Cornwall v Aerial Capital Group Pty Ltd Trading as Canberra Elite Taxis (Discrimination)

Case •

[2022] ACAT 32

•

14 April 2022

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CORNWALL v AERIAL CAPITAL GROUP PTY LTD TRADING AS CANBERRA ELITE TAXIS (Discrimination) [2022] ACAT 32

DT 43/2021

Catchwords:               DISCRIMINATION – interlocutory application for summary dismissal – preliminary issue of proper respondent for the claim – whether taxi ‘booking service’ is distinguishable from taxi ‘passenger transport service’ – driver providing taxi transport service’ – where alleged discrimination occurred via a ‘street hail’ – principal and agent relationships – whether taxi booking company can be found liable for discriminatory actions of a taxi driver providing a taxi transport service – discrimination for the protected attribute of disability – discrimination by refusal to provide goods, services or facilities – respondent bears the onus of establishing that the application is ‘doomed to fail’ – interlocutory application for summary dismissal is dismissed – matter to proceed to hearing

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 23

Discrimination Act 1991 ss 4AA, 5AA, 7, 20, 67A, 121A
Human Rights Act 2004
Human Rights Commission Act 2005 s 53A
Road Transport (Public Passenger Services) Act 2001 ss 28, 36E, 47

Cases cited:Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing Co Pty Ltd [1975] HCA 49

Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47
Farah v Sandilands [2021] ACAT 92
Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132
Gindy & Chief Minister & ACT Government and Ors [2011] ACAT 67

Financial Integrity Group Pty Ltd v Farmer [2009] ACTSC 143
McLaughlin v Daily Telegraph Newspaper Co Ltd (No 2) [1904] HCA 51
Mewett v University of Canberra [2018] ACAT 61

Phillips v Australian Capital Territory [2021] ACAT 22
West & Anor v State of New South Wales & Anor [2007] ACTSC 43

List of

Texts/Papers cited:     G E Dal Pont, Law of Agency (LexisNexis Australia, 4th ed, 2020)

Tribunal:Member W Hawkins

Date of Orders:  14 April 2022

Date of Reasons for Decision:      14 April 2022

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 43/2021

BETWEEN:

CRAIG CORNWALL
Applicant

AND:

AERIAL CAPITAL GROUP PTY LTD TRADING AS
CANBERRA ELITE TAXIS
Respondent

TRIBUNAL:Member W Hawkins

DATE:14 April 2022

ORDER

The Tribunal orders that:

  1. The application by the respondent for summary dismissal is dismissed.

  2. The matter is listed for further directions on 29 April 2022 at 12:00pm.

………………………………..
Member W Hawkins

REASONS FOR DECISION

  1. The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refer to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current member.

  2. The tribunal stated in Mewett v University of Canberra:

    The Tribunal regards complaints referred by the Commission under section 53A as applications made to the Tribunal under section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). The complainant becomes the applicant for the purposes before the tribunal. The person or entity complained about is the respondent. This is consistent with section 53C of the HRC Act which provides that the parties to tribunal proceedings on a complaint referred to the tribunal, are the complainant and the person complained about.[1]

    [1] [2018] ACAT 61 at [11]

  3. This decision concerns a complaint filed by Mr Craig Cornwall (the applicant) for unlawful discrimination against Aerial Capital Group Pty Ltd trading as Canberra Elite Taxis (the respondent or Aerial) and, as referred to in the documents, ‘Rahul’, being the driver of Taxi 185 (the driver) upon the ground of disability in the ‘provision of goods, services or facilities’ under section 20 of the Discrimination Act 1991 (Discrimination Act) with the ACT Human Rights Commission (the Commission).

  4. The driver was identified and although he was notified by the Commission about the complaint, he did not communicate or engage with the Commission.[2] In any event, the applicant advised the Commission that he did not wish to attend a conciliation with the driver.[3] The Commission arranged a conciliation between the applicant and the respondent but agreement could not be reached.

    [2] ACT Human Rights Commission letter to Mr Craig Cornwall dated 5 August 2021

    [3] ACT Human Rights Commission letter to Mr Craig Cornwall dated 5 August 2021

  5. After the unsuccessful conciliation, the Commission referred the complaint to ACAT pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act). When responding to an email from the Commission regarding whether the complaint against the respondent and the driver were both to be referred to ACAT, the applicant responded that only his complaint against the respondent was to be referred.[4]

    [4] Applicant’s email to the Commission dated 11 August 2021

  6. ACAT listed the application for a directions hearing on 6 September 2021. At the directions hearing, the representative of the respondent submitted that it was not the correct respondent and that as consequence it had no liability to the applicant under the Discrimination Act. The respondent further submitted that liability, if any, must lie with the driver. As a consequence, ACAT needed to consider whether the applicant had an arguable case against the respondent as a preliminary issue. Further orders were made concerning the respondent filing and serving an application to dismiss the matter on the basis that it is not the correct respondent; a submission in support of the application; and a copy of any agreement between itself and the owner and/or (presumably the operator) of Taxi 185. The applicant was to file any submission or evidence in response. A timetable was ordered in relation to the filing and service of material and on 14 September 2021 the dates were subsequently varied in chambers. The interlocutory application for, in effect, the summary dismissal of the application was listed for hearing on 20 October 2021 before the Tribunal.

