Owners Corporation OC1-POS539033E v Black  VSC 337
The Supreme Court of Victoria has handed down a decision that owners corporations must undertake modification works to apartment buildings for owners and occupiers with a disability. The decision has been hailed as a significant win for people with a disability.
The respondent, Anne Black, lives in an apartment which she has owned since December 2013. She is entitled to use the common areas in the apartment building as a member of the Owners Corporation (the applicants in this hearing).
In 2015, Ms Black developed disabilities which require her to use mobility aids such as a wheelchair or a scooter. She claimed that parts of the common areas including doors and a ramp to the car park were not suitable for her use and required modifications for her to be able to use them.
VCAT found in favour of the apartment owner
Ms Black applied to the Victorian Civil and Administrative Tribunal (VCAT) for remedies under the Equal Opportunity Act 2010 (Vic) (Act), including orders that the applicants modify the doors and ramp.
She alleged that the applicants had indirectly discriminated against her in breach of section 44 of the Act and had failed to make reasonable adjustments for her disability in breach of section 45. She also relied on section 56, which requires an owners corporation to make alterations to common property in certain circumstances.
The parties asked VCAT to answer a number of preliminary questions, including the following: "does the owners corporation provide a service to Ms Black for the purposes of s 44 having regard to Pt 4, Div 5 of the EO Act, including s 56?".
Senior Member Steele found that that the applicants did provide services to Ms Black, and that section 56 does not exclude the application of sections 44 and 45 to an owners corporation.
The question turned on whether Part 4, Division 4 (which included sections 44 and 45) applied to an owners corporation when the only section that mentions owners corporations in the EO Act is section 56 in Part 4, Division 5.
The Member held that both Division 4 and 5 applied to owners corporations. In summary, her reasons were that the EO Act is beneficial and remedial legislation which should be given a liberal construction, such that 'services' applies to the activities of owners corporations. This was influenced by, among other considerations, decisions by equivalent tribunals in Queensland and New South Wales that the term 'services' in the relevant anti-discrimination legislation covers the activities of owners corporations.
The respondent sought leave to appeal VCAT's decision in relation to its answer to question (a).
Victorian Supreme Court upheld VCAT decision
Justice Richards granted leave to appeal, finding that there was a real argument as to the correctness of VCAT's answer to the preliminary question and that the questions were, as a whole, questions of general and public importance which had not previously been considered by the Court. She further noted the participation of the Victorian Equal Opportunity and Human Rights Commission (Commission) as amicus curiae and found this demonstrated the significance of the questions.
Her Honour dismissed the appeal, finding that VCAT's decision involved no error of law in relation to the questions of law identified in the applicants' proposed notice of appeal.
Justice Richards found that the term 'services' should be given a wide meaning, given the general words in the definition (section 4 of the Act). Her Honour was also persuaded by the Commission's submission that the definition referred to 'access and use of any place that members of the public are permitted to enter', which would include common property such as driveways, stairs, paths, passages, lifts and lobbies.
As such, her Honour agreed with VCAT's conclusion that the applicants provided 'services' in respect of common property, specifically managing, administering, repairing and maintaining it, whether or not the common property may be used by the public.
Justice Richards also found that sections 44, 45 and 56 can all apply to an owners corporation in respect of its common property, and that they should apply according to their terms.
Her Honour found that there is nothing in the text of sections 44, 45 and 56 to suggest that they are to be construed as mutually exclusive protections. Rather, the statutory context suggests that they form part of a set of overlapping protections, designed to achieve the express purpose of eliminating discrimination and promoting equality.
She also found that section 32(1) of the Charter of Human Rights and Responsibilities 2006 (Vic) (Charter), which states that all statutory provisions must be interpreted in a way that is compatible with human rights, supports the conclusion that sections 44 and 45 should be given their ordinary meaning. This is because the right to equality in section 8 of the Charter includes the right to equal and effective protection against discrimination, and the statement of compatibility for the Act does not reveal any intention to reduce that protection.
This decision clarifies that owners corporations will be required to comply with sections 44, 45 and 56 of the Act in respect of common areas which are accessible to the public. This means that owners corporations will need to consider reasonable requests for modification by owners and occupiers with disabilities.
However, neither the Tribunal nor the Supreme Court dealt with whether Ms Black's requests were 'reasonable'. It will be interesting to see how the law on this point develops.
The full text of the Supreme Court's decision can be found here.
Yi-Ling Ng is a Graduate at Allens.