Ball v SilverTop Taxi Service Ltd

[2004] FMCA 967

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BALL v SILVER TOP TAXI SERVICE LTD [2004] FMCA 967

DISCRIMINATION LAW — HUMAN RIGHTS – Disability discrimination — applicant confined to motorised, electric wheelchair — respondent is largest taxi depot in Victoria — respondent provides centralised booking and dispatch service for taxi operators affiliated with depot — wheelchair accessible taxis (“WATs”) — wheelchair accessible taxi operators obliged to give priority to wheelchair bookings — alleged failure of wheelchair accessible taxi operators to give such priority — whether direct or indirect discrimination — discrimination in the provision of goods, services or facilities — services relating to transport or travel — whether applicant treated less favourably than, in similar circumstances, respondent would have treated a person without the applicant’s disability — no causal relationship (causal nexus) established between applicant’s disability and the less favourable treatment that she may have received — comparison of services provided by the respondent to wheelchair-bound hirers with services provided to non-wheelchair-bound hirers — identification of requirement or condition imposed by the respondent in relation to the provision of its services — whether the applicant was able to comply with the respondent’s requirement or condition — whether the respondent’s requirement or condition imposed was not reasonable having regard to the circumstances of the case — effect of respondent’s failure or refusal to impose appropriate, internal sanctions on wheelchair accessible taxi operators who breach the terms of their Victorian Taxi and Tow Truck Directorate licences by ignoring the requirements of those licences to give priority to wheelchair bookings — applicant fails to demonstrate discrimination within the terms of the Disability Discrimination Act 1992 (Cth) — recommendation that respondent take steps to introduce and enforce a disciplinary policy which appropriately penalises wheelchair accessible taxi operators who fail or refuse to comply with the terms of their licences (by failing or refusing to give priority to wheelchair-bound hirers.

Human Rights and Equal Opportunity Commission Act (1986)
Disability Discrimination Act (1992)

Racial Discrimination Act (1975)
Sex Discrimination Act (1984
Age Discrimination Act (2004)

Purvis v State of New South Wales & HREOC (2003) 78 ALJR 1
Catholic Education Office v Clarke (2004) FCAFC 197

Mimms v State of New South Wales (2002) FMCA 60;
Waters v Public Transport Corporation (1991) 173 CLR 349
Australian Medical Council v Wilson (1996) 68 FCR 46

Hinchliffe v University of Sydney (2004) FMCA 85

State of Victoria v Schou (2004) FSCA 71

Applicant: KATHLEEN FAYE BALL

Respondent: SILVER TOP TAXI SERVICE LTD

File No: MZ 558 OF 2002

Delivered on: 15 December 2004

Delivered at: Melbourne

Hearing date: 14 November 2003

Judgment of: Walters FM

REPRESENTATION

Counsel for the Applicant: Self Represented

Solicitors for the Applicant:

Counsel for the Respondent: Ms Siemensma

Solicitors for the Respondent: Minter Ellison

ORDERS

1. The application filed 7 June 2002 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 558 of 2002

KATHLEEN FAYE BALL

Applicant

And

SILVER TOP TAXI SERVICE LTD (ACN 004 213 969)

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Ball wanted to take her daughter to see the Wiggles, who were appearing in a Christmas show at the Vodaphone Arena in Melbourne in December 2001.

2. Ms Ball booked a taxi through Silver Top. The taxi was to collect her and her daughter at 3.00 p.m. — allowing them plenty of time to travel to Vodaphone Arena and take their seats. But the taxi failed to arrive on time.

3. When Ms Ball and her daughter finally arrived at the venue, the show was over. They did not see the Wiggles.

4. Ms Ball did not book an ordinary taxi on the day of the Wiggles concert. She could not do that. She has a disability. She has a condition known as Kugelberg Welander Syndrome, which is a type of spinal muscular atrophy. She uses an electric wheelchair for mobility.

5. Ms Ball’s electric wheelchair is heavy and cumbersome. It does not fold, and it cannot be loaded into a conventional taxi. So Ms Ball had no choice but to book a special taxi.

6. Silver Top Taxi Service Ltd (“Silver Top”) is the largest taxi depot in Victoria. It provides a centralised booking and dispatch service for taxi operators affiliated with the depot.

7. Of the more than 4,000 taxis in Victoria, approximately 300 are wheelchair accessible taxis — known as “WAT”s. Almost all of the WATs are vans. Certain types of WATs are specifically constructed (or modified) for persons in wheelchairs. They are fitted with appropriate anchorages and restraints and seat belts.

8. There are approximately 105 WAT operators affiliated with Silver Top.

9. Different licence conditions attach to WATs, including limitations on the right to assign the licence. The licence conditions allow the licence holder to carry passengers other than those in wheelchairs — but it is a condition of WAT licences that licence holders must give priority to wheelchair bookings.

10. The fact of the matter is, however, that WAT operators do not always give priority to wheelchair bookings. That is why Ms Ball and her daughter were left stranded on the day of the concert. That is why they did not arrive at the Vodaphone Arena until after the concert had ended. That is why Ms Ball feels aggrieved. And that is why these proceedings have come before this court.

The Application

1. The Wiggles’ Christmas concert was on 12 December 2001.

2. On 19 December 2001, Ms Ball wrote to the Human Rights and Equal Opportunity Commission (“HREOC”). She explained what had happened on the day of the concert and lodged a complaint against Silver Top under the Human Rights and Equal Opportunity Commission Act (1986) (“HREOCA”) alleging a breach of the terms of the Disability Discrimination Act (1992) (“DDA”).

3. On 20 May 2002, the president of HREOC wrote to Ms Ball. She informed Ms Ball that she was satisfied that there was no reasonable prospect of the complaint settling by conciliation and that, as a result, she had decided to terminate the complaint under s.46PH(1)(i) of the HREOCA.

4. On 7 June 2002, Ms Ball filed an application in this court. She was entitled to do so pursuant to the provisions of s.46PO of the HREOCA.

5. In her application, Ms Ball sought the following “orders”:

   1.      Wheelchair accessible taxi service to be the same response time as any other vehicle in the fleet.

   2.     Silver Top Taxis to ensure that drivers prioritise wheelchair bookings.

   3.     Refund ticket costs to the Wiggles.

   4.     General compensation for inconvenience, pain and suffering, etc.

   5.     A ruling that Silver Top has discriminated.

6. On 12 February 2003, Ms Ball filed a document headed “Particulars”. In the document, she states that she relies on s.24(1)(a), (b ) and (c) of the DDA. She also states that she relies upon ss.5 and 6 of the DDA.

The Law

1. The DDA is one of four Commonwealth Acts proscribing various forms of discrimination[1]. The preliminary part of each of these Acts comprises various definitions. Relevantly, the “grounds” of discrimination, and the definitions of discrimination which operate on those grounds, are defined. The Acts then proceed to proscribe discrimination (as defined) in certain areas of public life. Finally, the Acts set out certain exemptions, or statutory defences to claims of discrimination.

   [1] The other three are the Racial Discrimination Act (1975), the Sex Discrimination Act (1984) and the Age Discrimination Act (2004).

2. Disability is a ground of discrimination under the DDA. It is defined in s.4(1).

3. It is certainly not in dispute that Ms Ball is a person with a disability for the purposes of the DDA.

4. The grounds upon which a person may be found to have discriminated against another person operate within the framework of two different definitions of discrimination. The first is referred to as “direct” discrimination, and the second is referred to as “indirect” discrimination.

5. In some forms of discrimination, there exists a clear distinction between direct and indirect discrimination — but the distinction is less clear when dealing with disability discrimination. In Purvis v State of New South Wales & HREOC (2003) 78 ALJR 1, Gummow, Hayne and Heydon JJ of the High Court said[2]:

   [2] Commencing at paragraph 198.

   … it is necessary to notice an important respect in which the subject of disability discrimination differs from some other forms of discrimination. Central to the operation of the Sex Discrimination Act and the Racial Discrimination Act is the requirement for equality of treatment. A central purpose of each of those Acts is to require that people not be treated differently on the ground of sex or race. Difference in sex or race is identified as a generally irrelevant consideration.

