of complete generality, and that it should not be given a narrow construction unless clearly required by definition or context.

39 Earlier in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, McHugh J emphasised the importance of articulating with precision the service which is contended for. At 404-405, his Honour said:

"Accordingly, 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, e.g., 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."

See also IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16 to 17 per Brennan CJ and McHugh J.

40 Bearing in mind the need properly to characterise the services in question and to identify those services which are relevant to Ms Hulena, we turn to consider each of the three services which she contends is provided by the respondent; namely, the provision of entrances and exits to/from the common property; the maintenance and upkeep of the common property; and the maintenance and upkeep of entrances and exits to/from the common property.

"Provision of entrances and exits to/from the common property"

41 The first service which Ms Hulena contends is provided by the respondent is the provision of entrances and exits to/from the common property. In our view, this service, properly characterised is in essence the provision of accessible entrances and exits from the common property to individual apartments within the complex. The nature of this alleged service is essentially different from the second and third services which Ms Hulena contends are provided by the respondent. Those two services involve maintenance and upkeep by the respondent of the common property and entrances to and exits from it. The first service goes beyond activities in the nature of maintenance and repair of the common property, and contemplates the making of changes to the common property. In this regard, it is necessary to distinguish between the powers of maintenance and repair, and those to make alteration to common property which are conferred by the Strata Schemes Management Act 1996 (NSW).

42 Pursuant to s 61(1) of the Strata Schemes Management Act an owners corporation has, for the benefit of the owners (a) the management and control of the use of the common property of the strata scheme concerned, and (b) the administration of the strata scheme concerned. Pursuant to s 61(2), the owners corporation has responsibility for inter alia (a) maintaining and repairing the common property of the strata scheme. The duties of an owners corporation to maintain and repair property are specified in 62(1) to include properly maintaining and keeping in a state of good and serviceable repair the common property. The expression "common property" is defined in the Dictionary to the Strata Schemes Management Act to mean "so much of a parcel as from time to time is not comprised in any lot".

43 The verb "maintain" is defined in the Macquarie Dictionary (on line edition) inter alia as follows:

"verb (t) 1. to keep in existence or continuance; preserve; retain: to maintain good relations with New Zealand. 2. to keep in due condition, operation, or force; keep unimpaired: to maintain order; maintain public highways.3. to keep in a specified state, position, etc."

44 The noun "upkeep" is defined in the Macquarie Dictionary (on line edition) in relevantly similar terms inter alia as follows:

"1. the process of keeping up or maintaining; the maintenance, or keeping in operation, due condition, and repair, of an establishment, a machine, etc."

45 Similarly, the verb "keep" is defined in the Macquarie Dictionary (on line edition) inter alia as follows:

"3. to maintain in condition or order, as by care and labour."

46 In our view, changes to the common property, for example by the installation of a platform or vertical lift, would not be comprehended by the powers of maintenance and repair conferred by ss 61 and 62 of the Strata Schemes Management Act. The relevant power is conferred by s 65A(1), which contemplates that an owners corporation may make changes to common property, by adding to, altering or erecting a new structure on the common property: see s 65A(1) of the Strata Schemes Management Act and Strata Titles Board Case 550 (1992) NSW Titles Cases 81-550; Case 809 (1989) NSW Titles Cases 31-809. Such action may be taken for the purpose of improving or enhancing the common property where a special resolution has first been passed at a general meeting of the owners corporation that specifically authorises the taking of the particular action proposed: s 65A(1).

47 On the other hand, actions by way of adjusting door closers and installing a handrail to facilitate access would be more likely comprehended by the powers of maintenance and repair conferred by ss 61 and 62.

48 It is true, as the respondent points out, that the evidence of both the applicant in cross-examination and Mr Evans in chief was that the applicant placed no such special resolution before the owners corporation seeking the changes identified by Mr Evernden in respect of pedestrian access routes 1 to 3. We do not read s 65A to require a special resolution for the improvement or enhancement of the common property to be placed before a general meeting of the owners corporation by the owner of a lot, as opposed to, say, the owners corporation. Accordingly, we do not accept the respondent’s submissions that in the absence of any motion from Ms Hulena, the owners corporation is unable to pass a special resolution under s 65A for an upgrade or enhancement of the common property.

49 However, more fundamentally, this aspect of Ms Hulena’s case had led us to consider whether the concept of "services" in s 4 of the AD Act would in the present context be construed as confined only to those actions which an owners corporation is under a statutory duty to undertake (such as maintenance and upkeep), or whether it extends to discretionary actions which the owners corporation may, by special resolution, be authorised to take.

50 In this connection, the respondent placed reliance on the decision of the Tribunal in PW v Royal Prince Alfred Hospital [2007] NSWADT 31. In that case, the Tribunal was concerned with s 38M of the AD Act which is relevantly identical to s 49M(1) (except insofar as it relates to discrimination on transgender grounds). Although the complaint was one of direct discrimination (rather than indirect discrimination as in the present case), the Tribunal’s reasons in relation to the concept of "services" is apposite. The Tribunal held at [30] that none of the provisions of the Health Services Act 1997 (NSW) on which PW sought to rely imposed any statutory duty on the respondents to provide any particular non-chargeable hospital service such as sex reassignment surgery (SRS) to public patients. Although SRS was a "service" within the meaning of that term in the AD Act, it was not a service which the respondents "provide". Consequently, there was no breach of s 38M(a) and the question of whether the refusal of the service constituted unlawful discrimination did not arise: at [33]. This conclusion made it unnecessary to make any findings about the policy or other reasons for not providing SRS at the hospital or the practicality of providing such a service in the future. These were not issues which the circumstances of the case permitted the Tribunal to examine.

