CITATION: Bradley -v- State of New South Wales (No.2) [2003] NSWADT 94 DIVISION: Equal Opportunity Division APPLICANT PARTIES: David Bradley RESPONDENT State of New South Wales (Attorney-General's Department) FILE NUMBER: 25 of 1998 HEARING DATES: 20/06/2002, 21/06/2002, 05/11/2002 SUBMISSIONS CLOSED: 01/02/2003 DATE OF DECISION: 05/07/2003 BEFORE: Hennessy N - Magistrate (Deputy President); Lau L - Member; Mooney L - Member APPLICATION: Disability Discrimination - Goods and Services MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Evidence Act 1995 Bradley -v- State of New South Wales [2002] NSWADT 11 Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 Maunsell v Olins [1975] AC 373 Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5 Bonella & ors -v- Wollongong City Council [2001] NSWADT 194 Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26 Scott & Anor v Telstra Corporation Limited (1995) EOC 92-717 Waters v Public Transport Corporation (1991) EOC 92-39057 Waters v Public Transport Corporation (1991) EOC 92 390 Price v The Civil Service Commission (1977) IRLR 291 The Australian Public Service Association v The Australian Trade Commission (1988) EOC 92-228 CASES CITED: Styles v The Secretary of the Department of Foreign Affairs and Trade & Anor (1988) EOC 92-239 Speering v Minister of Education (1993) EOC 92-513 Byham v Preston City Council (1991) EOC 92-377 Beu v PR Exhibitions Pty Ltd [1997] QADT 13 Waters & Ors v Rizkalla & Anor (1990) EOC 92-282 Mills v Meeking (1990) 91 ALR 16 Wollongong City Council v Bonella [2002] NSWADTAP 26 Commonwealth Bank v Human Rights and Equal Opportunity Commission ('Finance Sector Union Case') (1997) 150 ALR 1 Moxon v Westbus Ltd (No 1) [2000] NSWADTAP 12 Moxon v Westbus Ltd (No 2) [2002] NSWADTAP 24 March v Stramare (1991) 171 CLR 506 Alexander v Home Office [1998] 1 WLR 968 APPLICANT REPRESENTATION: In person RESPONDENT C Ronalds, barrister ORDERS: 1. The complaint is substantiated; 2. The respondent is to pay the complainant damages in the sum of $6,379.00. Introduction 1 This is the Tribunal's second decision involving Mr Bradley's complaint of disability discrimination under the Anti-Discrimination Act 1977 (AD Act). In Bradley -v- State of New South Wales [2002] NSWADT 11 (the first decision) the Tribunal refused the respondent's application for the complaint to be dismissed pursuant to s 111 of the AD Act. These reasons relate to Mr Bradley's substantive complaint. 2 On 13 March 1998, the President of the Anti-Discrimination Board (ADB) referred a complaint from Mr Bradley to the Tribunal under s 94(1) of the AD Act. The complaint alleged discrimination on the ground of disability in the provision of goods and services. 3 Mr Bradley has a hearing impairment. It was not in dispute that he was a party to proceedings in the Supreme Court in February, March and April 1996 which were presided over by Master McLaughlin. Mr Bradley's application under the Family Provision Act 1982 was for the right to reside in his deceased mother's home unit. The basis for his application was his poor health and impecunious financial situation. Ultimately the Supreme Court made an order in Mr Bradley's favour. 4 Mr Bradley alleges that he was discriminated against on the ground of his disability because the respondent failed to provide him with Assistive Listening Systems (ALSs) such as audio loop listening systems or infra red listening systems to assist him to hear the proceedings. He alleges that he and/or his legal representative asked for a suitable ALS to be provided but none was provided. He also alleges that suitable ALSs were available at the time and should have been provided to him on request. 5 In the first decision at [19] and [22] the Tribunal decided that because Master McLaughlin was performing judicial functions in the exercise of the court's jurisdiction, he is protected from civil liability by the principle of judicial immunity. Relevant legislation 6 The substantive provision on which Mr Bradley relies is s 49M of the AD Act. That section provides that disability discrimination is unlawful in relation to the provision of goods and services and provides an exception where the provision of the goods or services would impose unjustifiable hardship on the respondent. Section 49M states that: (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on 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 the goods or services would impose unjustifiable hardship on the person who provides the goods or services. 7 "Services" are defined in s 4 to include: (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not. 8 What constitutes discrimination on the ground of disability is set out in s 49B. So far as is relevant to these proceedings, that section provides that: (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) . . . (3) . . . (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability. Evidence and findings 9 Mr Bradley, Mr McEncroe (Mr Bradley's solicitor in the Supreme Court proceedings) and Mr Cameron (Mr Bradley's counsel in the Supreme Court proceedings) gave oral evidence in the applicant's case. Mr Castellan, Deputy Chief Executive Officer of the Supreme Court, gave oral evidence for the respondent. Mr Bradley's documentary evidence in this case consisted of: a) Report from the President of the Anti-Discrimination Board; b) Statement of David Bradley filed on 14 January 1999; c) Further statement of David Bradley filed on 20 July 2001; d) Further statement of David Bradley filed on 11 April 2002; e) Sydney Hospital Emergency Department Clinical Records dated 29 February and 9 April 1996; f) Statement of John McEncroe (solicitor for Mr Bradley) filed 14 January 1999; g) Statement of R.W. Cameron (counsel for Mr Bradley) filed 14 January 1999; h) Statement of Denis Wakefield filed 20 January 1999; and i) Letter from Catherine Brown dated 26 April 1996. 10 Not all the material in these statements and correspondence was admitted into evidence. 11 The documentary evidence of the respondent consisted of: a) NSW Government Disability Policy Framework, a five year strategy for action: A Green Paper for Public Comment, NSW Government June 1997; b) statement of Ms J Smith dated 17 March 1999; c) two call over sheets from Supreme Court dated 25 October 1995 and 25 November 1995 respectively; d) transcript of proceedings in the Supreme Court on 29/2/96, 1/3/96, 9/4/96, 10/4/96, 11/4/96, 18/7/96 and 25/7/96; e) judgements in Supreme Court of NSW Equity proceedings David Geoffrey Bradley v Helen Anne Deller – Estate of Iris Patricia Bradley and Anor Proceedings No 2339 of 1992; judgments of Master McLaughlin of 18/7/96, 18/7/96 and 25/7/96; f) bundle of documents - respondent's list of documents (No 2); and g) statement of John Castellan dated 11 March 1999. 