   By contrast, disability discrimination legislation necessarily focuses upon a criterion of admitted difference. The abilities of a disabled person differ in one or more respects from that range of abilities which is identified as falling within the band described as “normal”. It follows that disability legislation must be understood from the premise that the criterion for its operation is difference. That has important consequences. …

   … (Legislation) enacted in other (countries) has sought to give effect not just to a principle requiring equality of treatment, but to what is sometimes called a “substantive conception of equality”, in which the purpose is “to prevent or compensate for disadvantages”. …

   Concepts of “difference”, “disability” and “disadvantage” all depend upon comparisons. They assume that there is a person, or a group of persons with whom it is useful and relevant to draw the comparison which is implicit in describing one person as “different”, or “disabled”, or “disadvantaged”. Obviously, the utility and relevance of the comparison depends upon why it is being made. Different comparisons may have to be drawn according to whether the purpose is limited to ensuring that persons situated similarly are treated alike, or the purpose is wider than that. In particular, if the purpose of legislation is to ensure equality of treatment, the focus of inquiry will differ from the enquiry that must be made if the relevant purposes include ensuring equality in some other sense, for example, economic, social or cultural equality.

   “Substantive equality” directs attention to equality of outcome or to the reduction or elimination of barriers to participation in certain activities. It begins from the premise that “in order to treat some persons equally, we must treat them differently”. …

   The principle focus of the DDA, however, is on ensuring equality of treatment….

6. Section 5 of the DDA defines what is commonly referred to as “direct” discrimination as follows:

   (1)For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

   (2)For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

7. Indirect disability discrimination is defined in s.6 of the DDA as follows:

   For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

   (a)with which a substantially higher proportion of persons without the disability comply or are able to comply; and

   (b)which is not reasonable having regard to the circumstances of the case; and

   (c)with which the aggrieved person does not or is not able to comply.

8. Not all forms of disability discrimination infringe the provisions of the DDA. The application of the DDA is confined to particular fields, and to particular activities within those fields. In the present case, Ms Ball alleges that Silver Top discriminated against her (on the ground of her disability) in the provision of goods, services or facilities. This sphere of activity is dealt with in s.24 of the DDA:

   (1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:

   (a) by refusing to provide the other person with those       goods or services or to make those facilities available to the   other person; or

   (b)in the terms or conditions on which the first-mentioned   person provides the other person with those goods or services or makes those facilities available to the other person; or

   (c)in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

   (2)This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.

9. The definition of “services” in s.4(1) of the DDA includes “services relating to transport or travel”.

Ms Ball Must Prove Her Case

1. The standard of proof in a case of this nature is the balance of probabilities. The onus of proof is on Ms Ball, as the applicant.

Does Silver Top Provide Goods or Services, or Make Facilities Available?

1. Ms Siemensma (for Silver Top) conceded that the services provided by Silver Top are services that can be characterised as “services relating to transport or travel” for the purposes of s.4(1) of the DDA.[3]

“Direct” Discrimination — Did Silver Top treat Ms Ball less Favourably than, in Similar Circumstances, it would have treated a Person without Ms Ball’s Disability?

[3] See paragraph 25 of the respondent’s Outline of Submissions.

1. Ms Siemensma argued that there is no evidence that Ms Ball was treated less favourably in the provision of Silver Top’s services than a hypothetical person without such a disability would have been treated.

2. In order to give appropriate consideration to this submission, I must refer to the evidence before the Court as to the manner in which Silver Top carries on its business. That evidence was given by Mr Franet, who is the Managing Director of Silver Top, and who was authorised to give evidence on its behalf.

3. Mr Franet swore an affidavit on 20 October 2003. Ms Ball (who was unrepresented) accepted that the factual material contained in Mr Franet’s affidavit is accurate.

4. Rather than attempt to paraphrase the relatively detailed information contained in Mr Franet’s affidavit, I now reproduce the relevant parts of it:

   Structure of the Taxi Industry

   4.In Victoria, the taxi industry is regulated by the Department of Infrastructure (“the Department”). In 1995 the Department established the Victorian Taxi Directorate, now called the Victorian Taxi and Tow Truck Directorate (“VTTD”), to assist the Department in the administration of its functions under the Transport Act 1983 (Vic) and Transport (Taxi-Cabs) Regulations 1994. The VTTD comprises officers of the Department who are assigned to the VTTD.

   (a)Victorian Taxi and Tow Truck Directorate

   5.The VTTD has a regulatory and enforcement role in relation to the taxi industry.

   6.The taxi industry operates through a pool of more than 4000 taxi licences; one in respect of each taxi-cab.  The VTTD is responsible for granting taxi-cab licences.  Licences are issued by the VTTD based on an assessment of consumer need.

   7.The VTTD is responsible for imposing conditions on taxi-cab licences, varying conditions attached to taxi-cab licences and for disciplining persons in relation to breaches of licence conditions.  The Transport Act empowers the VTTD to impose penalties and/or cancel taxi-cab licences for breaches of licence conditions.  Each taxi-cab must be licensed by the VTTD in order to operate.

   8.The legislation provides that a person must not drive a taxi-cab in Victoria unless he or she holds a driver's certificate.  The VTTD grants driver’s certificates and may impose conditions on a driver’s certificate.

   9.The VTTD is responsible for ensuring that licence holders and drivers comply with relevant Acts and Regulations including the –

   Transport Act 1983;

   Road Safety Act 1986; and

   Transport (Taxi-Cabs) Regulations 1994.

   10.It also administers the Multi-Purpose Taxi Program (a State Government funded subsidy program that provides a 50% discount on taxi fares for Victorians who have a severe, permanent disability which significantly restricts their mobility).

   (b)Licence Holder (Owners and Assignees)

   11.A licence holder has the right to operate a licensed taxi-cab and to provide commercial transport services to the public.  A licence holder may be either the owner of the taxi-cab licence or an assignee of the licence.

   12.Licence owners are persons, companies or partnerships that have purchased a taxi-cab licence.  A general taxi-cab licence is valued at approximately $330,000.  Licences are frequently purchased through an industry broker for investment purposes.  Licence owners can own multiple taxi-cab licences.  Each licence holder pays an annual fee to the VTTD to maintain their taxi-cab licence.

   13.Licence owners may operate their taxi-cab licence(s) or may apply to the VTTD for authority to assign his/her right to operate a licensed vehicle.  Almost half of all licence owners assign their taxi-cab licence to an assignee.  Licences may be assigned for a specified period or until expiration of the licence.  In recent years there has been an increasing trend away from owner-operated taxis to assignee-operated taxis.

   (c)Drivers

   14.While many licence holders drive their own taxi-cabs, many also engage drivers to cover shifts.  This frequently occurs where a licence holder owns multiple taxi-cab licences.  In those circumstances, the licence holder and driver enter a written bailment agreement by which the fare collected by the driver is to be shared on a 50% basis with the licence holder.

   15.Drivers who have entered into a bailment agreement must also enter into an individual driver accreditation agreement with a taxi-depot for access to the depot’s booking and dispatch service. …

   (d)Taxi Depots

   16.Silver Top is a taxi depot.

   17.It is a condition of all taxi-cab licences that taxi operators operate their taxi-cabs from depots authorised by the Department.  As such, licence holders are affiliated with a depot.  The major reasons for this are:

   •the depots provide a centralised booking and dispatch service (more than 50% of taxi services are pre-booked through this system);

   •it is safer for drivers as each cab is integrated into the Geographic Positioning System ("GPS") which allows the depot to monitor the location and movement of each cab while it is in service.

   18.There are 6 taxi depots in metropolitan Melbourne namely, Silver Top, Black Cabs Combined, West Suburban Taxis, Arrow Taxi Service Limited, Embassy Taxis and North Suburban Taxis.

   19.Depots do not provide commercial transport services.  Taxi operators (licence holders and/or drivers) provide transport services to the public.  Although licence holders must be affiliated with a depot, each licence holder and/or driver operates their own business of providing transport services.

   20.Taxi-cabs are not owned by the depot.  Licence holders and drivers are not employed by the depot and are not independently contracted by the depot to provide transport services.  They do not perform work on behalf of the depot and are not paid by the depot.