51 In Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Brennan J at 375 observed:

"Because of the correlation between the terms on which a service is performed and the performance of the service, the existence of discrimination can be ascertained only by reference to the terms on which an actual service is performed by the putative discriminator. The service relevant to an alleged act of discrimination is the service which the putative discriminator performs, not a service which the putative discriminator has been accustomed to perform, nor a service of a higher standard which the putative discriminator could perform but is not performing."

52 In the instant case, there is some evidence that the respondent has performed actual services in the nature of providing accessible routes to individual apartments from the common property, namely by way of the provision of a handrail to facilitate access along pedestrian access route 2 and attempts to provide an appropriate door closer to Ms Hulena’s apartment. Whilst we do not need to and do not make any finding as to whether the respondent was under a statutory duty to take these actions, they are evidence that the service requested is one actually provided by the respondent.

53 Accordingly, we find that the respondent has, in fact, provided the service of providing accessible entrances and exits from the common property to individual apartments within the complex.

"Maintenance and upkeep of the common property"

54 The second of the services which Ms Hulena contends is provided by the respondent is the maintenance and upkeep of the common property. As discussed above, we are satisfied that pursuant to ss 61 and 62 of the Strata Schemes Management Act, the respondent is required to properly maintain the common property and keep it in a state of good and serviceable repair. Similarly, we are satisfied that the respondent is required to provide such a service to Ms Hulena as an owner of a lot in the strata scheme. However, to adapt the language of McHugh J in Waters, before there can be a finding of discrimination by the respondent in relation to the provision of services, the relevant service must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. Accordingly, it is for Ms Hulena to satisfy us how the provision by the respondent to owners of lots in the strata scheme of the service of maintenance and upkeep of the common property is relevant to the issues of discrimination which arise to be resolved in this case.

55 In our view, the core issue which arises for determination in this connection concerns Ms Hulena’s access to her apartment from the common property. Properly characterised, the service which Ms Hulena contends that the respondent provides is the provision of accessible entrances and exits from the common property to individual apartments within the complex. In our view, the concepts of maintenance and upkeep are concerned with the continuation of a specified state including by repair, and do not connote alterations to the common property to accommodate particular needs in relation to access. Although we have had regard to the principle that the AD Act should be given "a fair, large and liberal" interpretation rather than one which is "literal or technical", we are unable to conclude that maintenance and upkeep of the common property is a sufficiently precise identification of a relevant service in the present case which concerns, in essence, access by the applicant to her apartment from the common property.

"Maintenance and upkeep of entrances and exits to/from the common property"

56 The third of the services which Ms Hulena contends is provided by the respondent is the maintenance and upkeep of entrances and exits to/from the common property. In our view, the provision of such a service is logically related to if not inseparable from the maintenance and upkeep of the common property. Accordingly, we conclude that the services provided to Ms Hulena by the respondent include the maintenance and upkeep of accessible entrances and exits to and from the common property. However, again it is necessary for us to be satisfied how the provision of such a service is relevant to the issues of discrimination which arise to be resolved in the present case. We are unable to conclude that maintenance and upkeep of entrance and exits to/from the common property is a sufficiently precise identification of a relevant service.

Services relating to recreation

57 Ms Hulena further submitted that even if the Tribunal were to construe "services" as limited to those listed in subsections (a) to (f) of the definition in s 4 of the AD Act, the provision of entrances and exits at the apartment complex would be characterised as either:

(a) services relating to recreation (s 4(b)); or

(b) 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 (s 4(f)).

58 In light of our finding that the respondent has, in fact, provided the service of providing accessible entrances and exits from the common property to individual apartments within the complex, it is not strictly necessary for us to deal with these submissions. For the sake of completeness, however, they can be disposed of briefly.

59 In support of her submission in relation to services relating to recreation, Ms Hulena relied on C v A [2005] QADT 14, a decision of the Anti-Discrimination Tribunal of Queensland which involved, among other issues, the interpretation of the expression "services" which is defined in the Dictionary to the Anti-Discrimination Act 1991 (Qld) in relevantly identical terms to the definition in s 4 of the AD Act. In C v A the complainant had a condition that affected her vision, ability to walk, breathing and hearing, and used a motorised wheelchair. The respondent was the body corporate of the residential building where she resided part-time. C complained that she could not travel independently between her apartment and the street frontage, or around the pool areas, due to various locking devices which she was unable to operate because of her disabilities. She submitted that the relevant service was "the ability for the complainant to be able to enter and exit the building in which her apartment is located and the pool area and associated area within it".

60 The Tribunal found that the body corporate provided a service within the terms of the Anti-discrimination Act 1991 (Qld), noting at [15] that "services" was defined to include "recreation." The Tribunal continued at [16] to [17] as follows:

"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.