12 Mr Bradley's disability. Mr Bradley has a number of disabilities including a hearing loss in each ear. He was prescribed a hearing aid for each ear in 1994. In April 1995, he was diagnosed with having an acoustic neuroma. Mr Bradley gave evidence that he is assisted by audio loop listening systems and infrared listening systems. He said that where these types of ALSs have been installed, he is able to hear clearly more than 80% of the time. 13 Communications prior to Supreme Court proceedings. Mr Bradley gave evidence that prior to the Supreme Court proceedings, he was aware that the Supreme Court had ALSs. He says he became aware of that fact through a publication entitled "Access PALS (Places with Assistive Listening Systems)" produced by an organisation called Self Help for Hard of Hearing People (SHHH). That publication provides a contact phone number at the Downing Centre in Liverpool Street, Sydney. 14 In February 1996 Mr Bradley telephoned the number at the Downing Centre. He said he inquired as to whether the courtroom allocated for the hearing would contain an ALS to accommodate his hearing impairment. Mr Bradley says that the officer he spoke to said words to the effect of "I do not know if any of these types of facilities exist. I will make some inquiries." Mr Bradley left his contact details with this officer but the officer did not get back to him. 15 Mr Bradley then rang the Supreme Court switchboard and asked which courts were fitted with ALSs. He says that nobody he spoke to knew anything about such facilities. 16 Mr McEncroe, Mr Bradley's solicitor, gave evidence that during the week prior to the hearing he phoned the Court's Administration Office, which was located at the Downing Centre. He inquired about ALSs to assist Mr Bradley. Mr McEncroe's evidence was that the officer who answered his call said words to the effect of "That equipment exists, but its whereabouts is not known." Mr McEncroe understood from this conversation that any search for the equipment would be fruitless. 17 On the day of the hearing, prior to the commencement of the proceedings, Mr Bradley's solicitor, in the company of Mr Bradley, asked the court officer outside the courtroom whether there was any audio loop system available to assist Mr Bradley. Mr Bradley and Mr McEncroe gave evidence that she replied that she was not aware of any such system installed in any courtroom. 18 Jennifer Smith, the court officer who Mr Bradley's solicitor approached that day, said in her statement of 17 March 1999 that she said to Mr Bradley "I too have a hearing impairment. As far as I know the court room does not have anything but I will make inquiries when I have a chance." Ms Smith says she did not have a chance to follow up Mr Bradley's inquiry that day, but later asked Jan Melit, an administrative assistant, whether any ALSs were available. Ms Smith said that Ms Melit told her that she did not know whether anything was available. Ms Smith said that she conveyed that information to Mr Bradley, Mr McEnroe and Mr Cameron. 19 Mr Castellan, the Deputy Chief Executive Officer of the Supreme Court, gave evidence, the effect of which was that he knew in February 1996 that equipment to assist litigants with a hearing impairment was available. That equipment was kept in the Downing Centre with Reporting Services Branch. It was not located in the Supreme Court itself. He does not know why it was not made available to Mr Bradley. Mr Castellan had obtained hearing devices from the Downing Centre to assist two hearing impaired judges prior to 1996. His understanding was that it was Jan Melit's job to provide the equipment when requested. She was the person who had the role of co-ordinating the courts on a day to day basis. 20 Mr Castellan said "Ms Melit would have been aware of where the equipment was and how to obtain it." He said he would have expected her to make the arrangements for the equipment to be installed. He would also have expected that Ms Smith would have ensured that Mr Bradley's request for assistance was followed up on the same day it was made. 21 We accept the evidence from both the applicant's and the respondent's witnesses, none of which was in conflict in any material sense. 22 Attendance at the hearing. Mr Bradley attended court on 29 February, 1 March, 9 April, 10 April and 11 April 1996 without the benefit of Audio Loop or Infra Red Assistive Listening Systems. Mr McEncroe advised Master McLaughlin at the commencement of proceedings on 29 February 1996 that Mr Bradley was severely hearing impaired. The Master gave permission for Mr Bradley to sit at the bar table during proceedings. According to Mr McEncroe, Mr Bradley sat beside him or just behind him throughout the proceedings. Again, we accept this evidence. 23 The initial question for the Tribunal is whether the treatment outlined above constitutes a breach of the AD Act. Application of legislation 24 In order to establish that the respondent has breached s 49M, Mr Bradley must establish, among other things, that: * he has a disability within the meaning of that term in s 4 of the AD Act; * the respondent is providing Mr Bradley with a service within the meaning of that term in the AD Act; and * that the respondent either refused to provide Mr Bradley with those services or provided those services on certain terms. 25 Disability. The respondent did not dispute, and we find, that Mr Bradley has a disability within the meaning of that term in s 4 of the AD Act. 26 Provision of services. In our first decision at [46] to [54], we examined the issue of whether the respondent was providing services to Mr Bradley and if so, how those services should be characterised. We concluded at [53] that ". . . the services being provided to Mr Bradley and other litigants in the Supreme Court, can be characterised as access to facilities, equipment and administrative support which allows parties to proceedings to participate in and contribute to the process by which their case is resolved judicially." 27 The respondent did not submit that the Tribunal had incorrectly characterised the services it provided to Mr Bradley and other litigants, and we adopt the reasoning and conclusion given in our first decision. 28 Refusal of service or provision of service on certain terms. The next question is whether, in accordance with s 49M, the respondent either refused to provide Mr Bradley with those services or provided those services on certain terms. The respondent submitted that although there was a failure to provide an available 'service', that failure arose from a request to the wrong place or the wrong person or by that person not being sufficiently familiar with the available resources and so not making them available. The respondent submitted that a 'refusal' means that there was a specific act of denial and that did not occur in this case. 29 We do not agree with the respondent's submission that no request was made to the appropriate person or at the appropriate place. The respondent's own evidence was that the equipment was kept in the Downing Centre and that Ms Melit was the person responsible for the provision of the equipment. Enquiries were made at the Downing Centre and the request eventually reached Ms Melit. 