   21.Licence holders and drivers are not agents or principals of the depot.  The depot does not act as agent for a member of the public in relation to that member’s dealings with the taxi-operator.  The depot is not a principal or agent of the taxi operator.  The depot is an intermediary that provides, in broad terms, directory, booking and administrative assistance.

   22.Each taxi operator enters into an agreement with an authorised depot, pays a joining fee to the depot and a monthly fee for the booking and dispatch services provided by the depot.  It does not pay commission to the depot on fares collected from passengers.  Each licence holder has an Australian Business Number and, subject to any arrangement with his/her drivers, the licence holder retains the taxi fare collected from the hirer.

   23.The taxi operator is responsible for payment of maintenance, registration, repair and fuel costs in respect of the taxi-cab.

   24.Taxi-cabs may be “hailed” from the street, hired from cab-ranks or booked through a depot.  Some bookings are also made directly by customers with individual taxi drivers, through the driver's personal mobile telephone. …

   Types of Taxi-Cabs

   26.There are more than 4000 taxi-cabs in Victoria of which over 300 are wheelchair accessible taxis (“WATs”).  Almost all of the WATs are vans.  The VTTD is responsible for the classification of taxi-cabs in Victoria. 

   27.“M50” and “M80” taxi cabs and High Occupancy Vehicles (“HOVs”) are types of WATs that are specifically constructed or modified for persons in wheelchairs and are fitted with wheelchair anchorages, restraints and seat belts. 

   28.There are different licence conditions attached to WATs including limitations on the right to assign the licence.  The licence conditions allow the licence-holder to carry passengers other than those in wheelchairs.  It is a condition of WAT licences that licence holders give priority to wheel-chair bookings. 

   29.The VTTD is responsible for the imposition and enforcement of licence conditions.

   Silver Top Taxi Service Limited

   (a)Services

   30.Silver Top is the largest taxi depot in Victoria.  It operates from offices in Collingwood.

   31.Silver Top employs approximately 115 persons who work predominantly in administration, finance and communication roles.  Approximately 70% of Silver Top’s employees work in the communications department.

   32.Silver Top does not operate taxis and does not provide transport services.  It does not hire taxi-cabs to members of the public. 

   33.Transport services are provided by drivers who have entered into a bailment agreement with a licence holder or by the licence holder who is licensed to operate their own business, namely the provision of commercial transport services to the public.  Silver Top is an intermediary between the taxi-operator and members of the public wanting to hire a taxi-cab. 

   34.Silver Top provides a centralised booking and dispatch service for taxi-operators affiliated with the Silver Top depot.  That is, Silver Top receives telephone calls from persons wanting to hire a taxi-cab.  It has teletext facilities to assist hearing impaired callers to book taxis.  Silver Top broadcasts bookings to taxi operators affiliated with Silver Top via radio communication.  Taxi operators may accept or reject any booking offered by Silver Top.

   35.Silver Top provides radio communication to taxi operators to facilitate the broadcasting of bookings. It installs equipment in taxi-cabs to facilitate radio communication with taxi operators. 

   36.Silver Top also provides taxi operators with access to its GPS.  The GPS, in broad terms, is computer technology that enables the depot to monitor the location and movement of each taxi-cab whilst it is in service, by reference to the taxi-cab’s latitude and longitude.  The GPS facilitates the broadcasting of bookings.

   37.Silver Top processes cab-charge vouchers tendered for payment by taxi operators affiliated with the Silver Top depot.  Silver Top pays the proceeds of cab-charge vouchers into the taxi operator’s account. 

   38.It also conducts an induction course for drivers who have recently obtained their driver’s certificate and/or are newly registered with the depot.  The induction course provides an overview in relation to Silver Top’s procedures and expectations.  For example, a briefing is provided in relation to Silver Top’s computer system, eftpos and safety equipment. …

   39.Silver Top’s processes, systems and functions of receiving telephone bookings and dispatching them to taxi operators are also referred to as the Silver Top network (“the Network”).

   40.Silver Top charges an initial joining fee and a monthly service fee to taxi operators that have registered with Silver Top.  The fee is for the provision and maintenance of booking and dispatch services and equipment.  The fee is payable irrespective of the number of bookings the taxi operator chooses to accept through the Network.

   41.There are up to approximately 40 employees per shift who are employed in Silver Top’s communications department.  The communications department operates 24 hours a day, seven days a week.  It is staffed to meet anticipated demand.  Telephone operators in the communications department receive up to approximately 2000 telephone calls per hour from persons wanting to hire a taxi-cab.  Silver Top’s system for receiving telephone calls and broadcasting bookings is as follows.  When the telephone operator receives such a call the caller’s details are entered into the computer system.  The telephone operator accesses the GPS and locates the taxis closest to the pick up point.  The booking is then broadcast to taxi-operators in close proximity to the caller’s pick up point by way of radio communication.

   42.If the caller has previously hired a taxi-cab affiliated with Silver Top, the computer system will automatically recognise the caller’s telephone number and generate the caller’s details.  The caller will then be asked by voice message to “press 1” if he or she wishes to hire a taxi-cab or to wait if he or she wants to speak with a telephone operator.  This technology is referred to as Caller Line Identification and Integrated Voice Response.  It significantly reduces the time taken to process the booking

   43.A taxi operator is able to accept or reject any booking offered to the taxi operator by the Network.

   44.If the booking is rejected Silver Top continues to broadcast the booking to taxi operators in the wider area.  The telephone operator monitors the booking on the computer to determine whether it has been accepted.  If it is not accepted Silver Top continues to broadcast the booking to taxi operators in an increasingly wide area.  It also broadcasts the booking to taxi operators entering the pick-up area until the booking is accepted.

   45.The telephone operator advises the caller that the first “available” taxi-cab will attend.  While telephone operators may provide an estimate as to the likely waiting time they do not (and cannot) guarantee that a taxi-cab will attend within a specified period.  The depot has no control over response times because taxi operators may refuse to accept a booking. …

   46.There are also numerous variables that make the demand for taxi-cabs and response times impossible to determine.  For example, seasonal factors, changing weather conditions, public events, the location of the caller and his/her destination, traffic conditions, certain times of the day and certain days of the week will all impact on the level of demand for taxi-cabs (both WAT and non-WAT) and response times.

   47.Unfortunately, it is not uncommon for a non-WAT booking to be offered 15 to 20 times before it is accepted by a taxi operator.  For example, taxi-cabs affiliated with Silver Top tend to operate predominantly in the inner metropolitan area.  In comparison, taxi-cabs affiliated with Black Cabs Combined tend to operate in the outer eastern and south eastern suburbs.  If a caller in an outer eastern suburb telephones Silver Top, taxi operators affiliated with Silver Top are unlikely readily to accept the booking.  This is because it is unlikely that there will be further work for that taxi-operator in the outer eastern suburbs.  Further, if the caller is travelling a short distance taxi operators may not wish to accept the booking.  These factors impact on the response times of both WAT and non-WAT taxi-cabs.

   48.The services provided by Silver Top in respect of WATs are exactly the same as the services provided in respect of non-WATs. Silver Top does not impose any condition on members of the public wanting to book a WAT or non-WAT taxi-cab affiliated with Silver Top.

   49.In approximately April 2001, Silver Top and Black Cabs Combined purchased the business formerly operated by Central Booking Service Pty Ltd (“CBS”).  CBS provided an exclusive booking service for WATs in Victoria.  At that time, the CBS only offered wheel chair jobs to WAT drivers.  While WAT drivers were able to accept general bookings, they could only do so through private arrangements, or when they were "hailed" from the street.  The unavailability of general bookings over the CBS network reduced the available work for WAT taxi operators and made it less remunerative for taxi-operators to provide WAT services.  CBS ultimately ceased operation due to financial difficulties and its inability to provide an adequate service.  Since then, WAT operators have been able to access both wheel chair and general bookings through the network to which they are connected.  However, it remains a condition of all WAT licences that they give priority to wheelchair bookings.  This condition was in force on 12 December 2001. …

   50.Since 2001, Silver Top and Black Cabs Combined have provided booking and dispatch services in respect of WATs.  Silver Top receives approximately 7 to 8 telephone calls per hour for WAT bookings.