  7. The respondent filed a number of documents including an index of documents. One of the documents, although described as, “Application” and dated 4 October 2021, is more in the form of a written submission, however for the purposes of the preliminary hearing, the Tribunal regards the document as the application for summary dismissal. The remaining documents are discussed more fully below.

  8. The applicant did not file or serve any submissions in response. The applicant made oral submissions at the hearing on 20 October 2021.

  9. At the hearing on 20 October 2021, the applicant was self-represented and the respondent was represented by Mr David Lawless, the Chief Executive Officer of the respondent. The applicant appeared by telephone and the respondent by Webex.

  10. The applicant, in his original complaint to the Commission had also complained that he had been ‘vilified’ because of his disability pursuant to section 67A of the Discrimination Act. However, at the interlocutory hearing on 20 October 2021, it was agreed between the parties that the claim should proceed on the basis of discrimination rather than vilification.[5]

    [5] Transcript of proceedings 20 October 2021 page 28

  11. The onus is upon the respondent to establish to the Tribunal that it should exercise its power to dismiss the application.[6]

    [6] Gindy & Chief Minister & ACT Government and Ors [2011] ACAT 67 at [23]

  12. The hearing proceeded with the respondent making oral submissions and then the applicant making oral submissions in response to the respondent’s filed submissions. The applicant said they had seven submissions to make and that they were not in any particular order or strength.[7] The respondent then made further submissions in reply to the applicant’s oral submissions. During the hearing, the Tribunal raised a number of matters that required further consideration by the parties and at the conclusion of the hearing made directions for the filing and service of further written submissions and the matter was stood over for further hearing or directions on a date to be advised. Both parties have now filed and served further submissions and replies.

Events complained of

[7] Transcript of proceedings 20 October 2021 page 7

  1. For the purposes of the interlocutory hearing, the respondent conceded that the facts and circumstances of the event as described by the applicant in his complaint to the Commission had occurred.[8]

    [8] Transcript of proceedings 20 October 2021 page 6

  2. The applicant alleged that at 11.10am on Friday 4 February 2021, he attempted to enter Taxi 185 at the Mort Street, Civic taxi rank with his registered guide dog. He asked the driver through the front passenger window whether he should sit in the back due to COVID-19, and he said the driver said to him, “no dog”. The applicant informed the driver that it was a guide dog, but the driver continued to refuse service. The applicant then told the driver that it was the law and it was illegal for him to refuse service. The driver continued to refuse the applicant and his guide dog entry to the taxi. The applicant then walked to the next immediate taxi in the same rank and the driver of the second taxi accepted the applicant and his guide dog. The driver of the second taxi also informed the applicant of the number of the taxi who had refused the applicant service and the name of the taxi company.[9] The applicant later contacted the respondent through their online feedback form and says he did not receive a response. He also complained that this was the second time that he and his guide dog had been refused service by the respondent. The applicant in his complaint stated that as a result of the refusal of service he felt humiliated and that the delay caused him to miss his appointment and that he expended about $100 in additional taxi and Uber fares and missed an hour of work. The applicant said the lack of response to his online feedback caused him further stress and upset.[10]