30 The Macquarie Dictionary, 3rd edition, The Macquarie Library, relevantly defines "refuse" to mean "to decline to give; deny (a request, demand, etc)". Words in the legislation must be given their plain and ordinary meaning unless the contrary is shown. (Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 per Dixon J at 647; Maunsell v Olins [1975] AC 373 per Lord Reid at 382.) A failure to provide equipment for whatever reason, amounts to a declination or denial of the request and constitutes a refusal to provide Mr Bradley with an aspect of the service as defined above. 31 In addition, the respondent's failure to provide Mr Bradley with the equipment he requested amounts to providing the service on certain terms. The services provided to Mr Bradley were on the terms that he participate in the proceedings without access to an ALS. 32 The respondent made submissions in relation to the treatment of Mr Bradley by Master McLaughlin and the legal representatives for both parties, while the hearing was being conducted. That treatment is not part of the "services" provided by the respondent. 33 "On the ground of" disability. Having decided that the respondent's treatment meets the elements set out above, the next question is whether the treatment constitutes discrimination "on the ground of disability" as defined in s 49B. For the respondent's treatment of Mr Bradley to be "on the ground of" disability, his disability must have been at least one of the reasons for that treatment, even if it was not the dominant or a substantial reason. (See s 4A.) The test is not that "but for" Mr Bradley's disability, the services would not have been refused or provided on the terms outlined above, the question the Tribunal must ask is whether Mr Bradley's disability was one of the factors which contributed to that treatment. (See Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5 at [52] and [53].) 34 The applicant's understanding, and the respondent's evidence was that ALSs were available for litigants in Supreme Court hearings in February 1996. None of the respondent's witnesses knew why the equipment had not been provided. There is no evidence, nor any basis on which an inference can be drawn, that Mr Bradley's disability was a factor which contributed to the refusal of the service or to the provision of that service on the terms outlined above. 35 Given this conclusion, the respondent's treatment of Mr Bradley cannot amount to direct disability discrimination because it did not occur on the ground of Mr Bradley's disability. Mr Bradley was treated in the same way as other people in his situation would have been treated. By denying potential litigants access to an ALS, the respondent has met the demand for "formal equality" with which the direct discrimination provisions are concerned. 36 A more contentious issue is whether that treatment could amount to indirect disability discrimination because the outcome or results of the respondent's treatment was that Mr Bradley was disadvantaged compared with people without a hearing impairment. The respondent submitted that it is a fundamental component of both direct and indirect discrimination that the treatment be "on the ground of" disability. This submission is based on the fact that the introductory paragraph to s 49B refers to discrimination "on the ground of the aggrieved person's disability" and then sets out the further requirements for direct and indirect discrimination in 49B(1)(a) and (b) respectively. 37 The inclusion of the requirement in s 49B (and equivalent provisions for other grounds) that, for both direct and indirect discrimination, the treatment must be "on the ground of" an attribute of the aggrieved person (such as gender, race, disability etc) has been the subject of previous findings by this Tribunal. In Bonella & ors -v- Wollongong City Council [2001] NSWADT 194 the Tribunal set out at [58] to [68] its reasons for concluding that despite the wording in the AD Act, an applicant did not have to prove that indirect discrimination was "on the ground of" an attribute of the aggrieved person. 38 That decision went on appeal to the Appeal Panel but the Tribunal's interpretation of the words "on the ground of" in relation to indirect discrimination, was not one of the grounds of appeal. (See Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26.) Having considered the Tribunal's reasoning and conclusion in Bonella, we respectfully adopt their approach in relation to s 49B. This means that in order to make out a case of indirect discrimination, Mr Bradley does not have to prove that the imposition of any requirement or condition, as set out in s 49B(1)(b), was "on the ground of" his disability. Indirect discrimination 39 Indirect discrimination focuses on the achievement of substantive equality in cases where the treatment itself is consistently applied to a group of people. Consistent treatment can lead to a particular person or group being disadvantaged because of their disability. The elements of indirect discrimination, derived from s 49B(1)(b), which Mr Bradley must establish are that: 1. The respondent required Mr Bradley to comply with a requirement or condition. 2. Mr Bradley does not or is not able to comply with that requirement or condition. 3. A substantially higher proportion of persons who do not have a hearing impairment comply or are able to comply with that requirement or condition. 4 The requirement or condition is not reasonable having regard to the circumstances of the case. 40 Requirement or condition. In our first decision, we reviewed the reasoning in Scott & Anor v Telstra Corporation Limited (1995) EOC 92-717 and Waters v Public Transport Corporation (1991) EOC 92-39057 and concluded, at [57], that the requirement in this case could be formulated as follows: "In order to gain access to the services provided by the respondent, a person must do so without the benefit of an ALS." On reflection, this formulation is not entirely accurate. In our reconsidered view, the correct formulation of the requirement is: In or about February 1996, a person participating in a hearing before the Supreme Court, must have done so without an ALS, even though such equipment was available. 41 This characterisation of the requirement is similar to that approved by the High Court in Waters v Public Transport Corporation (1991) EOC 92 390. Mason CJ and Gaudron, Dawson, Toohey and Deane JJ all agreed that it was open for the Victorian Equal Opportunity Board to find that the removal of conductors from trams involved the imposition of a condition that the complainants use trams without the assistance of conductors. Mason CJ and Gaudron J noted at 78,674, that compliance may be required even if the requirement is not explicit. 42 Mr Castellan gave evidence for the respondent that in February 1996 ALSs were available to assist litigants with a hearing impairment. Mr Castellan had obtained hearing devices from the Downing Centre to assist two hearing impaired judges prior to 1996 but did not give evidence that the equipment had ever been provided, or not provided, to a litigant or other person who was required to participate in proceedings such as a witness or a legal representative. 