   51.Relative to the number of telephone calls received for general taxi bookings, Silver Top allocates greater staff resources and efforts to the offering of WAT bookings than to standard taxi bookings.  Silver Top’s communications staff often place greater effort in finding a driver to accept a wheelchair booking, even to the extent of pleading with individual drivers to accept wheelchair bookings.  The communications staff who deal with WAT bookings are located approximately 15 metres from my office.  On numerous occasions I have heard and observed their efforts in trying to find WAT drivers who are willing to accept a wheelchair booking.

   52.Silver Top employs 2 to 3 persons per shift whose responsibilities are to receive telephone calls exclusively for wheel chair bookings and to broadcast those bookings to WAT taxi-cabs.  Silver Top provides a separate telephone number for wheel chair bookings and telephone calls can be transferred from the general Silver Top telephone number to employees handling WAT bookings.

   53.Silver Top’s system for receiving and broadcasting bookings for WAT taxis is as follows.  Telephone operators receive telephone calls, enter the caller’s details into the computer and broadcast the booking to all WAT operators in the same manner as general bookings.  As with general bookings, the telephone operator accesses the GPS to determine the closest WAT taxi-cabs to the pick up point and monitors the booking on the computer system.  Callers are advised that the next “available” WAT taxi will attend.  If the booking is not accepted by taxi-operators in close proximity to the caller's pick up point then Silver Top continues to offer the booking to drivers in an increasingly wide area and to taxi operators approaching the area.

   54.If the booking is still not accepted by WAT taxi operators then Silver Top broadcasts the booking to the extended taxi network to ensure that the booking is offered to every WAT taxi operator in the State.  Although there are 6 depots in metropolitan Melbourne only 3 of those depots operate a network.  Arrow Taxi Service Limited, Embassy Taxis and North Suburban Taxis use the network of Black Cabs Combined.

   55.The VTTD also offer an incentive to WAT operators to cover bookings which are not in their immediate area.  If a job has been offered to WAT operators in adjacent areas but has not been accepted, then the VTTD may in some circumstances offer a subsidy to WAT drivers as an incentive to accept the booking.  In practice, the VTTD does not pay the subsidy until a booking has been rejected at least 3 or 4 times.  The subsidy offered is $1.00 per kilometre for every kilometre travelled by the driver from the vehicle's present location to the pick-up point.  The subsidy is noted by Silver Top, billed to the VTTD and credited to the vehicle's account.  The payment is made by the VTTD, not Silver Top.  Silver Top is responsible only for administering the VTTD subsidy system.

   56.As with non-WAT taxi operators, it is not uncommon for WAT taxi operators to refuse to accept a booking offered by the Network and for bookings to be broadcast repeatedly. …

   Relationship between Silver Top and Affiliated Taxi Operators

   57.There are 1668 taxi-cabs affiliated with Silver Top of which 105 are WATs.

   58.Silver Top has no control over the number of taxi-operators who choose to enter into an affiliation agreement with Silver Top.  Accordingly, Silver Top is unable to control the number of WAT vehicles affiliated with the depot at any time.

   59.As noted, Silver Top does not employ or engage taxi operators to provide transport services on its behalf.  Licence holders and drivers who provide transport services are independent business operators.  Many licence holders are incorporated or in partnership and may operate a fleet of vehicles.

   60.Silver Top has extremely limited control over taxi-operators because of the nature of its relationship with taxi-operators and the limited services it provides.

   61.When taxi-operators apply to operate from the Silver Top depot they are provided with an Application Form (otherwise known as the affiliation agreement). …

   62.Silver Top issues taxi-operators with a personal identification number (“PIN”) to enable the taxi-operator to access the Network.

   63.Taxi-operators are also provided with an “Owner and Driver Handbook” (“Handbook”) that incorporates Silver Top’s Rules, Regulations and Network Procedures. …

   64.Paragraph 59 of the Handbook outlines the services provided by Silver Top.  The provision of those services is the same irrespective of whether the services are provided in respect of WAT or non-WAT taxi-operators and vehicles.

   65.There is no requirement that affiliated taxi-operators use the booking and dispatch services offered by Silver Top.  Rather, taxi operators may choose to obtain bookings exclusively from taxi-cab ranks, from persons hailing taxi-cabs from the street or by private arrangement.  However, if a taxi-operator chooses to access the Network he or she must do so in accordance with Silver Top’s procedures and processes.  Paragraph 31.1 of the Handbook states:

   “Where in the course of using the taxi-cab the driver elects to use the Network the driver shall use the Network in the manner set forth in the Network Procedures Manual”.

   66.Silver Top is unable to compel taxi-operators to accept any booking or to respond to a booking within a certain time frame. Silver Top is therefore unable to control response times. …

   68.… Silver Top does not contract with members of the public or with taxi operators for the provision of transport services.  The contract for transport services is between the taxi-operator and the member of the public. …

   71.By virtue of its relationship with taxi-operators and the nature of its services, Silver Top is unable to discipline taxi-operators who refuse to accept bookings offered to them by the Network or who refuse to prioritise certain bookings.

   Relationship with WAT Taxi Operators

   72.There are 105 WAT taxi-operators affiliated with Silver Top.

   73.There is no statutory requirement that bookings be made or accepted through the Network.  The majority of WAT users in Victoria make their own private arrangements with WAT taxi operators.  The Report of Wheelchair Accessible Taxi Inquiry prepared by HREOC, dated March 2002 … states that approximately 70 – 80% of WAT trips are arranged privately outside official booking systems. …

   74.Taxi-operators are entitled to accept bookings outside the Network.  However, these private arrangements impact on the taxi operator’s ability to accept WAT bookings from the Network.  Silver Top is unable to control WAT bookings made outside the Network. 

   75.Moreover, Silver Top is unable to compel WAT taxi-operators to accept or prioritise wheel chair bookings.  It does not have power to enforce compliance with licence conditions.  This is because of the nature of the relationship between Silver Top and the taxi-operators.   As such, it is unable to control response times by WAT operators. 

   76.Since approximately 2001, WAT taxi operators have been allowed to access both wheel chair and standard bookings via the booking and dispatch services provided by the various depots.  However, it is a condition attached to WAT licences that WAT taxi operators give priority to the carriage of wheel chair passengers over general passengers. 

   77.The Transport Act confers power on the regulator (the VTTD on behalf of the Department) to impose conditions on licences, to enforce licence conditions and to discipline licence holders in respect of breaches of licence conditions.  Licence conditions can be varied or the licence revoked by the VTTD for non-compliance. 

   78.Further, the VTTD has a disciplinary policy that applies to all WAT taxi operators in Victoria.  The policy provides that:

   “the driver of a WAT must not, without reasonable justification, refuse a wheelchair booking offered or allocated to that driver by the taxi booking network with which the WAT is associated’.

   … The power to enforce this disciplinary policy lies with the VTTD.

   79.Despite its limited power, in approximately January to March 2003, Silver Top attempted to restrict the types of bookings made available to WAT taxi operators.  The purpose of restricting bookings was to ensure that WAT taxi-operators accepted and gave priority to WAT bookings.  The action by Silver Top was unsuccessful.   Taxi-operators objected to the restricted bookings on the basis that they operated independent businesses.  Taxi operators, through the Transport Workers’ Union, indicated that they would commence Court proceedings against Silver Top for restraint of trade and associated breaches of the Trade Practices Act. 

   80.As noted above, prior to 2001 WAT licence holders were only able to accept general bookings from “the street” or by private arrangement.  It is open to the VTTD to vary licence conditions to require WAT operators to accept only WAT bookings and/or to accept and prioritise WAT bookings made through the Network.  However, the experience with CBS suggests that such a requirement may not be viable particularly given that 80% of WAT bookings are made outside the Network.  In any event, Silver Top does not have the power to vary licence conditions.

   81.Silver Top does not own taxi-cabs and is unable to control the number of WAT operators affiliated with the Network.  Accordingly, it has no ability to increase the number of WAT vehicles affiliated with the Network.

   82.Notwithstanding these difficulties, when Silver Top receives a WAT booking it makes every reasonable effort to offer advance bookings to WAT vehicles. 