Access is only expressly mentioned at subparagraph (a) of the definition of services (and then only in relation to access to public facilities). Nevertheless it seems plain that one would fail to supply a service by failing to provide access to those premises upon which any relevant service is offered or by failing to maintain the access way as a "facility" associated with a recreation service in itself. As there seems no particular authority to suggest a more restrictive meaning I adopt that construction. Neither side sought to suggest that the provision of access or an access way was not a service."

61 In the Tribunal’s view, the relevant service was "the provision of access to and from the pool and associated recreational area located on the common property of "A" –or the maintenance of the doorways as a facility in themselves associated with the pool and associated recreational areas – either from the street frontage or C’s apartment."

62 In our view, the decision in C v A is distinguishable from the present case. In C v A the relevant service was one relating to recreation. It was no part of Ms Hulena’s case that she had sought and experienced difficulty accessing the swimming pool or any associated recreational area located on the common property. Nor would any of the modifications she seeks to have made facilitate access by any other resident to the swimming pool. We do not consider that the evidence adduced in cross-examination of Mr Evans in relation to access to the swimming pool by residents generally to be of relevance.

63 Ms Hulena further relied on the decision of this Tribunal in Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163. In that case the applicant complained that the respondent prevented him from driving his vehicle to the area within the common areas of a residential development where a swimming pool was located, and from parking in an area proximate to the pool. He claimed that in order to access the pool facilities, he was required to park in the main car park and traverse approximately 75 metres to the pool, which he could not do because of his disability. The common areas on which the pool was located were controlled and managed by the respondent. The Tribunal held at [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."

64 Again, we consider that the decision in Sutherland v Tallong Park Association Incorporated is distinguishable on the basis that the relevant service was one relating to recreation. It is not Ms Hulena’s case that she seeks and has difficulty accessing the swimming pool or any other recreational, sporting or leisure facilities within the common property of the apartment complex. Accordingly, we are not satisfied that on the facts of this case the provision of entrances and exits at the apartment complex would be characterised as a service relating to recreation.

Services consisting of access to and use of facilities in any place that the public is entitled or allowed to enter or use

65 Ms Hulena further submitted that the relevant service would be characterised as falling within s 4(f), namely a service "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". In this regard, she submitted that the entrances and exits to the apartment complex are arrangements which provide the means by which invited members of the public (residents, tradespersons, visitors etc) may from time to time access the individual units and common property.

66 Again, it was not any part of Ms Hulena’s case that invited members of the public (residents, tradespersons, visitors etc) have from time to time sought to access individual apartments and common property, and experienced difficulty. Nor, as a matter of construction is it apparent to us that apartments within a residential complex would be characterised as "facilities" within the meaning of s 4(f). Accordingly, we are not satisfied that the relevant service into his case can be characterised as falling within paragraph (f) of the definition in s 4 of the AD Act.

67 However, for the reasons given we have found that that the respondent in fact provides the service of providing accessible entrances and exits from the common property to individual apartments within the complex, and hence provides a service within the meaning of s 4 of the AD Act.

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

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

69 There is abundant authority for the proposition that the expression "requirement or condition" in s 49B(1)(b) of the AD Act must also be construed broadly: Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 per Dawson J; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 per Dawson and Toohey JJ at 393; Wollongong City Council v Bonella (EOD) [2002] NSWADTAP 26 at [30]. Further, it is sufficient for the requirement or condition to be implicit in the conduct which is said to constitute discrimination: Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at [104] per Sackville and Stone JJ. As McHugh J observed in Waters v Public Transport Commission [1991] HCA 49; (1991) 173 CLR 349 at 407:

"In the context of providing goods or services, a person should be regarded as imposing a requirement or condition when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed."

70 In relation to this element of her claim, Ms Hulena again relied on the decision of this Tribunal in Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163, and in particular the following passage at [67]:

"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 meters 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."

71 Ms Hulena contends that the respondent requires her "to access her apartment through one of the three access routes" and that it has "provided no alternative". She contends that the respondent has required her to access her apartment though one of the three access routes "as a necessary prerequisite" of her "taking advantage of the facilities provided to her".

72 Whilst we are mindful of the need to construe the expression "requirement or condition" in s 49B(1)(b) broadly, we are not satisfied that Ms Hulena has made out this part of her claim. Whilst it is clear that in order to access her apartment, Ms Hulena must as a matter of practical reality use one of the three pedestrian access routes, we are not persuaded that the respondent has required her to comply with any such term. In our view, the reality which confronts Ms Hulena in seeking to enter and leave her apartment arises from the design of a building some forty years ago, prior to the adoption of Australian Standards stipulating design requirements for new building work to enable access for people with disabilities. In reaching this conclusion, we consider ourselves bound to follow the decision of the majority of the High Court in State of New South Wales v Amery [2006] HCA 14; (2006) 80 ALJR 753. There, the majority consisting of Gummow, Hayne and Crennan JJ (Callinan J agreeing at [205]-[207]) held at [65]:

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

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

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

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

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

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

Whether the Applicant can comply with the pedestrian access requirement

77 Assuming that we are wrong in our conclusion that the respondent has not required Ms Hulena to comply with any relevant requirement or condition, the next issue which arises is the capacity of Ms Hulena to comply with the pedestrian access requirement. Ms Hulena contends that she cannot comply practically with the requirement because of her disability. This submission draws on a line of authority in the United Kingdom and Australia in which courts have interpreted compliance with a requirement as the ability to comply in a practical sense, rather than a theoretical ability to comply: Bradley v State of New South Wales (No 2) [2003] NSWADT 94 at [45]. There Magistrate Hennessy observed at [46] to [48]:

"For example, the fact that a woman could theoretically work full-time, rather than part-time, does not mean that she can comply with a requirement to work full-time, if that does not suit her situation. ...

