Jadon Place [2003] QBCCMCmr 559 (6 June 2003)

Last Updated: 12 September 2007

DJ ReardonREFERENCE: 0216-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11184
Name of Scheme:	Jadon Place
Address of Scheme:	31 Hooker Boulevard BROADBEACH QLD 4218

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Wilma Jaggers, a Co-owner of Lot 5 and an ordinary member of the Body Corporate Committee:

DJ ReardonI hereby order that within 7 days of the date of this order, the Body Corporate Secretary shall provide the Applicant with a full printed copy of the roll of lots and entitlements of the "Jadon Place" Body Corporate. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0216-2003

"Jadon Place" CTS 11184

1.	Order sought

The Applicant, a Co-owner of Lot 5, and an ordinary member of the Body Corporate Committee, has sought the following adjudicator’s order under the Body Corporate and Community Management Act 1997 ("the Act"), quote-

"That the Body Corporate of Jadon Place make available to me a copy of the current & up to date list of owners along with all relevant information currently appearing on the roll (addresses, phone numbers etc)."

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about--

(a)	a claimed or anticipated contravention of the Act or the community management statement; or
(b)	the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or
(c)	a claimed or anticipated contractual matter about--
(i)	the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or
(ii)	the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator’s order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

2.	Scheme details

The "Jadon Place" community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan) registered on 20 March 1981. A new community management statement for "Jadon Place" was recorded on 20 July 1999. The community management statement indicates that the Body Corporate and Community Management (Accommodation Module) Regulation 1997 ("the Accommodation Module") applies to the scheme.

"Jadon Place" consists of 16 lots and common property. However, it should also be noted that "Jadon Place" is the subject of a time-share arrangement, whereby each lot is owned by a number of people as tenants in common.

3.	Application details2n

This dispute resolution application was made on 1 April 2003. On 8 April 2003, a staff member of this Office contacted the Applicant on behalf of the Commissioner for Body Corporate and Community Management ("the Commissioner") and invited the Applicant to identify the respondent to the application. In a letter dated 8 April 2003, the Applicant requested that the application be amended to identify the Body Corporate as the other party to the dispute.

On 14 April 2003, the Commissioner invited the Committee for the Body Corporate to make a written submission about the application. The Commissioner extended the time for the Committee to make a written submission about the application on 29 April 2003.

The Secretary has made a submission about the application in response to the Commissioner’s invitation. I note that the Committee is split in its views on the merits of the application. However, I am prepared to accept the Secretary’s submission as a statement of the reasons of the apparent majority of the Committee for opposing the application, and supporting the Secretary’s decision to refuse to provide a copy of the roll to the Applicant. Accordingly, through this statement of reasons, I will refer to the Secretary’s submission as the Committee’s submission, albeit with the understanding that it is not a unanimous representation of the views of members of the Committee.

In accordance with section 246 of the Act (previously section 196), the Applicant requested, and was provided with, a copy of the Committee’s submission. The Applicant has made a written reply to the submission.

On 30 May 2003, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication. The Commissioner has referred the application to me for determination.

It is the normal practice of this Office to deal with applications concerning access to body corporate records expeditiously. The basis for this position is that these types of applications are normally very straightforward, and concern clear statutory rights. For similar reasons, I am also prepared to consider this application despite the fact that owners have not been given notice of the application individually, or been invited to make a submission about the application individually. As will be outlined in more detail below, owners and committee members have a statutory right to access records and documents of their body corporate. In my opinion, the issue to be resolved in this application is simply whether the Committee, as the administrative arm of the Body Corporate, has met the Body Corporate’s clear obligations regarding access to records. I do not consider that it is necessary for all owners to individually participate in the resolution of this question.

4.	Matters in dispute

Part 9 of the Accommodation Module sets out a number of administrative matters for bodies corporate, including requirements for bodies corporate to keep a number of rolls and registers. Section 142(1) of the Accommodation Module provides that bodies corporate must prepare and keep a roll of lots and entitlements ("the roll"), which must include information set out in section 142(2). The information that must be form part of the roll includes the names and addresses of the current owners of each lot included in the scheme.

Section 205 of the Act allows "interested persons" to inspect the records of a body corporate, or to obtain a copy of a record kept by a body corporate following a written request accompanied by the prescribed fee. In accordance with section 205(6) of the Act, "interested persons" include owners and mortgagees of lots included in the scheme, the buyer of a lot included in the scheme, or any other person who satisfies the body corporate of a proper interest in the information sought. Section 205(3) exempts a body corporate from providing access to parts of particular records, if the body corporate reasonably believes the part of the record contains defamatory material.

Section 149(1) of the Accommodation Module gives members of a body corporate committee a right of access to the body corporate’s records. Specifically, section 149(1) provides that "the body corporate must allow all members of its committee reasonable access (without payment of a fee) to the body corporate’s records." However, it should be noted that section 149(3) of the Accommodation Module goes on to state that "the body corporate is not required to allow a person access to records under this section if a legal proceeding between the body corporate and the person has started or is threatened and the records are privileged from disclosure."

The Applicant, a co-owner of a lot included in the scheme, and an ordinary member of the Body Corporate Committee, wishes to obtain a copy of the Body Corporate roll. It is evident that the majority of the Committee wish to prevent the Applicant from obtaining a copy of the roll for the reasons outlined in its submission. I will consider these issues below.