   Complaint by Applicant

   84.… the Applicant telephoned Silver Top at 11.00 a.m. on 12 December 2001 and requested a WAT taxi for 3 p.m. that day. 

   85.The Applicant had an electric-powered wheelchair. 

   86.The booking was offered to taxi-operators but was not accepted by 3 p.m.  Silver Top repeatedly broadcast the booking to WAT taxi-operators. … (but) several taxi-operators rejected the booking. …

   87.Silver Top then offered the booking to the extended network, namely Black Cabs Combined, to enable the Applicant to access every WAT taxi-operator in the State.  The booking was still not accepted.

   88.At 3.43 p.m. the Applicant requested that a taxi-cab sedan be sent to the pick up location. … (but) the driver of the taxi-cab could not transport the Applicant. … Because of the size and weight of electric-powered wheel chairs they are generally difficult to lift and unable to be properly anchored and transported in non-WAT taxi-cabs.

   89.(The) booking and dispatch service provided by Silver Top was the same as the service provided for standard taxi bookings.  Silver Top made every reasonable effort to assist the Applicant by offering the booking repeatedly to all WAT taxi-operators in the Network and then to operators in the extended network.  For the reasons outlined above, Silver Top is unable to compel taxi-operators to accept or prioritise a booking.

   90.Silver Top is also unable to control the number of WAT taxi-cabs affiliated with Silver Top or their response time.

   91.Silver Top did not impose any condition on the Applicant in respect of the services provided. …

1. The following matters or conclusions can be extracted from Mr Franet’s evidence:

   a)The booking and dispatch services provided by Silver Top in respect of WATs are the same as those provided in respect of non-wheelchair bookings.

   b)Relative to the number of telephone calls received for general (non-WAT) taxi bookings, Silver Top allocates greater staff resources to the offering of WAT bookings than to standard bookings. Further, Silver Top’s communications staff often make a greater effort to find a driver willing to accept a wheelchair booking than they would make in other circumstances.

   c)Silver Top employs two to three persons per shift to receive telephone calls exclusively for wheelchair bookings, and to broadcast those bookings to WATs. Silver Top also provides a separate telephone number for wheelchair bookings.

   d)In Ms Ball’s case, the booking and dispatch service provided by Silver Top on 12 December 2001 was the same as that which would have been provided for a standard taxi booking in the same or similar circumstances. In accordance with its usual procedure, Silver Top offered the booking repeatedly to all WAT operators in their network, and then to WAT operators in the extended network. The result was that Ms Ball’s booking was eventually offered to every WAT in Victoria — but it was not accepted by any of them.

   e)Silver Top contends that it is unable to compel WAT operators to accept or prioritise bookings; nor is it able to control the number of WATs affiliated with Silver Top, or their response times.

   f)Because Silver Top does not own taxi cabs, it cannot increase the number of WAT operators affiliated with it.

   g)It would seem that approximately seventy to eighty percent of all wheelchair bookings are arranged privately — outside the network of taxi depots.

   h)Just as hirers are not obliged to use the services of a taxi depot, so there is also no requirement that taxi operators use the booking and dispatch services offered by Silver Top. Taxi operators can obtain bookings exclusively from taxi cab ranks, from customers hailing taxis from the street, or even by private arrangement.

2. In his oral evidence, Mr Franet said that, irrespective of when a customer may telephone Silver Top to pre-book a taxi, the booking is only offered to taxi operators approximately fifteen minutes before the time that it is required. This is Silver Top’s standard procedure and, according to Mr Franet, “fifteen minutes pre-booking should be adequate”.

What happened on 12 December 2001?

1. Annexure PJF-8 to Mr Franet’s  affidavit reveals the following:

   a)Ms Ball rang Silver Top at 11 a.m. on 12 December 2001 to book a WAT for 3 p.m. that afternoon.

   b)The booking was first offered to WAT operators at 2.45 p.m.. It was allocated to a particular WAT at that time.

   c)At 2.48 p.m., Silver Top was informed that the WAT to which the booking had been allocated was not vacant.

   d)At 2.55 p.m. Silver Top made an attempt to offer the booking to the extended network.

   e)Silver Top continued to make efforts to ensure that a WAT collected Ms Ball. At 3.43 p.m., she requested that a standard taxi be dispatched.

   f)On nine occasions prior to 3.43 p.m., WAT operators specifically rejected Silver Top’s requests to collect Ms Ball.

2. A standard taxi (not a WAT) was eventually dispatched to collect Ms Ball (at her request). The driver of the taxi was Mr Bruce, who also swore an affidavit in the proceedings. Ms Ball did not seek to cross examine him.

3. The effect of Mr Bruce’s evidence was as follows:

   a)He confirmed that his depot arrangements with Silver Top were in accordance with the arrangements between Silver Top and other affiliated drivers as described in Mr Franet’s affidavit.

   b)He confirmed that it was his choice whether to accept a job that had been broadcast on the Silver Top network.

   c)When he accepted the booking forwarded to him via the Silver Top network on 12 December 2001, he was not aware that Ms Ball had a wheelchair.

   d)When he arrived at the relevant address, Ms Ball’s friend carried her to the car and placed her in the front seat of Mr Bruce’s taxi.

   e)Although Mr Bruce was asked to place Ms Ball’s electric powered wheelchair in his taxi, he was unable to do so. The wheelchair was too big to fit in the back of the station wagon, and was too heavy for Mr Bruce to lift. He was also concerned that the batteries under the seat of the wheelchair might leak if it were to be placed on its side.

   f)After a lengthy delay, and after Mr Bruce contacted the Silver Top depot on a number of occasions (to “keep them informed of the situation”), a WAT eventually arrived.

   g)The driver of the WAT was able to load Ms Ball’s wheelchair into his WAT using the machinery available in his vehicle.

4. As indicated above, Silver Top will only have discriminated against Ms Ball — on the ground of her disability — if (amongst other things) Silver Top treated her less favourably than, in circumstances that are the same or not materially different, it would have treated a person without Ms Ball’s disability.

5. Having regard to the unchallenged evidence before the Court, I find that Silver Top did not treat Ms Ball less favourably than it would have treated a person without her disability in similar circumstances. That is not to say that the WAT operators affiliated with Silver Top (that is, the WAT operators themselves) treated Ms Ball as favourably as they would have treated a person without her disability — but the respondent to Ms Ball’s action in this Court is Silver Top, and not a WAT operator (or a group of WAT operators).

“Direct” Discrimination — Causal Nexus

1. The definition of disability discrimination in s.5 of the DDA requires that Ms Ball demonstrate that —

   a)Silver Top treated her less favourably than it would have treated a person without her disability in similar circumstances; and

   b)it did so because of her disability. In other words, there must be a causal relationship between Ms Ball’s disability and the less favourable treatment that she may have received.

2. Once again, and even if Ms Ball could have demonstrated that she had been treated less favourably than a person without her disability would have been treated in similar circumstances, it is not possible to conclude that Ms Ball’s disability was the cause of that treatment.

3. The fact of the matter is that Silver Top dealt with Ms Ball’s booking in the same way as it dealt with bookings for a standard taxi from persons without Ms Ball’s disability. Indeed, and because of the arrangements which it had in place to deal with requests for WATs, it is arguable that Silver Top treated Ms Ball more favourably than it would have treated a person without her disability in similar circumstances.

4. For all that, it is highly likely that, if a person without Ms Ball’s disability had contacted Silver Top at 11 a.m. on the day of the Wiggles Christmas Concert and booked a taxi for 3.00 p.m., he or she would have been on time for the show. That is so because there are far more standard taxis than WATs, and because standard taxis are unable to carry (and must therefore exclude from their pool of potential hirers) people with Ms Ball’s disability (or a similar disability which requires them to use a motorised wheelchair or similar cumbersome device for mobility). If WAT operators were to limit themselves to wheelchair-bound hirers, then the system established by Silver Top would operate very efficiently indeed — but they do not limit themselves to hirers with such a disability. They take other passengers as well. And because they transport people with a disability and people without a disability, they are arguably more likely to be occupied or engaged at any point in time than a standard taxi. Further, because there are far more hirers without a disability than there are disabled hirers (and because it is easier for a WAT operator to transport a person without a disability than it is for him/her to transport a wheelchair-bound hirer) WATs will frequently be unavailable to accept an offer from Silver Top to collect a wheelchair-bound hirer.