However, in some situations, there is more than a theoretical possibility of compliance, an applicant may in fact comply with a requirement, but with more difficulty, or in a different manner, from other people. ...

As far as we are aware, no Australian appellate courts have considered the issue of whether physical compliance with a requirement (albeit with difficulty) should nevertheless be regarded as an inability to comply with the requirement."

78 The Tribunal concluded at [53]:

"When considering this purpose of the legislation, there is more than one possible construction of the words "is not able to comply." Those words could mean that an applicant is not able to comply at all, or in any sense, with the requirement, or those words could mean that an applicant is not able to comply without suffering some appreciable disadvantage or detriment. Given that the focus of indirect discrimination is on equality of results, we adopt the second construction of those words. Not to do so would render the indirect discrimination provisions inoperative wherever there had been de facto compliance with a requirement regardless of the discriminatory effect or outcome of that de facto compliance."

79 In the instant case, Ms Hulena gave evidence of the practical difficulties which she has in using each of the three pedestrian access routes. Under cross-examination, she agreed that she could not say when and if she would need a wheelchair. Nor could her treating doctor say so. She agreed that at the moment, it appears that she does not require a wheelchair.

80 In a report dated 14 June 2006, Ms Hulena’s neurologist Dr Raymond Garrick confirmed that she has a chronic neurological disorder requiring lifelong management and regular review. In particular, she is unable to carry heavy parcels and has difficulty with the management of heavy doors. This condition is adversely affected by fumes and by stress. According to Dr Garrick, it would be sensible for Ms Hulena to have access to her apartment without the need for stairs. In a report dated 11 July 2007, Dr Garrick noted very gradual progress in Ms Hulena’s disability over the previous six months, and that she was experiencing greater difficulty in maintaining balance and in walking. In general, she remained quite capable of managing in her own unit, but it would be "highly desirable" for her to have ease of access that would allow her to continue to manage her own shopping and activities without the need of assistance from others. In a statement dated 16 October 2007, Dr Garrick referred to Ms Hulena’s evidence in relation to the difficulties experienced by her in accessing her apartment, and confirmed that the difficulties described by her are consistent with the nature and severity of her condition.

81 The respondent submitted that there was no evidence that the applicant was physically unable to access her apartment from outside the apartment complex. At its highest, her evidence was that she had "difficulty" accessing her apartment via pedestrian access routes 1 to 3.

82 It is true that in a technical sense Ms Hulena can presently comply with the pedestrian access requirement. There was no evidence that she is completely unable independently to enter and leave her apartment. Nor is it by any means certain that she will in the future be confined to a wheelchair. Rather, Ms Hulena’s evidence revealed a fear that she may not in the future be able to do, and an anxiety in relation to her capacity to live independently in the future.

83 However, we consider that as the Tribunal confirmed in Tallong Park at [69], the question of an applicant’s inability to comply with a requirement or condition is judged in a practical rather than a technical sense, and includes a situation where the "applicant is not able to comply without suffering some appreciable disadvantage or detriment". We find that consistent with the nature and severity of her condition, Ms Hulena experiences appreciable difficulty in entering and leaving her apartment and seeking to manage her own shopping and activities without the need of assistance. Her evidence was not exaggerated. Judged in a practical sense, we are satisfied that the applicant cannot presently comply with the pedestrian access requirement because of her disability.

Whether a substantially higher proportion of persons who do not have the Applicant’s disability can comply or are able to comply with the pedestrian access requirement

84 Again, assuming that we are wrong in our conclusion that the respondent has not required Ms Hulena to comply with any relevant requirement or condition, there next arises for determination whether a substantially higher proportion of persons who do not have the applicant’s disability can comply or able to comply with the pedestrian access requirement. In Bonella & ors v Wollongong City Council [2001] NSWADT 194 the Tribunal at [77] outlined the steps necessary to determine whether this element is established; also Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294 at [78]. Those steps were summarised in Husein v University of Western Sydney [2007] NSWADT 278 at [35] as requiring the applicant to:

"First, identify a pool or base group.

Second, identify the members within that group who suffer from the subject disability and can comply with the conduct requirement.

Third, identify the members of the base group who do not suffer from the subject disability and can comply with the conduct requirement.

Finally, compare the proportion of students without the subject disability who can comply with the conduct requirement, with the proportion of students with the subject disability who can comply."

85 Ms Hulena contends that for the purpose of the comparison, the base group is the residents and other entrants to the common property of the apartment complex. She identifies as sub-pools for the purpose of comparison:

(a) the residents and other entrants who do not have multiple sclerosis with affected mobility, strength and stamina; and

(b) the residents and other entrants who do have multiple sclerosis with affected mobility, strength and stamina.