43 The question is whether it can be inferred from the respondent's treatment of Mr Bradley that the same "requirement" was or would have been imposed on other litigants participating in Supreme Court proceedings at that time. On the basis of the respondent's failure to provide an ALS to Mr Bradley and Mr Castellan's evidence, we consider that an inference can be drawn that at or around the time Mr Bradley requested the equipment, he, and any other litigant or other participant requesting such equipment, (apart from judges) was or would have been, subject to the requirement or condition set out above. 44 Under s 49B(1)(b), it is sufficient if the perpetrator "requires the aggrieved person to comply with a requirement or condition." (Emphasis added.) The requirement must be one with which a substantially higher proportion of persons who do not have that disability "comply or are able to comply." That ability to comply may be hypothetical. For example, in Waters & Ors v Rizkalla & Anor (1990) EOC 92-282 the Victorian Equal Opportunity Board decided that the fact that a requirement or condition is not yet operational does not mean that the complainant cannot allege inability to comply with it. Similarly, whether or not any other litigant or participant actually requested an ALS, is not relevant. 45 Mr Bradley's ability to comply with the requirement. Mr Bradley participated in the hearing before the Supreme Court without an ALS. In that sense, it is arguable that he complied with the requirement. Courts in the United Kingdom and in Australia have interpreted compliance with a requirement as the ability to comply in a practical sense, rather than a theoretical ability to comply. For example, the fact that a woman could theoretically work full-time, rather than part-time, does not mean that she can comply with a requirement to work full-time, if that does not suit her situation. (Price v The Civil Service Commission (1977) IRLR 291). This approach has been followed in Australia by Einfeld J in The Australian Public Service Association v The Australian Trade Commission (1988) EOC 92-228, at p 77,1672, by Wilcox J in Styles v The Secretary of the Department of Foreign Affairs and Trade & Anor (1988) EOC 92-239 at 77, 238 and by the Western Australian Equal Opportunity Tribunal in Speering v Minister of Education (1993) EOC 92-513 at 79,621.) 46 However, in some situations, there is more than a theoretical possibility of compliance, an applicant may in fact comply with a requirement, but with more difficulty, or in a different manner, from other people. In Byham v Preston City Council (1991) EOC 92-377 the Victorian Equal Opportunity Board held that Preston City Council had imposed a requirement that a person use the stairs to access council meetings held on the first floor, because there was no lift available. The complainant, who used elbow crutches, gained access to the meetings by using the stairs but required assistance. The Victorian Equal Opportunity Board held, at 78,604, that Mr Byham could not comply with the requirement because he could not comply "in a similar manner to the way in which a person not so impaired could comply." 47 Similarly, in Beu v PR Exhibitions Pty Ltd [1997] QADT 13 (12 May 1997), the Queensland Anti-Discrimination Tribunal held that even though the complainant was physically able to comply with a requirement that she carry her baby rather than make use of a pram or stroller, she was not able to comply in any practical sense. 48 As far as we are aware, no Australian appellate courts have considered the issue of whether physical compliance with a requirement (albeit with difficulty) should nevertheless be regarded as an inability to comply with the requirement. 49 The words in s 49B(1)(b) are that the requirement must be one "with which the aggrieved person does not or is not able to comply." In this case the relevant question is whether Mr Bradley "is not able to comply" with the requirement. Section 33 of the Interpretation Act 1987 states that the Tribunal should apply a "purposive" approach to statutory interpretation. That section states that: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 50 This provision requires a court or Tribunal to take into account the purpose of the legislation even if the meaning of the term is clear. The court or Tribunal should consider the purpose of the legislation to determine whether there is more than one possible construction. If there is, then the construction, which is consistent with the purpose of the legislation, should be preferred. (Mills v Meeking (1990) 91 ALR 16 at 30-31.) 51 The long title of the AD Act is "An Act to render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons." The purpose of the indirect discrimination provisions of the legislation is to provide a remedy where people are treated consistently, but the outcome or results of that treatment is less favourable for people with a disability. Even where a person can technically comply with a generic requirement, the results or outcome for that person may be less favourable than for an able-bodied person. Since the purpose of the indirect discrimination provisions is to ensure, as far as possible, that equality of result is achieved, it is those results which must be the focus when interpreting the provision. 52 The result of the requirement in this case was that Mr Bradley (and others with a hearing impairment which is alleviated by an ALS) was relatively disadvantaged because unlike a person who can hear clearly, Mr Bradley could not hear everything that was said. 53 When considering this purpose of the legislation, there is more than one possible construction of the words "is not able to comply." Those words could mean that an applicant is not able to comply at all, or in any sense, with the requirement, or those words could mean that an applicant is not able to comply without suffering some appreciable disadvantage or detriment. Given that the focus of indirect discrimination is on equality of results, we adopt the second construction of those words. Not to do so would render the indirect discrimination provisions inoperative wherever there had been de facto compliance with a requirement regardless of the discriminatory effect or outcome of that de facto compliance. 54 The respondent submitted that any disadvantage or difficulty experienced by Mr Bradley arose from the manner in which he and his lawyers conducted the case, not because of the lack of any ALS. In fact the respondent submitted that it was a "crucial issue" in this case that there is an absence of evidence, and certainly no expert evidence, that the provision of an ALS would have made any real difference to the conduct of the Supreme Court proceedings. 