5. The question arises, therefore, whether Silver Top, by agreeing to dispatch WATs to collect hirers who are not wheelchair-bound — when those hirers could just as easily be transported in a standard taxi — can be deemed to have treated wheelchair-bound hirers less favourably than hirers without that disability. Able bodied hirers have a choice of taxi types (or, alternatively, the use of a specific type of taxi — relevantly, a WAT — is not denied to them), whereas the use of a standard taxi is, quite clearly, denied to a person with Ms Ball’s disability. I shall return to this subject later in these Reasons.

“Direct” Discrimination – Section 24(1)(a)

1. Ms Ball argued that drivers who refuse to accept and prioritise wheelchair bookings violate s.24(1)(a) of the DDA by refusing to provide a service to people with disabilities.

2. Ms Ball’s assertion may well be correct, but the evidence reveals that Silver Top (itself) did not refuse to provide Ms Ball with its services. It is fair to conclude that Silver Top did all that it could to dispatch a WAT to collect Ms Ball and her daughter on the day of the concert.

3. The relationship between Silver Top and its affiliated WAT operators has been described in Mr Franet’s affidavit. Silver Top argues that it cannot be responsible for the WAT operators’ actions in failing or refusing to accept or prioritise wheelchair bookings — and the fact of the matter is that there is insufficient evidence before the Court to effectively contradict that proposition.

4. Further, Silver Top argues that the VTTD is the entity to which complaints about the acceptance or prioritisation of wheelchair bookings by WAT operators should be directed — because it is the entity authorised to enforce licence conditions, and it is a condition of all WAT licences that licence holders must give priority to wheelchair bookings.

5. Again, there is insufficient evidence before the Court to effectively contradict this proposition.

“Direct” Discrimination — Section 24(1)(b)

1. Ms Ball argued as follows:

   WAT vehicles are designed and fitted to accommodate wheelchair users. There are limited numbers of these vehicles in the fleet. Silver Top imposes the condition that wheelchair users must wait for ridiculously long periods of time to get a taxi, if in fact they get one at all. People with disabilities are limited to a small number of vehicles with wheelchair access, and cannot use a conventional taxi. Silver Top also imposes the condition that a WAT vehicle is available and that there is a driver willing to accept a wheelchair booking.

   These terms and conditions are not imposed on persons without a disability, and more specifically, persons who do not use a wheelchair.

2. The services provided by Silver Top in respect of WATs are the same as those provided in respect of standard taxis. Indeed, according to Mr Franet, it is not unusual for a booking in respect of a standard taxi to be dispatched 15 to 20 times before it is accepted.

3. Further, and relative to the number of telephone calls received for general taxi bookings, Silver Top allocates greater staff resources and efforts to the offering of WAT bookings than to standard bookings. Ms Ball did not dispute that Silver Top’s communications staff sometimes put more effort into finding a driver to accept a wheelchair booking than they put into locating a driver willing to accept a standard booking.

4. Silver Top asserts that it is unable to control the actual response times for taxis (for the various reasons referred to in Mr Franet’s affidavit), and that because it cannot control or increase the number of WAT operators who choose to affiliate with Silver Top, there is little that it can do to reduce the waiting times that passengers must endure.

5. Whilst it is true that people with disabilities are limited to a relatively small number of vehicles with wheelchair access (because they cannot use a conventional taxi), it is also true that there are fewer people with disabilities who require the use of such vehicles than there are people without such disabilities. There was no evidence to suggest that the proportion of WATs to standard taxis within the Silver Top depot was inappropriate. Indeed, Ms Ball conceded that there are enough WATs affiliated with Silver Top to handle the demand for their services from wheelchair-bound hirers. The problem, it seems, is not the number of WATs in the Silver Top fleet, but their availability.

6. The expression “terms or conditions” appearing in s.24(1)(b) is similar to the expression “requirement or condition” appearing on s.6 of the DDA (dealing with indirect disability discrimination). The expressions are not necessarily identical.[4] In effect, the question posed by s.6 and 24(1)(b) of the DDA, in the present case, is whether the terms or conditions on which Silver Top provided Ms Ball with its services constituted a “requirement or condition” satisfying the criteria specified in s.6. If so, discrimination on the ground of Ms Ball’s disability in the terms or conditions on which Silver Top provided her with its services will have been established. To answer the question posed by s.6 and 24(1)(b) requires characterisation of the terms and conditions on which Silver Top was prepared to provide its services to Ms Ball.

   [4] See Catholic Education Office v Clarke (2004) FCAFC 197 at paragraph 98.

7. I shall return to this subject when discussing indirect discrimination, but would observe, at this stage, that Ms Ball could perhaps have put her case in the following way:

   Silver Top’s reluctance to appropriately discipline affiliated taxi operators who fail or refuse to comply with the terms of their VTTD licences amounted to a requirement or condition that wheelchair-bound hirers could avail themselves of Silver Top’s services only if they were willing and able to risk the possibility of a WAT arriving to collect them well after the expiration of a reasonable waiting period.

   Put another way:

   It was a term or condition on which Silver Top provided its services to Ms Ball that, because of its reluctance to effectively and appropriately discipline affiliated taxi operators who fail or refuse to comply with the terms of their VTTD licences, Ms Ball must be willing and able to risk the possibility of a substantial delay occurring between the desired or requested arrival time of the taxi and its actual arrival.

8. Although I have described what may be described as a notional term or condition on which Silver Top provided its services to Ms Ball (see the preceding paragraph), it seems to me that her complaint can be more comfortably categorised as an allegation of indirect discrimination.

“Direct” Discrimination — Section 24(1)(c)

1. Ms Ball argued that the manner in which a person with a disability receives a taxi service from Silver Top is significantly different from the manner in which a person without a disability would receive the same service — because the response time for a wheelchair booking is dissimilar to the response time for a regular booking.

2. In my opinion, there is little merit in this submission. The evidence reveals that the manner in which Silver Top provides its services to wheelchair-bound passengers is unexceptionable.

“Indirect” Discrimination

1. Ms Ball argued that Silver Top “… is guilty of indirect discrimination by refusing to force their drivers to prioritise wheelchair bookings. Their drivers must be made accountable.”

2. The difference between direct and indirect discrimination was described by Dawson & Toohey JJ in Waters v Public Transport Corporation (1991) 173 CLR 349 (at page 392) as follows:

   Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such “equal” treatment is that the former is in fact treated less favourably than the latter.

3. Leaving aside questions of whether direct and indirect discrimination are or might be mutually exclusive[5], it is apparent that — in order to succeed in her claim of indirect discrimination — Ms Ball must prove that:

   a)Silver Top required her to comply with a requirement or condition;

   b)a substantially higher proportion of people without Ms Ball’s disability comply or are able to comply with that requirement or condition;

   c)the term, condition or requirement is not reasonable; and

   d)Ms Ball does not or cannot comply with that requirement or condition.

   [5] See Mimms v State of New South Wales (2002) FMCA 60; Waters v Public Transport Corporation (1991) 173 CLR 349 at 393; Australian Medical Council v Wilson (1996) 68 FCR 46 at 55.

4. Silver Top argued that Ms Ball did not identify a requirement or condition imposed by it in relation to the provision of its services. It also argued that there is no relevant requirement or condition imposed on the provision of its services.

5. In Hinchliffe v University of Sydney (2004) FMCA 85, Driver FM held that the relevant requirement or condition (for s.6 of the DDA) must be one that is imposed not only upon the applicant, but also upon the class of persons with whom the applicant is to be compared. In other words, it must be a requirement or condition that is of general application (as it were).

6. When comparing an applicant’s position with the position of persons without that applicant’s disability, the Court is not obliged to have regard only to the position of the applicant himself or herself. The relevant comparison can be between an actual (or even hypothetical) class of persons with the applicant’s disability, and persons without that disability.[6]

   [6] See Catholic Education Office v Clarke (2004) FCAFC 197; Hinchliffe v University of Sydney (2004) FMCA 85.