86 Ms Hulena submits that the Tribunal can take judicial notice of the fact that a substantially higher proportion of person without multiple sclerosis can or do comply with the requirement to access the apartment using pedestrian access routes 1, 2 and 3 compared with person with multiple sclerosis. She submits, in reliance on the decision in Walker v State of New South Wales [2003] NSWADT 13 at [46] that the Tribunal does not require proof of matters of common knowledge. In this regard, she submits that the physical difficulties faced by people with multiple sclerosis are widely known and can be regarded for evidentiary purposes as a matter of common knowledge. Further, she submits in relance on Bradley at [64] that the applicant is not required to adduce specific evidence in relation to the base group or pool.

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

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

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

88 The respondent acknowledged that the Tribunal does not require proof of matters which may be regarded for evidentiary purposes as matters of common knowledge, and may take judicial notice of whether a substantially higher proportion of persons without the relevant attribute can comply with a particular requirement. However, it submits that there are limits to what can be considered common knowledge for this purpose.

89 It is not uncommon for there to be a lack of statistical evidence in indirect discrimination claims, and the Tribunal can take judicial notice of what might be regarded as common knowledge in terms of the relevant rates of compliance: Kumaran v Rail Infrastructure Corporation [2005] NSWADTAP 41; Jordan v Northern Coast Area Health Service (No2) [2005] NSWADT 258. In Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294 the Tribunal at [89] said the following of matters which might be regarded for evidentiary purposes as of common knowledge:

"It is, we think, a truth universally acknowledged that people with responsibilities for the care of a infant child find it difficult to balance their responsibilities to care for their child and work, and within the Australian workforce a lesser proportion of those with such responsibilities are able to work full time than those who do not. That is a fact so well publicised in the mass media and so widely known that, in our view, it can be regarded for evidentiary purposes as a matter of common knowledge."

90 In our view, it is desirable to set out in full the passage from Walker v State of New South Wales [2003] NSWADT 13 upon which Ms Hulena relies. There the Tribunal held at [46]:

"46 There is no evidence which would permit us to conclude that a characteristic which appertains generally to, or is generally imputed to, people with a back injury is that they use a stick or a scooter as a mobility aid. Whilst the Tribunal is not bound by the rules of evidence, it must base its decisions upon logically probative evidence. Like courts, the Tribunal does not require proof of matters of common knowledge (see s 144 Evidence Act 1995 (NSW)). There are real limits, however, to what is common knowledge, or, to use the language of the common law, the facts about which we may take judicial notice. It is not possible for us to find, as a matter of common knowledge, that it is a characteristic which appertains generally to people with back injuries, or a characteristic which is generally imputed to them, that they use sticks or scooters as mobility aids."

91 The Tribunal has also recognised that it is difficult to rely on common knowledge where detailed medical criteria are involved: Dunne v RailCorp [2006] NSWADT 273 at [58].

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

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

The reasonableness of the pedestrian access requirement having regard to the circumstances

94 Again assuming that we are wrong in our conclusion that the respondent has not required Ms Hulena to comply with any relevant requirement or condition, there finally arises to consider the reasonableness of the pedestrian access requirement having regard to the circumstances. As the Court of Appeal confirmed in Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training) [2004] EOC 93-352; [2004] NSWCA 404, the applicant bears the onus of establishing that an offending requirement is "not reasonable".

95 In Amery the Court of Appeal cited with approval the approach adopted by the Full Court of the Federal Court in Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 23 FCR 251 to the test of reasonableness:

"...the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience...The criterion 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 requirement or condition on the other. All the circumstances of the case must be taken into account."

See also the summary of the relevant principles provided by Sackville J in Commonwealth Bank v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at 32 to 35.

96 In the present case, Ms Hulena provided various particulars in support of her contention as to the unreasonableness of the pedestrian access requirement. First, she contended that the pedestrian access requirement significantly impedes her independent access to her own apartment. We are satisfied that Ms Hulena’s symptoms include poor balance, lack of stability, unsteady gait, muscle weakness and fatigue. As a result of these symptoms, she often has difficulty walking, and with lifting and carrying items and opening and closing heavy doors. At the same time, we find that consistent with the unpredictability of the symptoms of multiple sclerosis, the severity of her symptoms varies from day to day. Further, at present, neither Ms Hulena nor her treating specialist could not say whether she would need a wheelchair.

97 Second, Ms Hulena contends that the pedestrian access requirement significantly impedes independent access to the residential apartment complex for other residents and entrants who have other mobility disabilities or sensory disabilities or upper body weaknesses, including elderly persons. Ms Hulena adduced no evidence in relation to other residents of the apartment complex and, in particular whether any other resident experiences mobility disabilities, sensory disabilities or upper body weaknesses. Nor did she explain how the so-called pedestrian access requirement which only concerns access to Ms Hulena’s apartment impedes independent access for other residents and entrants to the residential apartment complex generally. There simply was no evidence concerning difficulties experienced by any other resident or entrant accessing either Ms Hulena’s apartment or any other apartment within the complex. Accordingly, we can attribute no weight to this particular advanced by Ms Hulena in support of the unreasonableness of the pedestrian access requirement.

