Seachange Retirement Village Management Pty Ltd
[2022] QCAT 246
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- Seachange Retirement Village Management Pty Ltd[2022] QCAT 246
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Seachange Retirement Village Management Pty Ltd[2022] QCAT 246
Seachange Retirement Village Management Pty Ltd[2022] QCAT 246
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Seachange Retirement Village Management Pty Ltd [2022] QCAT 246 |
PARTIES: | seachange retirement village management pty ltd (applicant) |
APPLICATION NO/S: | ADL052-20 |
MATTER TYPE: | Anti-discrimination matters |
DELIVERED ON: | 5 July 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: | The application is dismissed. |
CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION LEGISLATION – where the applicant seeks an exemption from the operation of a specified provision of the Anti-Discrimination Act 1991 (Qld) – whether application brought prematurely – who application brought on behalf of Anti-Discrimination Act 1991 (Qld), s 113 Body Corporate and Community Management Act 1997 (Qld), s 180 Retirement Villages Act 1999 (Qld), s 28A, s 40D Boeing Australia Holdings Pty Ltd and related entities [2003] QADT 21 Downer EDI Mining [2013] QCATA 276 Emmetlow Pty Ltd v Pomroy and Ors [2013] QCATA 186 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]The matter before me is an application for an exemption from the operation of certain provisions of the Anti-Discrimination Act 1991 (Qld) (‘the AD Act’).
- [2]The application filed on 18 August 2020 lists a single applicant: Seachange Retirement Village Management Pty Ltd (‘Seachange Management’).
- [3]Seachange Management is the scheme operator of a registered retirement village scheme under the Retirement Villages Act 1999 (Qld) (‘the RV Act’). The registered retirement village scheme is located at Caloundra and is referred to in the material as ‘the Seachange Complex’.
- [4]The material before me indicates that the Seachange Complex concurrently operates as:
- (a)a registered retirement village scheme under the RV Act, with Seachange Management as the scheme operator; and
- (b)a registered community titles scheme under the Body Corporate and Community Management Act 1997 (Qld) (‘the BCCM Act’), known as Seachange Retirement Village CTS 36068 (‘the Seachange Body Corporate’).
- (a)
- [5]There is evidence of an ‘intention’ that the Seachange Complex be de-registered as a retirement village scheme and remain as a body corporate. There are a number of reasons for this, which relate to difficulties in complying with amendments to the RV Act. However, the most recent evidence before me indicates that the Seachange Complex continues to remain registered as a retirement village scheme.
- [6]Seachange Management has applied for an exemption under s 113 of the AD Act such that it may lawfully place an age restriction on individuals who may purchase, rent or reside in the Seachange Complex.
- [7]In my view, the application is misconceived in two respects.
The application is not currently necessary
- [8]In Downer EDI Mining [2013] QCATA 276 at [21]-[22], the Appeals Tribunal set out the approach to be adopted in considering an application for an exemption as follows:
In considering such an application the Tribunal must first consider whether an exemption is necessary. If the Tribunal is satisfied the exemption is necessary it then considers whether the exemption is appropriate and reasonable, whether there are other non-discriminatory ways of achieving the purpose, whether the exemption is in the community interest and whether other persons or organisations support the application.
Whether the exemption is necessary will firstly rest on whether there are any specific defences or specific or general exemptions already legislated for in the Act and whether those existing exemptions can be applied to the facts surrounding the proposed exemption.
[footnotes omitted]
- [9]I note that this approach is consistent with that taken by President Walter Sofronoff QC of the Anti-Discrimination Tribunal (as he then was) in Boeing Australia Holdings Pty Ltd and related entities [2003] QADT 21 at [13].
- [10]While the Seachange Complex remains as a registered retirement village scheme, the exemption is not necessary. Section 26 of the RV Act provides:
Despite the Anti-Discrimination Act 1991, it is not unlawful for a scheme operator to discriminate on the basis of age if the discrimination merely limits residence in a retirement village to older members of the community and retired persons.
- [11]In my view, unless and until the Seachange Complex ceases to be a registered retirement village scheme to which s 26 of the RV Act applies, any application for exemption is premature.
- [12]For completeness, I will deal with the following submission made by Seachange Management:
[T]he residents of Seachange unanimously agreed to de-register as a retirement village scheme once the exemption sought is granted. This is for no other reason than to protect the interests of Seachange’s residents by ensuring there is no loss in continuity with respect to the ability of Seachange to allow only those over 50 to reside in the scheme. De-registering before the exemption is granted would jeopardise the rights which we seek to protect and may materially disturb the circumstances which are the basis for the application. We submit that this is both a practical and reasonable approach to take in the circumstances.
- [13]With respect, this submission overlooks the provisions of the RV Act relating to the de-registration of a retirement village scheme.
- [14]Section 28A(1) of the RV Act provides that the chief executive may de-register a retirement village scheme in the following circumstances:
- (1)This section applies if the chief executive reasonably believes that either—
- (a)a scheme operator is implementing an approved closure plan for a retirement village scheme; or
- (b)a retirement village scheme is no longer operating.