The respondent’s written and oral submissions

[9] ACT Human Rights Commission Complaint form 19 February 2021

[10] ACT Human Rights Commission Complaint form 19 February 2021

  1. In support of the respondent’s written and oral submissions, they relied upon a number of documents. All of the documents were admitted into evidence. The respondent referred to a document headed ‘Operation of ACT Taxi Licence’ dated 14 February 2018 between Mr Errol and Mrs Joan Evans with Mikram Pty Ltd for the period 22 February 2018 to 21 February 2020. Presumably the agreement is continuing by mutual agreement between the parties. The respondent referred to a further document headed ‘Taxi Plate Lease Agreement for TX 185’ between the same parties dated 11 March 2020 and for the period 12 March 2020 to 11 March 2021. The document although signed by Mr and Mrs Evans is not signed by Mikram Pty Ltd but is signed by Mr M Ikram who presumably is a director of the Mikram Pty Ltd, but it is not clear. This would cover the date of the events complained of by the applicant. The respondent also provided a document headed ‘Aerial Capital Group Driver Affiliation Agreement’ dated 22 November 2018 (Driver Affiliation Agreement), the space for the insertion of the drivers name is blank but it would appear that the driver has signed the document. The respondent also provided a document headed ‘Canberra Elite Agreement’ between Aerial and Mohammad Ikram rather than Mikram Pty Ltd dated 22 February 2018. Mr Ikram is described as the operator in this document. The respondent tendered a number of other documents including a ‘New Driver Details Form’; a ‘Transport Industries Skills Centre Statement of Attainment’ for the driver; a ‘Jockeying Worksheet’; and Aerial System GPS for Taxi 185 and the second taxi for the relevant date and time.

  2. The respondent referred to section 20 of the Discrimination Act, and after quoting the section, submitted that in order to conclude that a person has engaged in unlawful discrimination, it is a requirement that the person in issue refused to ‘provide’ the relevant services.[11]

    [11] Respondent’s submissions dated 11 November 2021 page 1

  3. The respondent went into some detail as to the services it provides. In essence, the respondent submitted that the taxi industry is highly regulated, that the respondent does not provide passenger transport services to members of the public, but rather it provides transport booking services.[12] That is, it accepts bookings from members of the public and communicates those bookings to ‘Taxi Services’ who in turn provide the actual passenger service to the public. The respondent suggested that the services the respondent provides are better understood as ‘dispatch services’. People request a taxi by telephone or by app, and the respondent as a transport booking service, ‘dispatches’ a taxi by communicating the booking to a taxi driver which then provides the passenger service.[13]

    [12] Respondent’s submissions dated 11 November 2021 page 3

    [13] Respondent’s submissions dated 11 November 2021 page 2

  4. The respondent referred to section 28 of the Road Transport (Public Passenger Services) Act 2001 (Road Transport Act) which provides:

    Meaning of transport booking service

    In this Act:

    transport booking service—

    (a)     means a person who—

    (i)accepts bookings from people for bookable vehicles; and

    (ii)communicates the bookings to bookable vehicle drivers; but

    (b)     does not include—

    (i)a person who is a bookable vehicle driver if the booking is for the driver; or

    (ii)a person prescribed by regulation to not be a transport booking service.

    NotePerson includes a corporation as well as an individual (see Legislation Act, s 160).

  5. The respondent drew the Tribunal’s attention to the definition of a ‘transport booking service’ in the section, and that the section expressly excludes drivers of bookable vehicles.[14]

    [14] Respondent’s submissions dated 11 November 2021 page 2

  6. The respondent submitted that it was an ACT accredited transport booking service and referred to its accreditation dated 31 March 2020, noting the accreditation commenced on 29 February 2020 and expires on 28 February 2026.[15]

    [15] Respondent’s submissions dated 11 November 2021 page 6

  7. The respondent then emphasised the distinction between itself as a transport booking service and a taxi service and referred to section 47 of the Road Transport Act which provides:

    Meaning of taxi service

    A taxi service is a public passenger service operated using 1 or more taxis (including restricted taxis).

  8. The respondent submitted that taxi services provide the actual public passenger service, are required to be accredited by the ACT government and to be affiliated with a transport booking service such as the respondent in accordance with section 36E of the Road Transport Act.[16]

    [16] Respondent’s submissions dated 11 November 2021 page 3

  9. Importantly, the respondent submitted that it does not own taxis or taxi services and does not employ drivers or operators of taxi services. Further, the respondent’s sole function is to communicate bookings to drivers of taxi services, a service for which it charges a fee to the taxi services.[17]

    [17] Respondent’s submissions dated 11 November 2021 page 3

  10. As a consequence of the foregoing, the respondent submitted that the complaint by the applicant pertained to refusal of transport services by the driver of Taxi 185 rather than transport booking services. Further, the respondent submitted that the driver was not contracted by or employed by the respondent and was driving the taxi by virtue of a private agreement with another entity, being Mikram Pty Ltd (Mikram).[18]

    [18] Respondent’s submissions dated 11 November 2021 page 3

  11. The respondent explained that Mikram was the ‘operator’ rather than ‘owner’ of the taxi and that Mikram had a further agreement with the owners of the taxi, being Mr Errol Evans and Mrs Joan Evans, dated 11 March 2020 and expiring 11 March 2021.[19]

    [19] Respondent’s submissions dated 11 November 2021 page 8

  12. The respondent submitted that the operator agreement allows a taxi service to use the service of drivers, but it is the responsibility of the taxi service to ensure that a driver complies with the law. The respondent explained that taxi drivers must hold a taxi licence and enter into a Driver Affiliation Agreement with the respondent.[20]