98 Third, Ms Hulena contends that the respondent has had approximately 40 years since the residential apartment complex was built to provide an accessible entry route for residents and entrants with mobility disabilities or sensory disabilities or upper body weaknesses, including elderly persons. In our view, against this particular, it is significant to note Mr Johns’ evidence that the apartment complex was constructed prior to the adoption of either Australian Standard 1735.12 or Australian Standard 1428.1.

99 Australian Standard 1735.12 sets out requirements for facilities in passenger lifts that are specifically designed to assist persons with disabilities. It was first published in 1986. It applies to newly installed lifts in the public access path, in newly constructed lift wells in other than private residences, and for which a building authority having jurisdiction stipulates the provision of facilities for persons with disabilities: see clause 1.1.1. Australian Standard 1428.1 was first published in 1998. Its objective is to provide building designers and users (architects, property owners, regulators, and the like) with the minimum design requirements for new building work to enable access for people with disabilities. In clause 1, headed "Scope", the standard provides as follows:

"This Standard specifies the design requirements applicable to new building work, excluding work to private residences, to provide access for people with disabilities. Particular attention is given to accessways and circulation spaces and consistent linkages suitable for use by people who use wheelchairs, and access and facilities for people with ambulatory disabilities and for people with sensory disabilities."

100 Further, Mr Johns gave evidence that the apartment complex presently complies with both the Building Code of Australia and Australian Standard 1428.1. Accordingly, whilst it would no doubt be desirable from Ms Hulena’s point of view that the complex provided an accessible entry route for all residents and entrants with mobility disabilities, sensory disabilities and upper body weaknesses, there is no suggestion that in the case of Ms Hulena, there is any present failure by the respondent to comply with relevant requirements of the Building Code.

101 Fourth, Ms Hulena contends that modifications can be made to the existing access routes so as to make them accessible, including but not limited to installation of automatic door openers operated by remote control or installation of a platform or vertical lift. In this respect, Mr Evernden gave evidence in relation to modifications which could be made to each of pedestrian access routes 1, 2 and 3 to make them accessible to Ms Hulena. In the case of route 1, those modifications would involve the provision of a vertical passenger lift, chair lift or wheelchair platform lift. Mr Johns’ estimate that the minimum cost of the alterations proposed to route 1 was either:

(a) $125,000 inclusive of GST plus finance costs, council application fees and ongoing lift maintenance – for a vertical passenger lift; or

(b) $91,500 inclusive of GST plus finance costs, council application fees and ongoing lift maintenance – for a chair lift or wheelchair platform lift;

102 In the case of route 2, the modifications would involve provision of a wheelchair platform lift similar to that suggested for route 1. However, Mr Evernden also identified several disadvantages in the installation a wheelchair platform lift on route 2, namely the threat of vandalism and, more relevantly in our view, discomfort during inclement weather. Mr Johns’ estimate of the cost of the alterations proposed by Mr Evernden statement to route 2 was $61,000 inclusive of GST plus finance costs, council application fees and ongoing lift maintenance. In addition, the cost of installing an automatic door opener in respect of route 2 (one door) was $4,950 plus $2,000 for power supply and ongoing maintenance of $330 per annum.

103 In relation to route 3, Mr Evernden proposed the modification of three door openers, and the removal of a trip hazard at the entry point to building 103. Mr Johns’ estimate of the cost of modifying access route 3 (three doors) was $16,247 plus $3,000 for power supply and ongoing maintenance of $990 per annum. In addition, Mr Johns’ evidence, with which Mr Evernden agreed, was that the changes identified by Mr Evernden to routes 1 and 2 would require a development application to be lodged with and approval by the City of Sydney Council. However, as Ms Hulena submitted, there was "no suggestion that any modification which requires any regulatory or legislative approval would not obtain such approval".

104 In Gardiner v WorkCover Authority of NSW [2004] NSWADTAP 1, the Appeal Panel at [27], [35]-[41] confirmed as correct the Tribunal’s formulation at first instance of the test of "reasonableness" which brought together different elements of the statements of principle to be found in the leading authorities. The Tribunal had held that in determining whether a requirement or condition is reasonable, it is required to balance the nature and extent of the discriminatory effect of the requirement against:

(a) the reasons for the requirement including any commercial considerations;

(b) whether the requirement is appropriate and adapted to its purpose and has a logical and understandable basis; and

(c) 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.

105 Further, the authorities establish that in considering whether an activity could be performed "without imposing a requirement or condition that is discriminatory" it is not necessary for the Tribunal to satisfy itself that no stone had been left unturned by a respondent in its evaluation of alternatives. However, reasonable efforts need to be shown: Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294 at [105].

106 In relation to the reasons for the pedestrian access requirement, its is tolerably clear that the requirement has its origin in the design of a building some fourty years ago at time at which the Building Code and other relevant standards in relation to design were insufficiently attentive to the needs of persons with disabilities. Whilst the result is no doubt unfortunate and inconsistent with contemporary notions of appropriate design to accommodate the needs of person with disabilities, the apartment complex Victoria Point is by no means a rare example of such an apartment building in New South Wales. In our view, the requirement has a logical and understandable basis.