55 Mr Bradley gave specific evidence at paragraph 8 of his statement dated 13 January 1999, that "I am assisted by audio loop listening systems and infrared listening systems. Where these types of assistive devices have been installed, I am able to hear more than 80% of the time clearly, via the use of the electronic controls and T cell switch, for both my hearing aids." Mr Bradley also gave evidence that it was impossible for him to follow clearly and precisely what was happening during the Supreme Court proceedings, despite his hearing aids, due to the noise and cross talking. He said that he had to repeatedly adjust his hearing aids to try to get better reception. Although Mr Bradley admitted in cross-examination that only one person was talking most of the time, he said he had difficulty hearing the opposing counsel because he was some distance away and he had a soft voice. 56 The respondent referred to a letter from Dr Mercurio dated 7 October 1994 to the Registrar of the Supreme Court and noted that it did not refer to any need for special equipment in relation to hearing difficulties to attend court. Mr Bradley responded that his acoustic neuroma had not been diagnosed at that time. In addition, Catherine Brown, Mr Bradley's audiologist, did not even prescribe hearing aids for Mr Bradley until December 1994. Consequently no adverse inference can be drawn from Dr Mercurio's report. 57 Ms Smith gave evidence that "When I spoke to Mr Bradley during the course of the hearing, I did so in a normal tone and it is my clear perception that he had no trouble hearing me." Although we accept Ms Smith's evidence, it does not mean that Mr Bradley was exaggerating his difficulties. The dynamics in the court room were different from those in which Ms Smith spoke to Mr Bradley. 58 At paragraph 28 of their written submissions, the respondent particularised the parts of the Supreme Court transcript where Mr Bradley asks for questions to be repeated or for opposing counsel to look at him or speak louder. On the basis of this submission, and having examined the transcript, we calculate that during the course his lengthy cross examination over various periods during the course of four days, Mr Bradley asked counsel to speak directly to him at least nine times; he asked counsel to speak more slowly at least eleven times; he asked counsel to repeat a question, to speak louder or commented that he couldn't hear at least eight times. 59 It was put to Mr Bradley that the transcript showed that he rarely asked the barrister cross-examining to speak up or to face him directly. Mr Bradley denied that he could understand the barrister most of the time or that he was exaggerating the impact of his hearing loss for the purposes of these proceedings. 60 On the basis of all the evidence, we find that Mr Bradley had difficulty hearing everything that was being said in the course of the Supreme Court hearing. Mr Bradley had an ALS during the proceedings before the Tribunal. While he also had difficulty at times following what was being said, we have formed the impression from transcripts, and on the basis of our observations in the Tribunal proceedings, that he was able to hear better during the Tribunal proceedings than he could in the Supreme Court proceedings. The conclusion which we draw from that finding is that Mr Bradley would have had less difficulty hearing in the Supreme Court proceedings, had he been provided with an ALS. 61 We are satisfied on the basis of all the evidence and the reasoning outlined above, that while Mr Bradley technically complied with the requirement, applying a purposive approach, he nevertheless satisfies the second element of indirect discrimination set out above at [39]. 62 Substantially higher proportion. This element of indirect discrimination requires two proportions to be compared. The first proportion is the number of people with a hearing impairment who can comply with the requirement divided by the total number of people with a hearing impairment to whom the requirement is directed. The second proportion is the number of people without a hearing impairment who can comply with the requirement divided by the total number of people without a hearing impairment to whom the requirement is directed. 63 The respondent submitted that the identification of the appropriate pool or base group is a mixed question of fact and law and must be the subject of some evidence. The respondent referred to the Tribunal's decision in Wollongong City Council v Bonella [2002] NSWADTAP 26 at [35] to [45]. We agree that the decision to select a particular base group involves a mixed question of fact and law. (Commonwealth Bank v Human Rights and Equal Opportunity Commission ('Finance Sector Union Case') (1997) 150 ALR 1 at 42.) 64 We do not agree that specific evidence must be provided in relation to the base group or pool before any finding can be made as to whether this element of indirect discrimination has been satisfied. The pool is easily defined in this case as all the people to whom the requirement or condition was directed. The requirement was directed to litigants or other participants in Supreme Court hearings at the relevant time. 65 As noted above, there is no evidence at to whether or not anyone asked for an ALS at the relevant time, and if so, whether that request was refused. However, we have found that the requirement was applied generally to litigants and other participants in Supreme Court hearings. In the absence of any specific evidence, we cannot calculate the proportions outlined above. However we can conclude that the second proportion is 100% because every litigant or other participant without a hearing impairment can comply with the requirement. The first proportion will be substantially less than 100% because the majority of litigants or other participants with a hearing impairment cannot comply with the requirement. Some people with a mild hearing impairment or certain kinds of hearing impairment may be able to hear the proceedings without an ALS. Nevertheless, we are satisfied that a substantially higher proportion of those to whom the requirement was directed and who do not have a hearing impairment comply or are able to comply with the requirement compared with those with a hearing impairment. 66 Reasonableness. The final element of indirect discrimination is that the requirement is not reasonable having regard to the circumstances of the case. Since ALSs were available for use by litigants, Mr Bradley and others on his behalf requested that equipment, and one of those requests reached the person who was responsible for organising the provision of the equipment, it was not reasonable for the respondent to impose the requirement. 67 On the basis of these findings, the respondent is in breach of s 49M(1) of the AD Act, unless it can establish "unjustifiable hardship" under s 49M(2). Unjustifiable hardship. 68 Unjustifiable hardship is defined in s 49C as follows: In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including: (a) the nature of the benefit or detriment likely to accrue or be suffered by any persons 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. 