    [20] Respondent’s submissions dated 11 November 2021 page 4

  13. The Driver Affiliation Agreement requires drivers to agree to abide by the law and the service standards of the respondent. Prior to entering into the affiliation agreement, a taxi driver is required to undergo the respondent’s training for which the respondent charges a fee to the taxi driver and training includes material about unlawful discrimination and disability discrimination and that the training specifically informs drivers that they have an obligation to take passengers with guide dogs.[21]

    [21] Respondent’s submissions dated 11 November 2021 page 4

  14. The respondent’s submissions emphasised that even if the circumstances of the applicant’s complaint are accepted, then as a matter of law, because the respondent does not provide passenger transport services to members of the public, but rather provides taxi despatch services, it follows that the respondent was not involved at all in the events complained of. As a result, the respondent did not provide ‘goods or services’ within the meaning of section 20 of the Discrimination Act and the complaint against it must fail.

The applicant’s oral submissions

  1. The applicant indicated that they had seven submissions to make. The submissions were in the form of seven responses to the respondent’s written submissions. The applicant referred to particular paragraphs of the respondent’s submissions and then made responding submissions or counter arguments. Having taken this approach there was some degree of overlap or repetition of the applicant’s submissions.

  2. The applicant’s first submission concerned section 20(c) of the Discrimination Act which provides:

    Goods, services, and facilities

    It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—

    …

    (c)     in the way in which the provider provides those goods or services or makes those facilities available to the other person.

  3. The applicant recognised the corporate structure of the respondent and that the respondent is a booking service rather than a taxi service but submitted that a ‘reasonable interpretation’ of the way in which those services are provided is the main point and, as a result, the way in which the services are provided ‘links’ them together.[22]

    [22] Transcript of proceedings 20 October 2021 pages 11-12

  4. The applicant’s second submission was that a booking service pursuant to section 47 of the Road Transport Act and a taxi service pursuant to section 28 of the same Act are affiliated, and the affiliation binds the respondent because the taxi service is unable to deliver the service without a booking service and this makes the respondent a part of the provision of the service.[23]

    [23] Transcript of proceedings 20 October 2021 page 13

  5. The applicant’s third submission was that the respondent’s function was not limited to a taxi booking service (as asserted by the respondent), but also included the training of drivers, the stipulation of service standards and the enforcement of service standards to drivers.[24]

    [24] Transcript of proceedings 20 October 2021 page 14

  6. The applicant’s fourth submission concerned the respondent’s Driver Affiliation Agreements with taxi drivers and how drivers had to complete the respondent’s own driver training for which the respondent charges a fee to the drivers. The training includes information directly relevant to the issue of unlawful discrimination and disability discrimination. The applicant noted that the training specifically informs drivers that they have an obligation to take guide dogs.[25] The applicant also returned to section 20(c) of the Discrimination Act and submitted that this demonstrated the way in which the service provider is providing those services and access to facilities.[26]

    [25] Transcript of proceedings 20 October 2021 page 15

    [26] Transcript of proceedings 20 October 2021 page 15

  1. The applicant’s fifth submission continued examining the Driver Affiliation Agreement and the respondent’s service standards and drew attention to the respondent contractually enforcing driver service standards and that this, he submitted, results in the respondent taking on or assuming responsibility for the delivery of the driver service.[27]

    [27] Transcript of proceedings 20 October 2021 page 16

  2. The applicant’s sixth submission related to the effectiveness of the respondent’s training and quality of drivers. The respondent had submitted that the second driver who took the applicant and his dog and provided information concerning the driver of Taxi 185 demonstrated the effectiveness of the training.[28] The applicant submitted that rather than show the effectiveness of the respondent’s training, it actually showed how ineffective the training was, as the first driver had refused service.[29] Further, the applicant submitted that this was not the first time that a respondent-affiliated taxi had refused him service and he was aware of other examples where drivers are refusing service to a person with a guide dog. The applicant submitted that this showed the training was ineffective given the pattern of behaviour over several years.[30] The applicant did not submit any evidence in support of his alleged previous complaints or complaints by other persons.[31]

    [28] Respondent’s submission dated 11 November 2021 page 4

    [29] Transcript of proceedings 20 October 2021 page 17

    [30] Transcript of proceedings 20 October 2021 pages 17-19

    [31] Transcript of proceedings 20 October 2021 pages 17-18

  3. The applicant’s seventh and final submission returned to the Driver’s Affiliation Agreement and section 20(c) of the Discrimination Act. The applicant, in addition to his earlier submissions, submitted that the precondition for a taxi driver to have a Driver Affiliation Agreement to utilise the respondent’s service binds the respondent to the provision of a taxi service and that as a result, the respondent was responsible.[32]