107 It is also clear that the respondent has made considerable efforts in its evaluation of alternatives, to facilitate access by Ms Hulena to her apartment, and to accommodate her disability. There was evidence that the respondent installed a handrail and provided Ms Hulena with a key to gate 115B so that she might use route 2. Notwithstanding the "grave misgivings" of its building and public liability insurer, the respondent engaged Mr Johns to provide a report addressing the potential use of the vehicular ramp for pedestrian access, and the viability of modifying the ramp to provide pedestrian access. The respondent’s chairperson had inspected the garbage room servicing building 105 in response to a complaint made by Ms Hulena, and as a result an indoor handle had been fitted to the door. In relation to the use of the fire hose cupboard, the respondent sought advice from Darlinghurst Fire Station, and as a result resolved to construct a dividing barrier, thus creating a new storage cupboard, and to allow Ms Hulena shared use of the new storage area. In relation to the door closer, the respondent had arranged for the door closer to be replaced three times and for numerous attendances to check the tension of the new door closer. As a result of issues with the door closer, the respondent approached the Independent Living Centre, and accepted its recommendation concerning the installation of a door closer with minimal resistance. On 17 August 2007, the respondent advised Ms Hulena of the same.

108 In weighing the modifications sought by Ms Hulena to access routes 1 and 2, each of which involves accommodation of a passenger or wheelchair platform lift, a not inconsiderable expense, we consider it significant that there is presently no suggestion that Ms Hulena will require the assistance of a wheelchair. The "Frequently Asked Questions (FAQs) about MS)" tendered by Ms Hulena confirm that: "The majority of people with MS do not become severely disabled. Longitudinal studies have shown 50% of people with MS are independently mobile after 15 years". In relation to route 2, there are also the additional problems identified by Mr Evernden. Thus, In respect of the modifications sought to routes 1 and 2, Ms Hulena has not persuaded us that the requirement is unreasonable.

109 In relation to route 3, in weighing the reasonableness of the modification of three door openers at a cost of approximately $16,247 plus $3,000 for power supply and ongoing maintenance of $990 per annum, it is relevant to have regard to the financial position of the respondent. The balance sheet for Strata Plan 13672 shows as at 31 December 2007 total owners’ funds in an amount of $957,256.78, being $278,108.52 in the administrative fund and $679,148.78 in the sinking fund. This position was better than that at 31 December 2006, when the total owners’ funds was an amount of $756,449.72, comprising $201,778.50 in the administrative fund and $554,671.22 in the sinking fund. However, the financial position of the respondent can not be considered in abstraction from the necessity of and decisions made in relation to remedial works in the strata scheme.

110 In early 2005, the respondent commissioned from MJ Civil Engineering an assessment of the condition of the apartment complex. As part of this review, a number of structural issues were raised for the executive committee. The most significant issue was rotation of the concrete balconies caused by a heavy masonry perimeter balustrade and resulting in the fracture of adjoining masonry and parapets (identified as an issue by 26% of units inspected). MJ Civil Engineering recommended a lightweight replacement to the masonry balustrade.

111 On 24 August 2007, MJ Engineering provided a detailed specification of the tender works for the balcony refurbishment project. MJ Engineering estimated that the costs associated with the tender package would be in the vicinity of $800,000, plus supervision costs and a 10% contingency. As a result, it became necessary for the respondent to raise further levies in an amount of approximately $300,000 to fund the remedial works. On 8 October 2007, the executive committee reviewed available funding for the remedial works, and noted that the tender had been distributed for consideration by builders. Again on 3 December 2007, the executive committee reviewed the remedial works project and the tender process, noting that the tenders received showed a large variation.

112 The proposed budget for the period January 2008 to December 2008 showed an increase of 23.7% in regular levy income for both administrative and sinking funds (excluding special levy), and special levy payments totalling $100,000. The budget for 2007 for the sinking fund had been $231,963.25 (although only $148,203.14 was actually spent), whereas the 2008 sinking fund budget was an amount of $1,180,000.00, significant new items including remedial works to balustrades ($745,000.00), remedial works general ($150,000.00), and remedial fire compliance works ($100,000.00). At the annual general meeting on 26 March 2008, the question of the special levy for balustrade and related remedial works was adjourned to an extraordinary general meeting pending an executive committee investigation on costs.

113 On the assumption that we are wrong in our conclusion that the respondent has not required Ms Hulena to comply with any relevant requirement or condition, and having regard to the overall financial position of the respondent, we are satisfied that the pedestrian access requirement in respect of route 3 is unreasonable. Notwithstanding decisions made by the respondent in relation to remedial works in the strata scheme, overall the respondent is in a fairly healthy financial position, and has not yet committed to any particular contracts in respect of the balustrade and related remedial works. We do not consider that the amount involved in modifying the three door openers on route 3 to make it accessible to Ms Hulena - approximately $16,247 plus $3,000 for power supply and ongoing maintenance of $990 per annum – would impose an inappropriate burden on the respondent’s financial position. Such modification works would in our view provide a less discriminatory option and accommodate the needs of Ms Hulena.

114 Thus, if contrary to our conclusion the pedestrian access requirement in respect of route 3 is a requirement imposed by the respondent, then it is a requirement which in our view would not be reasonable having regard to the circumstances of the case.