69 The respondent submitted that the evidence shows that the Attorney-General's Department had an orderly program of introducing a range of changes and technology to assist people with various disabilities to participate in the legal process. Some equipment was available in 1996 but it was not available in every court. The respondent went on to refer to the Attorney General's Department Disability Strategy Plan and relied on the decision of the Appeal Panel in Moxon v Westbus Ltd (No 1) [2000] NSWADTAP 12; and Moxon v Westbus Ltd (No 2) [2002] NSWADTAP 24 as setting out the relevant principles to be applied. 70 Firstly, we have already found that Mr Bradley would have benefited from the provision of an ALS. The effect of his disability was, at least, that he was unable to hear everything that was said during the course of the proceedings. The provision of an ALS would not have led to any financial hardship whatsoever on the respondent because their own evidence was that the equipment was available at the time for use by litigants in Supreme Court hearings. Taking into account all these factors, we find that the provision of the particular service in this case would not have imposed unjustifiable hardship on the respondent. 71 On the basis of our findings and the reasoning set out above, we find the complaint substantiated. Remedies 72 Available orders. Section 113 of the AD Act sets out the powers of the Tribunal after holding an inquiry. (1) After holding an inquiry, the Tribunal may: (a) dismiss the complaint the subject of that inquiry, or (b) find the complaint substantiated and do any one or more of the following: (i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (iiia) in respect of a vilification complaint, order the respondent to publish an apology in respect of the matter the subject of the complaint or order the respondent to publish a retraction in respect of the matter (or order both) and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (iiib) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination, (iv) make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, or (v) decline to take any further action in the matter. 73 In his Points of Claim, Mr Bradley sought: * damages of $40,000; * an apology from the respondent for failing to advise him of the availability of an ALS; * that the respondent amend its procedures to ensure that all parties to proceedings before the NSW Supreme Court are advised of the availability of facilities to accommodate hearing disability; and * action be taken to ensure that Supreme Court proceedings do not continue after a party has advised the Court or the Registry of a hearing disability which requires accommodation. 74 The Tribunal has the power to order damages, but not to order an apology except in relation to a vilification complaint. After some discussion, Mr Bradley agreed that the last two orders listed above may not be expressed in a way which was within the power of the Tribunal to make. However, the Tribunal may make any conduct order it considers appropriate. We will deal first with Mr Bradley's claim for damages under s 113(1)(b)(i). 75 Causation. The requirement that any loss or damage be suffered "by reason" of the respondent's conduct reflects the common law requirement that the damage must be caused by the conduct in question. The "but for" test is generally applied to torts and is relevant to these proceedings. Pursuant to the "but for" test, the conduct caused the damage if that damage would not have occurred without (but for) it. (March v Stramare (1991) 171 CLR 506.) The Tribunal must ask itself what loss or damage occurred by reason of the fact that Mr Bradley was not provided with an ALS during the course of the Supreme Court hearing. 76 Mr Bradley submitted that he suffered the following loss or damage: * Distress and other adverse impacts on his health; * An increase in his legal costs as a result of the hearing taking longer than it would otherwise have taken; and * Long term loss of income. Distress and adverse impacts on Mr Bradley's health. 77 General impact on health. Mr Bradley said he became exhausted and disoriented during the Supreme Court proceedings to such an extent that he was unable to provide proper instructions to his legal representatives. Mr McEncroe observed that Mr Bradley became quite upset and flustered by his inability to hear clearly throughout the proceedings. 78 Mr Bradley has been a patient of Professor Dennis Wakefield, a Professor in Pathology at the University of NSW and a consultant physician in Immunology and Allergy, since October 1994. Professor Wakefield wrote a letter about Mr Bradley dated 20 January 1999. The letter stated, in part, that: He had returned from Western Australia in June 1994 and was suffering from the effects of an Arbovirus Infection, Ross River Virus, which he had contracted whilst travelling. Since that time I have treated him for Chronic Post Viral Fatigue Syndrome, and despite various other illnesses, his health was improving up until the time of his court case, in February 1996, concerning his mother's will. The effects of the syndrome on Mr Bradley are extreme tiredness and lassitude, irritability and muscular pain. In December 1994, Catherine Brown, Audiologist, tested his hearing impairment and prescribed a hearing aid for each ear. The severe hearing loss in the left ear was caused by an Acoustic Neuroma. This was diagnosed by Dr D O'Sullivan, a Neurologist of St Vincent's Hospital, in April 1995. I observed that he was coping with his illnesses and his recovery was progressing satisfactorily. He also presented with complaints of "recent memory loss" which I attributed as a symptom of Sleep Apnea (sic). This Apnea (sic) adds to his tiredness and exacerbates his fatigue. When I saw him on 12 March 1996, whilst his court case was in progress, I noted that his physical condition had deteriorated, apparently due to the stresses he suffered in the court case. His health recovery after March 1996 had not reverted to what I would have expected as was the position prior to the court case in February 1996. I observed that his health had been markedly affected during and since the court case and this was apparent during the following twenty months after February 1996. The hearing difficulties experienced during the court case exacerbated his hypertension and increased his stress levels for a much longer period than I had expected. In conclusion I consider that Mr Bradley's hearing impairment and court case experience exacerbated his other illnesses and has prolonged his recovery unduly. 79 Blood pressure. Mr Bradley gave evidence that he could feel his blood pressure rising during cross examination. Mr Bradley experienced problems with his blood pressure at least four times during the course of the Supreme Court proceedings. He took blood pressure tablets and also measured his blood pressure in the witness box. The Master objected to this behaviour and requested that Mr Bradley ask for a short adjournment to take his blood pressure if that was necessary. 