- (2)The chief executive may, by written notice (a deregistration notice) given to the scheme operator, deregister the scheme …
- [15]The requirements for an approved closure plan are set out in s 40D of the RV Act, which relevantly provides:
- (1)A proposed closure plan may be approved—
- (a)by the residents, by a special resolution at a residents meeting; or
- (b)on application under subsection (3), by the chief executive.
- (2)If the proposed closure plan is approved under subsection (1)(a), the scheme operator must give the chief executive a copy of the approved closure plan within 14 days of the vote.
…
- [16]The evidence before me is that a resolution of Seachange Management was unanimously passed on 24 April 2020 in the following terms:
- (a)The Shareholders agree that the Shareholders intend to deregister Seachange Retirement Village as a retirement village in accordance with section 28A of the Retirement Villages Act 1999 (Qld).
- (b)The Company, on behalf of the Shareholders, will apply to QCAT to seek exemptions …
- (c)Subject to the Company receiving a grant of the exemptions in accordance with Item (b), the Shareholders agree to deregister Seachange Retirement Village as a retirement village in accordance with section 28A of the Retirement Villages Act 1999 (Qld) in the manner set out in the explanatory memorandum circulated with this resolution.
- (d)Subject to the Company deregistering Seachange Retirement Village as a retirement village, that the Shareholders agree to voluntarily deregister the Company by lodging an application with ASIC and paying the requisite application fee.
- [17]There is no evidence before me that an approved closure plan was given to the chief executive within 14 days of the resolution dated 24 April 2020.
- [18]Accordingly, there is no evidence of any proceedings currently on foot that could lead to the de-registration of the Seachange Complex as a retirement village scheme. At best, the shareholders of Seachange Management have evinced an intention to make an application for approval of a closure plan if they can be satisfied that certain exemptions to the AD Act will be forthcoming. De-registration would in any event be subject to a decision by the chief executive.
- [19]In Emmetlow Pty Ltd v Pomroy and Ors [2013] QCATA 186 at [13], the Appeals Tribunal stated:
[I]n the absence of a concrete dispute, the questions raised … are hypothetical. There is considerable authority that a declaratory power, flexible as it is, does not usually warrant the expression of advisory opinions on hypothetical questions. “Declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions”. There must be evidence and factual findings, and a “conclusive or final decision based on a concrete and established or agreed situation” before discretionary relief is granted. Those requirements are not satisfied in this case. The pressure upon the Tribunal’s already-stretched resources would be intolerable if were to become a bureau for legal advice and advisory decrees.
[footnotes omitted]
- [20]Regrettably, despite the application having proceeded in the Tribunal for nearly two years, Seachange Management has not crystallised issues that can be properly decided. While it may wish to have the reassurance of a favourable outcome from the Tribunal before crystallising those issues, there are good policy reasons why this should not occur.
The role of the body corporate
- [21]The other difficulty with the application for an exemption is that it is made by Seachange Management, and seeks exemptions which would be granted to Seachange Management.
- [22]If the retirement village scheme is de-registered, the Seachange Complex would continue as a community title scheme registered under the BCCM Act. Seachange Management would have no role under the BCCM Act. As noted in paragraph (d) of the resolution passed on 24 April 2020, it is proposed that Seachange Management would be de-registered as a company.
- [23]It seems to me that there would be no utility in granting an exemption to an entity which it is proposed would cease to exist.
- [24]Section 113 of the AD Act permits an application to be made on behalf of another person or other people. While the orders sought in terms relate to exemptions for Seachange Management, I note that the application is expressed to be made on behalf of:
- (a)each resident of the body corporate personally;
- (b)any future resident; and
- (c)any employee, agents or contractors acting on behalf of the body corporate for Seachange.
- [25]However, this list of persons does not include the Seachange Body Corporate itself.
- [26]Seachange Management submitted that the exemption would be given effect to as follows:
The residents of Seachange intend to incorporate the exemption granted into Seachange’s body corporate Community Management Statement which is recorded on each resident’s title.
- [27]Given this proposed mechanism, it seems to me that the correct holder of any exemption would necessarily be the Seachange Body Corporate. As noted above, no application for an exemption has been made on behalf of the Seachange Body Corporate, nor is there any evidence that Seachange Body Corporate has authorised Seachange Management to make this application on its behalf.
- [28]For completeness, there is also no evidence before me that Seachange Body Corporate has passed the necessary resolutions to authorise the incorporation of the exemptions into its community management statement or by-laws. I note in passing that s 180(4) of the BCCM Act provides:
- (4)A by-law can not prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.
Examples— …
2 A by-law can not prevent the sale of a lot to a person under or over a particular age.
- [29]Without deciding this issue, I observe that s 180(4) may well present an obstacle to imposing an age restriction on the sale of lots in any event.
Disposition
- [30]The application is dismissed.