Case Notes ~ Discrimination in Owner Corporation Rules

Honeybrook v Owners Of Units Plan 836; Frogbott Pty Limited v Owners Of Units Plan 836 (Discrimination and Unit Titles) [2023] ACAT 2 (Appeal) [2023] ACAT 4

The applicant was a lot owner and operator of a physiotherapy practice that provided services to disabled clients. He argued both he and his clients were discriminated against because clients with a disability had difficulty accessing his premises by reason furniture placed outside various units in the colonnade leading to his place of business.

Section 8(3) of the Discrimination Act 1991 (ACT) provides that a person indirectly discriminates against another

 “if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.”

The primary issue turned on whether the applicant was a person with a protected attribute and was, therefore, disadvantaged. The Tribunal found that the applicant did not prove that the alleged condition or requirement had the effect of disadvantaging him because he (as distinct from his clients) was not a person with a protected attribute.

In examining the application of the Discrimination Act the Tribunal stated:

“The applicant had not proved that there is a condition or requirement that has been imposed by the respondent that has the effect of disadvantaging the applicant … because the other person has one or more protected attributes (section 8(3)). This element of causation is pivotal to the Discrimination Act ….”

Putting aside the issue of discrimination, the Tribunal still ordered the removal of the furniture from the colonnade. The Tribunal found that the colonnade is common property and unit owners placing furniture in the colonnade unreasonably interfered with the use and enjoyment of the common property by owners, occupiers, or users of other units, particularly the applicant’s unit. The placement of the furniture was in breach of default rule 1.7 in Schedule 1 of the Unit Titles (Management) Regulation 2011.