7. In Catholic Education Office v Clarke (2004) FCAFC 197, the Full Court of the Federal Court identified certain propositions that can be derived from the High Court’s decision in Waters v Public Transport Commission (1991) 173 CLR 349. Those propositions are as follows:

   a)The identification of the services provided by the alleged discriminator, for the purposes of s.24(1)(b) of the DDA, is a question of fact.

   b)The question of whether the alleged discriminator has imposed a requirement or condition on persons wishing to use the relevant services is also a question of fact.

   c)The expression “requirement or condition” in s.6 of the DDA should be construed broadly, to include any form of qualification or prerequisite — although the actual requirement or condition should be formulated with some precision.

   d)The DDA should be given a generous interpretation, and an alleged discriminator should not be permitted to evade the statutory prohibition on indirect discrimination by defining its services so as to incorporate the alleged requirement or condition.

   e)An alleged discriminator may be found to have insisted on compliance with a “requirement or condition” within s.6 of the DDA, even though the requirement or condition was not explicitly imposed. It is sufficient for the requirement or condition to have been implicit in the conduct which is said to constitute discrimination.[7]

   [7] See Catholic Education Office v Clarke (2004) FCAFC 197 at paragraphs 102-4;

“Indirect” Discrimination — What is the Requirement or Condition?

1. Although Ms Ball did not adequately identify a requirement or condition imposed by Silver Top in relation to the provision of its services, it is possible — in my opinion — to distil a relevant requirement or condition from the evidence presented by Mr Franet. That requirement or condition is as follows:

   Members of the public who choose to utilise Silver Top’s depot services are required to accept the fact that the utilisation of those services involves the offering of the hirer’s taxi booking to some drivers who may, or are likely to, fail or refuse to comply with the terms of their VTTD licences, and who are unlikely to be disciplined by Silver Top for such failure or refusal. In other words, hirers are required to accept the internal arrangements and accommodations entered into or agreed upon between Silver Top and its drivers or affiliates.

1. The requirement or condition described in the previous paragraph of these Reasons was imposed upon all potential hirers who may be minded to utilise Silver Top’s depot services — whether such potential users were disabled or not. In that sense, the requirement is “neutral”[8]. Nevertheless, it is a requirement which had the potential of impacting adversely upon Ms Ball by reason of her disability.[9]

   [8] See Waters v Public Transport Corporation (1991) 173 CLR 349.

   [9] See the (notional) term or condition referred to in paragraph 55 above.

Can Others Comply with the Requirement or Condition?

1. Given that the vast majority of people without Ms Ball’s disability can hire and travel in either a standard taxi or a WAT, I find that the requirement is one with which the vast majority of people without Ms Ball’s disability comply and are able to comply.

Was Ms Ball Able to Comply with Silver Top’s Requirement?

1. Clearly, Ms Ball, and others with a similar disability, are quite capable — in a functional sense — of complying with Silver Top’s requirement. They can contact Silver Top and request or pre-book a taxi, and they can wait for the taxi to arrive (just as other hirers without their disability may have to wait for a taxi to arrive). If, however, Ms Ball and those with a similar disability regard it as a condition of ordering or pre-booking a taxi through Silver Top that a suitable taxi (in other words, a WAT) will arrive within a reasonable time after it has been ordered, or within a reasonable time after the time for which it has been pre-booked, then it is likely that the condition will not be complied with.

2. There can be no doubt that the need for Ms Ball to comply with Silver Top’s requirement can cause significant inconvenience for her (as was apparent on the day of the Wiggles Christmas concert). In all the circumstances of the case, however, I conclude that — on the balance of probabilities — Ms Ball could have complied with Silver Top’s requirement or condition as defined in paragraph 66 above.

Was Silver Top’s Requirement or Condition Reasonable in all the Circumstances?

1. The principles to be applied when determining whether a requirement or condition is “not reasonable having regard to the circumstances of the case” have been summarised as follows[10]:

   a)The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances.

   b)The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement on the other. Since the test is objective, the subjective preferences of the aggrieved person are not determinative, but may be relevant in assessing whether the requirement or condition is unreasonable.

   c)The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. It follows that the question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case.

   d)The Court must weigh all relevant factors. While these may differ according to the circumstances of each case, they will usually include the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discrimination of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement condition. However, the fact that there is a reasonable alternative that might accommodate the interests of the aggrieved person does not of itself establish that a requirement or condition is unreasonable.

   [10] See Catholic Education Office v Clarke (2004) FCAFC 197 at paragraph 115, State of Victoria v Schou (2004) FSCA 71 at paragraph 25, and the cases referred to in those two decisions.

2. The question of reasonableness was not argued directly during the course of the trial. Further, and having regard to my finding to the effect that Ms Ball could have complied with Silver Top’s requirement or condition, it may well be unnecessary for me to consider this subject at all. Still, Silver Top’s response to this question — as I understand its case — is clearly to the effect that the imposition of the requirement or condition was reasonable for the following reasons (at least):

   a)The VTTD (and not Silver Top) is responsible for the imposition and enforcement of licence conditions.

   b)Silver Top requires, expects and encourages WAT operators to give priority to wheelchair bookings in accordance with their licence conditions.

   c)Silver Top communications staff try hard to persuade WAT drivers to accept wheelchair bookings.

   d)Silver Top administers and facilitates the VTTD subsidy system which operates as an incentive to WAT operators to pick up disabled hirers who are not in their immediate area.

   e)Silver Top has attempted to restrict the types of bookings made available to WAT operators (in order to ensure that those operators accepted and gave priority to WAT bookings). This action by Silver Top was unsuccessful, because the WAT operators objected to the restricted bookings and, through their Union, indicated that they would commence proceedings against Silver Top for restraint of trade and associated breaches of the Trade Practices Act.

3. The primary thrust of Silver Top’s argument in relation to this factor is that it is for the VTTD to enforce compliance with its licence conditions, and not for Silver Top to do so. To use a colloquialism, Silver Top sees itself as being “between a rock and a hard place”.

4. I am conscious of the factors set out in paragraph 71 above, and record the following observations:

   a)I understand that the Court is required to weigh the nature and extent of the discriminatory effect of Silver Top’s requirement or condition (as I have defined it to be) against the reasons advanced by Silver Top for the “imposition” of the condition or requirement. I have weighed those matters, directly or indirectly, in this and the other sections of these Reasons.

   b)I have not asked myself whether Silver Top’s decision to “impose” the requirement or condition was correct.

   c)I find that the requirement or condition adheres for reasons beyond Silver Top’s simple convenience, and that there are practical and commercial reasons for it. I find, however, that there is no necessity for Silver Top to “impose” the condition or requirement, and will comment further upon this subject later in these Reasons.

   d)I consider that I have weighed all relevant factors — both for and against the existence of the requirement or condition — in these Reasons.

   e)I find that a reasonable alternative to the imposition of the requirement or condition is available: Silver Top could — if it were minded to do so — introduce and implement a disciplinary policy which appropriately penalises WAT operators who fail or refuse to comply with the terms of their licences (by failing or refusing to give priority to hirers in wheelchairs). But I accept that the existence of that alternative does not, of itself, establish that the requirement or condition now in place is unreasonable.

5. Silver Top’s failure or refusal to impose appropriate, internal sanctions on WAT operators who breach the terms of their licences by ignoring the requirement to give priority to wheelchair bookings is frustrating for Ms Ball, and a source of annoyance and serious inconvenience for her and others with her disability. If Silver Top had borne the onus of demonstrating that, on the balance of probabilities, its requirement or condition (as I have defined it to be) was reasonable in all the circumstances, then it is likely that I would have concluded that it had not discharged that onus. But it is for Ms Ball to demonstrate that the requirement or condition was not reasonable in all the circumstances of the case, and I find that she has not discharged that onus.

6. To the extent that Ms Ball relied upon the number of WATs available, the inappropriate waiting time for WATs, and Silver Top’s inability to force drivers to accept bookings, I am of the view that these are not requirements or conditions imposed (directly) by Silver Top in the provision of its booking and dispatch service. Silver Top submitted, and I accept, that — on the balance of probabilities — they are matters that fall within the provision of services by independent taxi operators who provide transport services, or within the purview of services provided by VTTD (which is authorised to enforce relevant licence conditions).