80 Mr Bradley attended Sydney Hospital at the end of the first days hearing because of concern about his blood pressure. The records from the hospital indicate that Mr Bradley attended on 29 February 1996 at 4.20 pm and again on 9 April 1996 at 12.40 pm. On 29 February he requested a blood pressure check. He was advised that his blood pressure was normal. On the occasion of his next visit to Sydney Hospital on 9 April 1996 the notes record that Mr Bradley was in court that morning giving evidence when he felt his blood pressure rising and his heart racing. He told staff at the hospital that he felt anxious and stressed. The notes record the words 'labile hypertension'. 81 The respondent submitted that there was no evidence of any connection between Mr Bradley's blood pressure and his hearing impairment. However, Professor Wakefield stated in his report, that "The hearing difficulties experienced during the court case exacerbated his hypertension and increased his stress levels." While Professor Wakefield's letter is dated 20 January 1999, he says that he saw him on 12 March 1996 while the court case was in progress. Professor Wakefield's conclusion on this point appears plausible and as he was not required for cross-examination, we accept this aspect of his evidence. 82 While Professor Wakefield concluded that the sleep apnoea adds to Mr Bradley's tiredness, we are satisfied on the basis of all the evidence that not having an ALS in the Supreme Court hearing contributed to Mr Bradley becoming tired, upset and flustered at times. He also experienced increased problems with his blood pressure and stress levels partly as a result of his inability to hear everything that was being said. 83 Professor Wakefield gave evidence that Mr Bradley's overall recovery from previous illnesses was delayed and his health was detrimentally affected for some 20 months after February 1996. Despite the fact that Professor Wakefield was not required for cross-examination, we do not find this evidence persuasive. Mr Bradley apparently had several other illnesses and disabilities at the time of the court hearing including Chronic Post Viral Fatigue Syndrome and sleep apnoea. While we accept that the difficulty Mr Bradley had in hearing the proceedings contributed to his slower than normal recovery from other illnesses, we are not satisfied that his recovery was delayed for a period of 20 months. 84 Mr Bradley made several references to his poor memory during the proceedings. Professor Wakefield attributed his poor memory to the sleep apnoea. Even if Mr Bradley does have a poor memory which has some physiological bases, that situation would not have been improved by the provision of an ALS. 85 The respondent submitted that any award of damages should be minimal. A figure of $250 was suggested. While damages for non-economic loss are difficult to quantify, the point was made by the English Court of Appeal in Alexander v Home Office [1998] 1 WLR 968 at 975 that in discrimination cases damages for non-economic loss should "not be minimal, because this would tend to trivialise or diminish respect for public policy." 86 In this case we consider that the impact of the respondent's discriminatory conduct on Mr Bradley's health was significant, not only during the time the proceedings were on foot, but for a short period thereafter. In all the circumstances, we consider an award of $5,000 for non-economic loss to be appropriate. Increase in costs as a result of the increased length of the hearing. 87 Inability to hear everything that was being said. We have already found that Mr Bradley could not hear everything that was being said in the court room and frequently had to ask counsel to speak louder, to speak directly to him or to repeat or clarify a question. 88 Mr Bradley said that he had to adjust his hearing aids because of his inability to hear clearly. Mr McEncroe observed that Mr Bradley occasionally removed his hearing aids when the reception was inaudible. Mr McEncroe observed that Mr Bradley had difficulty resuming answering questions after he had adjusted his hearing aids. 89 Interruptions to the proceedings. Mr Cameron said that time was also lost as a result of Mr Bradley administering medication and taking his blood pressure. He said he asked for water several times and on one occasion requested an ice pack. None of these requests were recorded in the transcript. Mr Cameron said although the transcript should record everything that happens some things were not recorded. For example, the fact that Mr Bradley requested an ice pack is not recorded in the transcript. Mr Cameron said that he remembered this incident as well. We are satisfied that Mr Bradley did request an ice pack notwithstanding that that request is apparently not recorded in the transcript. 90 Effect of imposition of the requirement on length of the proceedings. In Mr Bradley's opinion, the cross examination took longer than it should have because of his inability to clearly follow what was being asked. In Mr McEncroe's view, Mr Bradley's inability to hear clearly resulted in the hearing going for an extra two days. Mr McEncroe gave evidence that Mr Bradley's legal costs to his firm were $11,500. He estimated that his costs would have been reduced by approximately $5,000 if the matter had not been delayed. 91 When asked about the basis for calculating the $5,000, Mr McEncroe said that it was not based on $2,500 a day for the two extra days he believes the hearing took. He said that "Had the matter gone for the estimated number of days it would have cost $5,000 less." 92 We do not accept Mr McEncroe's evidence that the hearing would have taken two days less if Mr Bradley had an ALS, or that he would have charged $5,000 less if Mr Bradley had an ALS. Mr McEncroe could give no basis for his calculation of this amount. 93 Mr Cameron, Mr Bradley's counsel in the Supreme Court proceedings, said that he had no doubt that the protracted cross-examination of Mr Bradley, and his witness, Ms Adams, caused the matter to run for five days when in his experience, these kinds of matters usually took two days at the most. He said that the cross examiner had to speak very loudly, very slowly and often repeat his questions, due to Mr Bradley's inability to clearly hear the questions. In Mr Cameron's opinion, at least 2½ days of the hearing time can be attributed to the problems Mr Bradley demonstrated he had in hearing the questions being put to him in cross-examination. 94 Mr Cameron agreed that the cross examination was aggressive and that the Master was critical of the manner in which Mr Bradley presented himself. Mr Cameron disagrees that his estimate of 2 ½ days extra because of Mr Bradley's hearing impairment was an exaggeration. 