    [32] Transcript of proceedings 20 October 2021 page 19-20

  4. The applicant in summarising his submissions said that a reasonable interpretation of the Discrimination Act and the involvement of the respondent concerned, requires one to consider the respondent’s company logo painted on the side of taxis; the requirement for drivers and owners of the taxis to enter into agreements; and the imposing and enforcement of service standards upon taxi drivers and operators and that as a consequence any reasonable interpretation of the arrangements makes the respondent responsible for what had occurred.[33]

    [33] Transcript of proceedings 20 October 2021 pages 20

  5. In essence, the applicant submitted that applying the usual test for summary dismissal, there is evidence before the Tribunal that meets this standard and therefore the Tribunal should let the application proceed through to final hearing, The applicant should not be denied his rights to final hearing in light of there being evidence at least from which inferences are available that ground the elements of discrimination.

Further oral submissions and discussions

  1. The respondent first drew the distinction between the respondent’s customers who make a booking through it and a ‘street hail’. As the applicant in this instance was a street hail, the respondent had no attachment to the applicant’s booking.[34] The respondent also emphasised that their customers were those people who made bookings for a taxi either by telephone or via an app.[35]

    [34] Transcript of proceedings 20 October 2021 page 21

    [35] Transcript of proceedings 20 October 2021 at page 21

  2. The applicant emphasised that whilst the relevant legislation requires training of drivers, the respondent has placed an additional requirement upon its drivers in the provision of the service and adherence to discrimination legislation and as a consequence they bear responsibility. As the applicant colloquially put it, the respondent was ‘in the driver’s seat’. The legislation requiring the respondent as a taxi booking service to be in partnership with a taxi service places an extra layer of responsibility upon the respondent.[36]

    [36] Transcript of proceedings 20 October 2021 at page 22

  3. Following the oral submissions, the Tribunal discussed with the parties other provisions of the Discrimination Act such as sections 4AA and 121A and what effect, if any, these provisions of the Discrimination Act may have in relation to the application. The Tribunal discussed what effect, if any, the taxi livery, and taxi driver uniform might have; and what effect, if any, some irregularities in various documents including the execution or signing of the documents might have such as the Taxi Plate Lease Agreement between the owners of Taxi 185 and Mikram Pty Ltd. This document had been executed by Mr Muhammad Ikram who was presumably a director of Mikram Pty Ltd rather than by Mikram Pty Ltd.[37] The Tribunal then made directions concerning the filing of further written submissions to address these provisions; taxi livery, taxi driver uniforms and document irregularities.

    [37] Transcript of proceedings 20 October 2021 at pages 36-39

  4. The respondent filed further submissions on 10 November 2021 and the applicant on 24 November 2021. The respondent filed further submissions in reply on 1 December 2021.

Discussion of further written submissions

Section 4AA and Section 121A of the Discrimination Act

  1. Section 4AA of the Discrimination Act provides:

    Interpretation beneficial to people with protected attributes

    This Act must be interpreted in a way that is beneficial to a person who has a protected attribute, to the extent it is possible to do so consistently with—

    (a)     the objects of this Act; and

    (b) human rights under the Human Rights Act 2004.

  2. During the course of the hearing, the parties were referred to the section and to the tribunal decision in Phillips v Australian Capital Territory (Phillips).[38] The parties were advised that Phillips made it clear that the section obliges anyone interpreting the Discrimination Act to do so in a way that is beneficial to a person with a protected attribute, consistent with the objects of the Discrimination Act and the Human Rights Act 2004.[39]

    [38] [2021] ACAT 22 at [69]

    [39] Transcript of proceedings 20 October 2021 page 24; see also Phillips at [69]

  3. Neither the respondent nor the applicant directly addressed the section in their submissions.

  4. Section 121A of the Discrimination Act provides:

    Acts and omissions of representatives

    (1)     This section applies to the doing of an unlawful act (conduct).

    Note 1A complaint may be made about an unlawful act (see Human Rights Commission Act 2005, s 42 (1) (c)).

    Note 2Doing an act—see s 4A.

    (2)     Conduct engaged in on behalf of a person by a representative of the person is taken to have been engaged in by the person if the conduct was within the scope of the representative’s actual or apparent authority.

    (3)     However, subsection (2) does not apply if the person establishes that the person took all reasonable steps to prevent the representative from engaging in the conduct.

    (4)     In this section:

    representative, of a person, means an employee or agent of the person.