Conclusion

1. It follows from the above that Ms Ball has not succeeded in demonstrating that Silver Top discriminated against her on the ground of her disability — whether directly or indirectly. There was insufficient evidence before the Court to enable it to conclude, on the balance of probabilities, that such discrimination took place.

Observation/Comment

1. Notwithstanding that the evidence before the Court cannot sustain a finding that Silver Top discriminated against Ms Ball in any relevant way, the fact remains that certain aspects of Silver Top’s methods of operation, and its management of WATs and their operators, causes the Court considerable discomfort.

2. I have read the Report of Wheelchair Accessible Taxi Inquiry prepared by HREOC in March 1992. There is much of interest in the report, but little that is directly relevant to the specific issues for determination in this case.

3. Mr Franet’s evidence to the effect that a taxi is not dispatched until approximately fifteen minutes before the requested pick up time is problematical. He said that the request is “held in the storage of the computer” until its release. That is Silver Top’s normal procedure — and hence no taxi driver of any sort would have been aware that Ms Ball had requested a taxi until the dispatch was offered to the fleet.

4. In my opinion, it would be sensible for Silver Top to offer bookings for WATs well in excess of fifteen minutes before the requested pick up time. If nothing else, such a procedure would give the WAT operators in the area an opportunity to complete their current fares and realistically give priority to responding to the wheelchair booking.

5. My view in this regard appears to be reinforced by the following passage from Mr Franet’s evidence[11]:

   [11] See page 33 of the transcript.

   Ms Siemensma:       Mr Franet, why is it that you only offer bookings fifteen minutes ahead when the applicant rings at 11.00 a.m. for the taxi

   Mr Franet:Because of the unpredictable nature of the taxi bookings. Each taxi does not know where it will be after the next booking.

   Ms Siemensma:       The driver can say no?

   Mr Franet:The booking at 11.00 — a driver, unless he ceases to take other bookings between then and the 3.00 p.m. pick up point, doesn’t know whether or not they are going to be available, unless they have a series of pre-booked bookings that form a run and they go sequentially from one to the other. Occasionally that happens, but for a booking of this nature in a close-in city area … where there is usually a really strong supply of taxis and ready availability and the telephonist would have estimated that the work of the day and with the weather of the day that fifteen minutes pre-timing should have been adequate.

   Ms Siemensma:       How does the fifteen minutes pre-timing compare as between wheelchair bookings and standard bookings?

   Mr Franet:Standard bookings would only be pre-timed by about ten minutes.

6. Ms Ball asked Mr Franet if Silver Top has “performance standards”. He explained that it does and that drivers are obliged to comply with the standards outlined in Silver Top’s driver’s handbook. For example, drivers are required to meet certain dress standards and to comply with the regulations “as promulgated by the VTTD”. If a driver does not comply with the appropriate standards, then he/she may be disciplined. Mr Franet said:

   Mr Franet:There are disciplinary procedures … by way of suspension from radio communication, withdrawal of the personal identification number in the event of regular infringements. The first infringement in most cases is handled with counselling and retraining. A second infringement may be further retraining and warning, and subsequent infringements may lead to suspension from the network or monetary fines. …

7. When asked how Silver Top would react if it had a driver who continually refused to take bookings, Mr Franet said:

   Mr Franet:We can offer the bookings. If a driver chooses to take the fuses out of his radio system or ignores anything that’s offered our position then is to refer that person and the instances to the VTTD for their action.

   Walters FM:             Where is the cut off point between what you see is being the subject of Silver Top disciplinary proceedings, as you have described them, and what is not your responsibility?

   Mr Franet:We have a difficulty in forcing someone to pick up a booking. The vehicle may appear to be vacant, it may appear to be within range of the pick up area, but there are multiple explanations as to why as driver may or may not accept a booking … they can be having a prior booking that they are proceeding to, being close to changing shifts with a relief driver and bookings going the opposite direction or just … perhaps having a break and having a cup of coffee at the time the booking is offered and letting it go by.

8. Mr Franet emphasised that Silver Top does not create the licence conditions which apply to WAT operators, and that it does not issue the licence itself. If the driver does not comply with the terms of his/her licence however, then, according to Mr Franet, Silver Top refers the matter to VTTD. It seems that Silver Top only disciplines a driver in relation to a breach of the depot rules (and not in relation to a breach of, or non-compliance with, licence conditions).

9. When asked whether certain breaches of a driver’s licence would also be a breach of the depot rules, Mr Franet said:

   Mr Franet:That could be. We have had several discussions with the Transport Workers Union who dispute the priority clause in the licence conditions and the last verbal comment I received on the matter was that it was the taxi driver - operator’s commercial choice as to whether or not to accept a wheelchair booking. That matter is still under discussion between the taxi networks, the VTTD and whether or not the TWU has any jurisdiction there. I think … this is where the real problem lies. It’s not being able to resolve the power to direct. The power to direct – and the priority was written into licence conditions. The VTTD is not prepared and the taxi networks are not particularly willing, to have the power to direct assign. We believe that rightfully belongs with the government, and that matter has been unresolved now for some three years. …

   Walters FM:            I’m concerned that what you are saying is that — at least in relation to this area —  Silver Top has no mechanism in place to deal with what may be a clear and obvious breach of the condition of the licence?

   Mr Franet:That’s correct, Your Honour, and the uncertainty surrounding it is what is causing the difficulty.

   Walters FM:            When somebody joins Silver Top, … you require them to affirm that they are a person licenced to drive a taxi cab. Is that right?

   Mr Franet:That’s correct.

   Walters FM:            They are to be bound by the general rules and regulations of the company, enforced from time to time. Is that right?

   Mr Franet:That’s correct. …

   Walters FM:            It would appear in the application form (as completed by a driver who wishes to join the Silver Top depot) that there is no requirement for them to affirm to be bound by the terms of their licence. Is that what you’re saying?

   Mr Franet:It’s not our licence.

   Walters FM:            You require them to be licenced, but you don’t require them to abide by the terms of their licence?

   Mr Franet:That’s correct.

10. One of the main thrusts of Silver Top’s argument was that it is unable to compel taxi operators to accept or prioritise a booking. The fact of the matter is, however, that for the reasons explained by Mr Franet, it elects not to compel taxi operators to accept or prioritise bookings. That is so because it has chosen not to make the compliance by a taxi operator with the terms of his licence a real and enforceable condition of his affiliation with the depot.

11. Generally speaking, Silver Top has within its depot affiliated drivers who have one of two sorts of licences — a licence for a WAT or a licence for a standard taxi. One licence has a requirement that priority be given to passengers in wheelchairs. The other has no such requirement. It follows that Silver Top’s election to turn a blind eye (as it were) to the non-compliance by WAT operators with the terms of their licences can only work to the detriment of those potential hirers who have no alternative but to use a WAT. It has no adverse impact on potential hirers who are without such a disability and are able to travel in either WATs or standard taxis. Indeed, it means that more taxis are likely to be available to them than might otherwise be the case.

12. Ms Siemensma submitted that Silver Top’s failure to have in place or introduce and implement a disciplinary policy which appropriately penalises WAT operators who fail or refuse to comply with the terms of their licences (by failing or refusing to give priority to hirers in wheelchairs) does not — in all the circumstances of the present case — amount to direct or indirect discrimination within the terms of the DDA. I accept that that submission is correct in law for the reasons set out above. In my view, however, Silver Top should take steps to introduce and enforce such a policy as a matter of urgency.

13. Until such time as Silver Top does introduce such a policy, it seems to me that it should advise all potential WAT hirers that it is not prepared to (itself) enforce the requirement in its affiliated WAT operators’ licences to the effect that they must give priority to hirers in wheelchairs. Such potential hirers could then give thought to putting in place alternative arrangements (including, for example, ceasing to use the Silver Top booking service and proceeding to make private arrangements with the WAT operators themselves).

I, Barbara Mendleson, certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Walters FM

Deputy Associate:

Date: 14 December 2004