Whether the provision of the claimed services would impose unjustifiable hardship on the Respondent

115 Finally, the respondent contends that it would suffer unjustifiable hardship if it were required to provide to the applicant the changes to pedestrian access routes 1 to 3 described in Mr Evernden’s statement. For the reasons given, we do not consider that the respondent has imposed any relevant requirement or condition. However, if we are wrong in that view, we have indicated that we would consider the pedestrian access requirement in respect of route 3 as not reasonable having regard to the circumstances of the case. Accordingly, we now consider only whether the changes to route 3 would impose unjustifiable hardship on the respondent.

116 Section 49M(2) provides that nothing in s 49M renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. Section 49M(2) operates as an exception. Accordingly, the respondent bears the onus of proving unjustifiable hardship: s 104.

Section 49C provides that in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case 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.

117 The Tribunal has previously held, applying the decision of the High Court in The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR, that each of the factors listed in s 49C must be given weight "as fundamental elements in the decision making process": Moxon v Westbus Pty Limited [2000] NSWADTAP 12 at [61]; also Moxon (No 2) v Westbus Pty Ltd [2002] NSWADTAP 24 at [60-[63].

The nature of the benefit or detriment likely to accrue or be suffered by any persons concerned

118 In relation to s 49C(a), the benefit of modifying route 3 as proposed by Mr Evernden is that it will overcome the present difficulties which Ms Hulean experiences in seeking access to and from her apartment. That benefit would, in our view, be considerable.

119 Ms Hulena also submits that "all residents and other entrants will benefit from the provision of accessible entrances and exits, including to building 103, which is the building which contains the complex’s swimming pool". In this connection, Ms Hulena refers to Mr Johns’ evidence that "the current arrangements are not suitable for ‘disabled persons’" and to Mr Garnet’s evidence that there are "other frail or aged residents in the building". However, there was no evidence in relation to any other resident experiencing difficulty in accessing entrances to and exits from their apartments, let alone to Ms Hulena’s apartment, or in seeking to and experiencing difficulty accessing the complex’s swimming pool. Accordingly, such a benefit arising from the modification of route 3 is at its highest speculative, and would be given little if any weight.

120 In terms of detriment, the respondent refers to the cost of the modifications sought by Ms Hulena, and also to the evidence of Mr Evans that the proposed balustrade works have been approved by a special resolution of the executive committee, and would need to be rescinded in order for a decision to be made not to proceed with the balustrade works, and allocate the funds elsewhere. However, as we have indicated above in relation to reasonableness, we do not consider that the amount involved in modifying the three door openers on route 3 - approximately $16,247 plus power supply and ongoing maintenance– would impose an inappropriate burden on the respondent’s financial position. Overall the respondent is in a fairly healthy financial position: at the time of the alleged discrimination, the owners’ funds (including both administrative and sinking finds) totalled some $957,256.78. And as at the date of hearing, the respondent had not committed to any particular contracts in respect of the balustrade and related remedial works. Further, the evidence of both Mr Johns and Mr Garnet was that accessible arrangements could be put in place in respect of route 3 without the need for a development application.

The effect of the disability of a person concerned

121 The evidence of Ms Hulena’s neurologist Dr Garrick was that she has a chronic neurological disorder requiring lifelong management and regular review. It was not in dispute that Ms Hulena is unable to carry heavy parcels and has difficulty with the management of heavy doors. Ease of access by route 3 will allow her to continue to manage her own shopping and activities without the need of assistance from others.

The financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship

122 We have considered the financial circumstances and estimated amount of expenditure required to be made by the respondent in modifying access route 3 above.

Conclusions in relation to unjustifiable hardship

123 The concept of unjustifiable hardship requires a consideration of whether the hardship is of such a nature or degree as to be unjustifiable following a weighing of relevant factors. Further, it necessarily implies that some hardship is justifiable: Hills Grammar School v Human Rights & Equal Opportunity Commission [2000] FCA 658; (2000) 100 FCR 306 at [48]; Forest v Queensland Health [2007] FCA 936; (2007) 161 FCR 152 at [157].

124 In the present case, if we be wrong in our primary conclusion that the respondent has not imposed any relevant requirement or condition, then we would hold that the respondent has failed to establish that the modification of route 3 to make it accessible to Ms Hulena would impose upon it hardship of such a nature or degree as to be unjustifiable.

Conclusions and relief

125 We have concluded that Ms Hulena has failed to establish that the respondent required her to comply with a relevant requirement or condition, and hence that she has failed to satisfy all the elements of the definition of indirect discrimination on the ground of disability in s 49B(1)(b) of the AD Act. Our conclusion is that the so-called pedestrian access requirement was not imposed by a decision or practice of the respondent, but is a feature or incident of the design of a building which was erected prior to the adoption of minimum design requirements to enable access for people with disabilities which are contained in Australian Standards and which do not apply retrospectively. In reaching this conclusion, we considered ourselves bound to follow the decision of the majority of the High Court in State of New South Wales v Amery [2006] HCA 14; (2006) 80 ALJR 753 at [65]. We are also mindful that in reaching this conclusion we have departed from the approach previously suggested by the Tribunal in Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163. For this reason, in the event that we are wrong, we have endeavoured to set out our conclusions in relation to the remainder of Ms Hulena’s claim.

Order

The complaint is dismissed.