  5. The respondent submitted that as the driver is not an employee of the respondent, he could not be a ‘representative’ of the respondent on that basis.[40] As to whether he could be an agent of the respondent, the respondent made a number of submissions. The respondent submitted that there was no express written or verbal agreement with the driver appointing him as the respondent’s agent.[41] The respondent also submitted that in the absence of any written or verbal agreement, agency could only possibly be implied.[42]

    [40] Respondent’s submissions dated 10 November 2021 at [3]

    [41] Respondent’s submissions dated 10 November 2021 at [4]

    [42] Respondent’s submissions dated 10 November 2021 at [5]

  6. As to whether the agency could be implied, the respondent submitted that it had not asked the driver to act as its agent, and rather, the driver had entered into a bailee agreement with Mikram.[43] The respondent referred to the Road Transport Act and repeated the distinction between a transport booking service and a taxi service and as a result, the respondent would not be permitted to appoint an agent to perform a taxi service.[44] The respondent pointed to further factors, for example, that all fees charged by the driver were retained by him and Mikram. In performing a transport booking service for Mikram, the respondent charges Mikram a fee; and the respondent does not charge members of the public a fee when they use the respondent’s booking system.[45] The respondent referred to the Driver Affiliation Agreement and noted that the agreement does not have any clause appointing the driver as the respondent’s agent.[46]

    [43] Respondent’s submissions dated 10 November 2021 at [5]

    [44] Respondent’s submissions dated 10 November 2021 at [5], [6]

    [45] Respondent’s submissions dated 10 November 2021 at [7]

    [46] Respondent’s submissions dated 10 November 2021 at [8], [9]

  7. The applicant submitted the agency arose by virtue of the Driver Affiliation Agreement, by the driver operating a respondent branded vehicle, the respondent’s booking service and this was further evidenced by the driver generating income for the respondent, and the imposition of standards on drivers.[47]

Significance of the taxi livery and uniform

[47] Applicant’s submissions dated 24 November 2021 at [1.1]-[1.4]

  1. The respondent did not directly make submissions on this point; however they canvased the same in their submissions on section 121A of the Discrimination Act above. The applicant submitted that the taxi livery and driver uniform by themselves result in Mr Rahul being an agent.[48]

Did the respondent take all reasonable steps to prevent the driver’s conduct?

[48] Applicant’s submissions dated 24 November 2021 at [2]

  1. Where there is pursuant to section 121A(2) conduct by a representative within the scope of the representative’s actual or apparent authority, section 121A(3) provides that section 121A(2) will not apply if the person establishes that they took all reasonable steps to prevent the representative from engaging in the conduct.

  2. There were no submissions by either party in relation to section 121A(2) of the Discrimination Act. The respondent did not directly make submissions on section 121A(3). However, the respondent canvased the issue more generally in their submissions and submitted that driver training is provided as a precondition to entering into a driver affiliation agreement in order to maintain the quality of the respondent’s booking services.[49] They also referred to the second driver in the rank providing the information to the applicant discussed above. Therefore, one might infer that the respondent had taken all reasonable steps to prevent the driver from engaging in the conduct complained of.

    [49] Respondent’s submissions dated 10 November 2021 at [16]

  3. The applicant referred to earlier communications with Mr Paul Skipper, who was a previous general manager of the respondent and that Mr Skipper had allegedly said to the applicant that driver training had been reduced in its length and scope in relation to dealing with people with disability and the refusal of access to service animals.[50] No evidence has been given by Mr Skipper. The Tribunal is therefore unable to consider any communications attributed to him. Generally however, the applicant’s submission was that not all reasonable steps have been taken by the respondent.[51]

Significance of the irregularities of the contracts between the respondent and Mikram Pty Ltd and the driver

[50] Applicant’s submissions dated 24 November 2021 at [3.1]

[51] Applicant’s submissions dated 24 November 2021 at [3]

  1. The respondent did not make submissions on this point.[52] The applicant submitted that the irregularities are evidence of administrative deficiencies of the respondent and also relevant to the question of whether the respondent took all reasonable steps to ensure that drivers comply with applicable laws and requirements of service and possibly lead to voiding the agreements and as a consequence support an implied agency between the respondent and the driver.[53]

Consideration

[52] Respondent’s submissions dated 1 December 2021 at [5]

[53] Applicant’s submissions dated 24 November 2021 at [4]

  1. Section 7 of the Discrimination Act lists a number of attributes and section 7(e) states that ‘disability’ is a protected attribute. Section 5AA provides the meaning of ‘disability’ which is wide ranging but includes persons who are visually impaired or sight impaired. Section 5AA(2)(d)(iii) states that ‘disability’ includes reliance upon an assistance animal. Section 5AA(3) defines ‘assistance animal’ to include an animal trained to assist a person who is blind or vision impaired. Section 20(a) says that it is unlawful for a provider who provides goods or services to discriminate against another person by refusing to provide those goods or services to the other person.