5.	Determination

I have carefully reviewed the Committee’s submission in relation to this application. The Committee’s key objections to the application are:

•	The Committee considers that the Applicant has not properly requested a copy of the roll.
•	The Committee claims that the provision of the roll may constitute a breach of privacy principles.
•	The Committee considers that the Applicant will "harass" owners with unwanted correspondence and documents if provided with a copy of the roll.
•	The Committee states that many owners have indicated to the Secretary that they do not want their details as recorded on the roll made available to the Applicant.
•	The Committee states that section 149(3) of the Accommodation Module may apply, exempting disclosure of the roll on the basis of a threatened legal proceeding.

Validity of request

I do not consider that there is any merit in the Committee’s arguments concerning whether or not the Applicant has properly requested a copy of the roll. As a committee member, the Applicant is entitled to reasonable access to the roll, without payment of a fee (section 149(1) of the Accommodation Module). I note that a written request is not a pre-requisite to a committee member’s right to access documents under section 149(1). I consider it is sufficient to note that the Secretary has been aware of the Applicant’s desire to obtain a copy of the roll since at least 20 February 2003. This is apparent from a letter dated 20 February 2003 to the Body Corporate Chairperson in which the Secretary outlines his concerns regarding allowing the Applicant (and others) to obtain a copy of the roll.

Privacy

The Committee has argued that Commonwealth privacy legislation and principles may exempt the Body Corporate from providing the roll to the Applicant. However, the Committee has provided no references to any authority, judicial or legislative, to support this argument.

Rather, the Committee invites the Commissioner and I to research, and seek Crown Law advice on whether or not privacy principles may support the Committee’s decision to refuse to provide the Applicant with a copy of the Body Corporate roll. This is not the role of either an adjudicator, or the Commissioner. While adjudicator’s have particular investigative powers, in my opinion, it is the responsibility of parties to an application to prepare and present their own arguments in support of the outcome they are seeking. It is not sufficient for a party to raise broad concepts without citing relevant authorities, with an expectation that the Commissioner or an adjudicator will research and verify whether or not these issues are relevant to the party’s argument. In my view to suggest that the Commissioner, or an adjudicator, should effectively put a party’s case together for them is patently unfair to the other party to the dispute.

Notwithstanding the above, I note that section 3 of the Privacy Act 1988 (CTH), provides that "It is the intention of the Parliament that this Act is not to affect the operation of a law of a State or of a Territory that makes provision with respect to the collection, holding, use, correction, disclosure, or transfer of personal information (including such a law relating to credit reporting or the use of information held in connection with credit reporting) and is capable of operating concurrently with this Act."

I also note that Principle 2.1(g) of the National Privacy Principles provides that "an organisation must not use or disclose personal information about an individual for a purpose other than the primary purpose of collection unless the use or disclosure is required or authorised by or under law."

In light of the above, and in the absence of any reference to specific arguments or authorities from the Committee, I am not convinced that the provision of the body corporate roll to the Applicants in accordance with the Act is inconsistent with the provisions of the Commonwealth privacy legislation.

Harassment

I also consider that there is little merit in the Committee’s arguments that the Applicants should be prevented from accessing the roll as they may use the information to write to other owners about body corporate issues. While the Committee may disagree with the Applicant’s views on matters, it seems to me that owners and committee members should be able to write, at their own expense, to other owners about body corporate matters. Upon receipt of this type of material owners are always free to disregard it if they choose. If owners consider that a statement made in this type of correspondence is defamatory, then they should exercise their legal rights of redress. I note that it appears that the Secretary has previously distributed correspondence to owners expressing his views on body corporate issues. I see no reason why other owners and committee members should be prevented from exercising this same privilege.

Owners do not want their details distributed

The legislation provides no discretion for owners to withhold details recorded on body corporate records from other owners or committee members exercising their statutory right to inspect and obtain copies of body corporate records.

Threatened legal proceeding

Finally, the Committee has sought an exemption from providing the Applicant with a copy of the roll on the basis of section 149(3) of the Accommodation Module. I find the Committee’s references to a "threatened" defamation action vague, and it is unclear whether the Body Corporate is even proposed as a party to the action. More importantly, the Committee has explained no basis for why the roll of the Body Corporate would be privileged from disclosure in the context of such an action. Again the Committee invites the Commissioner to research and seek advice on whether the Committee is able to rely on section 149(3). For the same reasons outlined above in respect of privacy issues, I do not consider that this is the role of the Commissioner or an adjudicator.

In the absence of an explanation from the Committee of how the roll is privileged, I do not accept that section 149(3) applies in this instance.

6.	Conclusion

For the reasons outlined above, I consider that the Applicant is entitled to a copy of the Body Corporate roll. I am not satisfied that the Committee has demonstrated that the Applicant’s statutory right should be denied in this instance.

In the circumstances, I have ordered that the Body Corporate Secretary provide a copy of the roll to the Applicant. I trust that this order will be carried out within the time frame specified, and that the Applicant will not be further delayed in exercising her right to obtain a copy of the roll. If any owners disagree with this decision, then they should investigate, and exercise their rights to appeal this decision.