95 It was put to Mr Bradley that he was exaggerating his hearing problems and the effects of not having access to an ALS in the Supreme Court hearing. The reason he was exaggerating, according to the respondent, was because he was angry about the comments Master McLaughlin made about him in the decision. At p 7 of his decision Master McLaughlin commented that Mr Bradley was: "far from frank in disclosing the details of his financial and material circumstances. . . . Much of the relevant information in this case, which should have been presented voluntarily in the plaintiff's own affidavits, emerged in a somewhat confused and often imprecise fashion during the cross-examination of the plaintiff. I received the clear impression that the plaintiff was reluctant to present this material of his own accord. At times he appeared to be deliberately evasive." 96 Mr Bradley denied that he had exaggerated his problems or that he was angry about the Master McLaughlin's comments. 97 Ms Ronalds put to Mr Bradley that the transcript showed that the major part of his cross-examination was taken up with questions about his financial affairs. Mr Bradley did not agree with this proposition. It was the respondent's submission that the delay in the proceedings was caused by a combination of Mr Bradley's failure to put on adequate affidavit evidence of his financial circumstances and his behaviour in the witness box. 98 The respondent submitted that the delays caused by Mr Bradley asking for questions to be repeated or for opposing counsel to speak more loudly or face him were infrequent and caused no real interruption or delay in the proceedings. According to the respondent, the transcript demonstrates that Mr Bradley was at times aggressive, belligerent and evasive in his answers. 99 In a separate costs decision, of 25 July 1996, at p 6, Master McLaughlin made the finding that: I consider that the submissions made by Mr Hodgson concerning the conduct of the plaintiff throughout the trial and his performance in the witness box were fully justified. I have referred in my judgment to the behaviour of the plaintiff in the witness box. I consider the description by Mr Hodgson of the plaintiff's behaviour as "unusual, if not extraordinary, and at times verging on the theatrical", to be a not inaccurate description of the plaintiff's conduct. That conduct very largely contributed to the protracted hearing of the substantive proceedings. 100 In his decision of 18 July 1996 at p 12, Master McLaughlin described Mr Bradley's behaviour in the witness box as "designed to engage the sympathy of the Court." However he said it "did not assist the plaintiff's case" and "raised doubts as to the genuineness of the various health problems from which he said he was suffering." 101 The respondent submitted that the Tribunal is bound by the findings of the Supreme Court. That is not the case. Since these findings are findings of fact, s 91(1) of the Evidence Act 1995 would preclude us from taking them into account. Section 91(1) of the Evidence Act 1995 states that (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. 102 Given that s 73(2) of the ADT Act, states that the Tribunal is not bound by the rules of evidence, the decisions of the Supreme Court together with the transcript of the proceedings were admitted into evidence. Nevertheless, we take the view that it is up to the Tribunal to make its own findings of fact on the basis of all the evidence and that we are not bound by any findings of fact made by the Supreme Court. 103 Mr Bradley's response to Master McLaughlin's findings about his behaviour was that the Master knew nothing of assistive listening devices or of Mr Bradley's problems. Master McLaughlin did refer to Mr Bradley's "hearing difficulties" in the decision dated 18 July 1996 at p 10. 104 We are satisfied that the cross-examination was protracted partly because of Mr Bradley's behaviour in the witness box, partly because of his failure to provide detailed financial evidence and partly because of his inability to hear clearly. Mr Bradley's inability to hear led to requests for counsel to speak more slowly, to face him, and for questions to be repeated. In addition there were times when Mr Bradley requested an ice-pack, took blood pressure tablets and measured his own blood pressure. The transcript does not record the amount of time these things took. 105 We find Mr Bradley, Mr McEncroe and Mr Cameron all overestimated the amount of time lost because Mr Bradley was not provided with an ALS. In order to quantify Mr Bradley's loss in terms of legal fees, we must attribute a proportion of the hearing time to the fact that Mr Bradley did not have an ALS. Any estimate must be based on the Tribunal's impressions having regard to all the evidence. Our estimate is that 10% of the hearing time can be attributed to the fact that Mr Bradley did not have an ALS. Counsel's legal fees for the five hearing days was $8,040.00. Mr McEncroe charged Mr Bradley a total of $11,500 in legal fees. In the absence of any evidence, we estimate that half this amount, being $5,750.00 would be attributable to the hearing itself. On the basis of these amounts, Mr Bradley is entitled to be awarded a sum of $1,379.00 for economic loss. Long term financial impact. 106 Mr Bradley claimed that he is unable to earn a living and has suffered a substantial loss of money which he attributes mainly to the effects on his health in not having an ALS at his hearing. Mr Bradley agreed in cross-examination that he told the Supreme Court that he had been unable to work on a full time basis since 1986. He said he has had to destroy research obtained over 15 years for books he was writing. Professor Wakefield said in his letter that Mr Bradley's "physical condition since February 1996 would not give him the stamina and fortitude to persevere with the discipline and tasks involved in such an exercise. He complained the he had suffered much loss of income as the book was not produced as he had incurred much expense whilst researching his trip to Western Australia." 107 Mr Bradley also agreed that he had collected data and conducted research in relation to at least five books over the years. He is not actively working on any of these books at the moment. In relation to three of the books, he abandoned work on them prior to the Supreme Court hearing in April 1996. He is currently "thinking about" another book, although he has destroyed the research material in relation to it. He is "collecting data" in relation to another book. 108 There is no connection between Mr Bradley's ability to earn an income from writing books and the respondent's treatment of him. We are not satisfied that Mr Bradley has suffered any long term financial loss as a result of the respondent's conduct. Consequently, the total damages which we award to Mr Bradley is $6,379.00. 109 It is not necessary to make any other orders in relation to the respondent. There was evidence that the respondent developed a Disability Strategic Plan (1997-2000) as part of the Attorney General's Department Corporate Plan. We are confident that the respondent's strategies in relation to people with disabilities and the effect of this decision will be sufficient to prevent discriminatory conduct of a similar nature occurring in the future. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.