  2. The respondent submits they are a ‘transport booking service’ as defined by section 28 of the Road Transport Act and that section 28(b)(i) expressly excludes drivers of bookable services. The respondent further submits that pursuant to section 47 of the same Act, that a ‘taxi service’ is a “public passenger service operation using one or more taxi…”[54]

    [54] Respondent’s submissions dated 11 November 2021 at [9]

  3. The respondent submits that it has a process which allows operators of taxi services and their drivers to become affiliated with the respondent. That includes the taxi service entering into a contractual agreement with the respondent to provide the dispatch and call service.

  4. Under the Canberra Elite Agreement between the respondent and Mr Mohammad Ikram rather than Mikram (referred to above), the operator, who is presumably Mikram has a number of specific obligations set out in clause 4, including presenting the vehicle “with such livery”, that the vehicle may be used as a “Canberra Elite Taxi” vehicle; to ensure that any driver of the vehicle “wear the uniform approved by [Elite]”; that there can be a conversion from Canberra Elite Taxi status and at such time “the vehicle must be debranded immediately”. Upon termination of the agreement, the operator “shall immediately” remove Elite’s “insignia and telephone numbers”.

Whether the applicant has an arguable case against the respondent

  1. The tribunal in Farah v Sandilands,[55] after examining the relevant authorities said:

    The approach taken by the courts to summary dismissal must necessarily be adapted to the procedural context of the tribunal. Accepting that ACT law, as expressed by Errington,[56] Galovac[57] and Financial Integrity,[58] maintains the traditional approach to summary dismissal, the Tribunal’s task in determining the interlocutory application is to assess whether there is no real question to be tried in the sense that the claim is bound to fail taking into the material provided by both parties at this stage of the proceedings on the assumption that every fact ‘pleaded’ by the applicant is true.

    [55] [2021] ACAT 92

    [56] Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47

    [57] Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132

    [58] Financial Integrity Group Pty Ltd v Farmer [2009] ACTSC 143

  2. Section 4AA of the Discrimination Act provides that the Act must be interpreted in a way that is beneficial to a person who has a protected attribute, to the extent it is possible to do so consistently with the objects of the Act; and human rights under the Human Rights Act.

  3. Section 121A of the Discrimination Act, provides that in effect, an employer is liable for an employee’s conduct in connection with the employee’s employment, and that a principal is liable for an agent’s conduct in connection with the agent’s actual or apparent authority, unless the employer or principal can prove that they took all reasonable steps to prevent the employee or agent from engaging in the conduct.

  4. It is not suggested that the driver was an employee of the respondent. The question is, however, whether the driver was an agent of the respondent and was his conduct complained of in connection with his duties as a representative or agent? If answered in the affirmative, then did the respondent take all reasonable steps to prevent the driver from performing the conduct complained of?

  5. ‘Agency’ is a principle of the civil law and although there may be no accepted strict legal definition of ‘agent’, there are some common scenarios that may give rise to the relationship of agent and principal. For example, ‘A’ may allege that ‘B’ is his or her agent to substantiate an allegation that B has breached a duty as agent owed to A. Alternatively, B may allege that he or she is A’s agent to substantiate a claim against A for some contractual or other entitlement arising out of the alleged agency.

  6. Other scenarios target rights and obligations as between an alleged principal and a third party which highlight why agency has been described as a “trilateral relationship”.[59] The party who alleges the existence of an agency relationship bears the burden of proving so, and moreover of establishing whether or not the agent acted within the scope of his or her actual (or ostensible) authority.[60] The creation of the agency can come about in a number of ways. It is clear that the respondent has not entered into a formal or contractual relationship with the driver to appoint them as their agent. Nor would it be that the respondent has sought to ratify the agency with the driver retrospectively as can sometimes be the case. Here, if there is an agency relationship, it would most likely come about by operation of law. In the present scenario, the relationship might come about irrespective of assent or intention (whether prospective or retrospective).[61] The relationship may also come about by ‘holding out’ or estoppel. This arises where the principal either by words or conduct, leads others to believe that another is the principal’s agent. In this scenario, the principal will not be allowed to deny the authority of the agent to act as the principal’s agent and the question of whether one person has led third parties to believe that another person is their agent is a question of fact.[62]

    [59] See for example, G E Dal Pont, Law of Agency (LexisNexis Australia, 4th ed, 2020) at [1.1]

