Moxon -v- Westbus Pty Ltd [2001] NSWADT 159

CITATION: Moxon -v- Westbus Pty Ltd [2001] NSWADT 159 DIVISION: Equal Opportunity Division APPLLICANT John Moxon PARTIES: RESPONDENT Westbus Pty Ltd FILE NUMBER: 001098 HEARING DATES: 14, 15, 16/05/2001 SUBMISSIONS CLOSED: 05/16/2001 DATE OF DECISION: 09/24/2001

BEFORE: Bartley R - Judicial Member; McDonald O - Member; Strickland J - Member APPLICATION: Disability Discrimination - Goods and Services MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Druett and Cooper (NSW) 2000 HREOC 17.4.2000 CASES CITED: Langtry v Niland (1981) 2 NSWLR 107/108 Scott v Telstra Corporation Ltd (1995) A & NZ Equal Opportunity Law Practice 92-717 APPLICANT REPRESENTATION: J Griffiths, barrister RESPONDENT C Ronalds, barrister ORDERS: Complaint dismissed.

1 On 5th April l997 Mr John Moxon (the Complainant) made the following complaint to the President of the Anti-Discrimination Board against Westbus Pty Ltd (the Respondent). 2 The Complaint stated: I wish to lodge a complaint on my own behalf against Westbus in relation to the bus service it offers to the public. As a person with a disability, which requires that I use a wheelchair, I am unable to independently access and/or fully utilise the bus service offered by Westbus. On 29 March, 1997 at approximately l.10 p.m. at Parramatta Railway Station (Darcy Street) I attempted to board a Westbus vehicle No MO 7973 which carried a sign indicating that it would be going on Route 600 to Knightsbridge via Rogans Hill. I was informed by the driver, Avon, that the bus had no ramp, hoist or other device, which would enable me to board. Avon also stated that no Westbus has such facilities. When asked if that mean that I am unable to use any of Westbus buses he replied 'yes' On 3 April l997 at approximately 2.40 p.m I telephoned Westbus and spoke with a person who gave her name as 'Daniela' who confirmed that Westbus has no buses that provide access for people who use wheelchairs. Until independent access is provided I cannot use any Westbus bus. The failure of Westbus to provide access which would allow me to independently use the buses prevents me from enjoying my right to fully participate in the community. By not providing access Westbus is clearly discriminating against me on the basis of my disability in contravention of the Anti-discrimination Act 1977. I would therefore like Westbus to install access facilities, which will enable me to use and enjoy the bus services to the same extent individuals who do not have mobility disability. I am able to be contacted by writing to the above address. 3 A copy of the complaint was sent to the respondent on 7th April l997 4 The Complaint was based on section 49M and 49C of the Anti-Discrimination Act 1997. 5 Section 49M provides: (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms in which he or she provides the person with those goods or services (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of goods and services would impose unjustifiable hardship on the person who provides the goods or services. 6 Section 49C states what constitutes unjustifiable hardship. It provides: In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into accounting including: (a) the nature of the benefit or detriment likely to accrue or be suffered by any person 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 7 This Tribunal on 21st September l999 found that whilst Westbus Pty Ltd had indirectly discriminated against the Complainant on the grounds of disability, the Respondent had not breached the Anti-Discrimination Act 1997 because the respondent had made out the defence of unjustifiable hardship 8 The Tribunal dismissed the Complaint. 9 The Complainant lodged an appeal against the decision on 25th July 2000 and having heard the appeal, the Appeal Panel, in allowing the appeal made the following orders: (i) The Appeal is upheld. (ii) The decision of the Tribunal made on 21st September 1999 that West Bus Pty Ltd has made out the defence of 'unjustifiable hardship' under section 49M(2) of the Anti-Discrimination Act 1977 is set aside. (iii) This aspect of the case is remitted to be heard and decided by the Tribunal as originally or similarly constituted (iv) No order as to costs 10 Each Party is in agreement that all the findings of the Tribunal made at the earlier hearing stand except the finding that the Complaint be dismissed on the grounds the Respondent had made out the defence of unjustifiable hardship under s 49M(2) of the Act. 11 Each party agreed that the proof of the exception lay on the Respondent due to the operation of s 109 of the Anti-Discrimination Act 1977. 12 At the hearing additional evidence was submitted in respect of the present factual situation concerning bus routes 600, 606 and 607 and the finances of the Respondent. The Tribunal accepts the submission of the Respondent that the Complaint (if it did apply generally) had been narrowed to only bus routes 600, 606 and 607 13 Counsel for the Respondent submitted that the time for assessing the defence of unjustifiable hardship was the date of the Complaint, 5th April l997. Further that any new evidence tendered to this hearing unrelated to the 'justifiable hardship 'issue should only be considered in deciding what orders the Tribunal would make if it found the 'justifiable hardship' issue not made out, and on that basis the Complaint was proved. 14 Counsel for the Complainant has submitted that the material that was before the Tribunal has been substantially updated by each party and that there is no real doubt that the Tribunal is under a legal obligation to have regard to that fresh material now in determining whether or not the defence of unjustifiable hardship is made out at the relevant times; not just April l997 but ongoing until today. It was submitted that the complaint was an ongoing complaint, that until a remedy is provided for the discriminatory conduct about which the Complainant has complained he is still being discriminated against until the discriminatory conduct is removed. 15 Each party agreed that the fresh evidence tendered to the Tribunal at this hearing could be taken into account in deciding the kind of orders the Tribunal would make if it found the Complaint proved. 16 The Tribunal has considered the written and oral submissions made by the parties and finds that the relevant time the Respondent has to prove the exception in s 49(2) is April l997 (the date of the complaint): See Druett and Cooper (NSW) 2000 HREOC 17.4.2000 para 11: Langtry v Niland (1981) 2 NSWLR 107/108. 17 The Respondents have tendered sensitive business records as part of their defence of unjustifiable hardship. The Tribunal has issued a permanent suppression order in respect of this material. In this decision we propose to follow the method adopted for similar suppressed material in Scott v Telstra Corporation Ltd (1995) A & NZ Equal Opportunity Law Practice 92-717 at p 78401.