    [60] McLaughlin v Daily Telegraph Newspaper Co Ltd (1904) 1 CLR 243 at page 276

    [61] See for example, G E Dal Pont, Law of Agency (LexisNexis Australia, 4th ed, 2020) at [6.1]

    [62] Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising and Addressing Co Pty Ltd (1975) 133 CLR 72 at pages 78, 81

  7. Many of the cases revolve around contractual disputes and involve questions about an agent’s ability to bind a principal, but equally liability may arise in tort such as where an agent might be negligent and cause injury to a third party and the principal is sued by the third party in negligence. Neither of those situations apply here. However section 121A of the Discrimination Act is clear, that is, subject to whether the conduct complained of was within the scope of the representative’s actual or apparent authority, then unless the principal can show that they took all reasonable steps to prevent the representative from engaging in the conduct, the principal might be liable for the actions of its representative (agent).

  8. The driver was required to complete a New Driver Details form for the respondent; to enter into an Aerial Capital Group Driver Affiliation Agreement; and to complete a Jockeying Worksheet. Each of these documents are branded or headed ‘Aerial Capital Group Limited’. In particular, the Aerial Capital Group Driver Affiliation Agreement, places a number of obligations upon the driver including notifying the respondent and the bailor of any taxi he may bail or may wish to bail.

  1. The respondent in their submissions agree the driver was required to undergo the respondent’s training for which a fee is charged to drivers and that the training includes information directly relevant to the issue of unlawful discrimination and disability discrimination.

  2. Beyond the above, no details of the training were provided or when it was conducted and the outcomes of the training particularly for the driver apart from that he attained ‘competency’. Presumably for the driver, it was undertaken around the time of the agreement with the driver dated 22 November 2018. The Statement of Attainment is dated 17 December 2018. Interestingly, the competency is described as ‘TLIC 2040 Provide wheelchair accessible taxi services to passengers with disabilities’. The document is silent as to the circumstances of the complaint raised here. There is no evidence of any refresher or additional training since that time. There was no evidence as to whether the training has changed in scope or duration since its inception. There was no evidence as to formal process or outcome of the applicant’s complaint.

  3. The respondent operator agreement was with Mr Ikram rather than Mikram Pty Ltd, but putting that aside, the agreement sets out the livery of the vehicles; requires any driver to wear the uniform approved by the respondent and, if the agreement is terminated, that the vehicle must be de-branded immediately.

  4. The applicant made complaint via the respondent’s online complaint system but said he received no response. The complaint may have been via the respondent’s ‘contact us’ page. The existence of the page invites at least contact if not a complaint and suggests the respondent taking responsibility for the vehicles, drivers, bookings and presumably complaints. There was no evidence presented that the complaint system is limited to bookings or, that if the complaint involves a driver or the condition of a taxi, the complaint should be directed elsewhere.

  5. If an aggrieved person wanted to make a complaint, then given the vehicle branding and driver uniform, the Tribunal considers that the person would reasonably assume that the complaint should be made to the respondent. Here the situation is somewhat different, as the applicant is blind and was not able to see the branding or uniform. However, the Tribunal is mindful that notwithstanding this, when the applicant communicated with the second driver, the second driver provided the relevant taxi number and the respondent’s name to the applicant as a point of contact.

  6. The respondent submitted that they were not involved in the transaction at all, the applicant being a ‘street hail’. The Tribunal is mindful of the distinction between a street hail and a person using a booking service for a taxi, but whilst there is no complaint about the booking service, there is a complaint concerning a driver’s conduct. If there had been a taxi booking, and the driver had then refused the applicant service, the respondent may have raised similar threshold issues of responsibility as they have here. In such a situation, the applicant would likely have made similar submissions as they have in the present application. As it is, the Tribunal has to determine the application before it on the evidence presented and the submissions made.

  7. In light of the beneficial nature of legislation as a consequence of section 4AA of the Discrimination Act, there is a arguable case that the driver at the relevant time may have been an agent engaging in conduct that was within the scope of his actual or apparent authority as a driver as is required by section 121A(2).

  8. If it is established that the driver was an agent of the respondent, then the issue becomes whether the respondent can establish that they took all reasonable action to prevent the driver from engaging in the conduct as is required by section 121A(3).

  9. The Tribunal has referred to driver training. In the Tribunal’s view, there is an arguable case that the respondent may not have taken all reasonable steps to prevent the driver from performing the conduct complained of. The applicant’s complaint referred to a similar complaint where he and his guide dog were refused service by a taxi driver and a complaint was made to the respondent. There was no evidence of the date and time and outcome of the complaint. Similarly, in relation to discussion of other complaints by other persons, it is also not known whether other similar complaints had been made against the driver and the outcome of those complaints. If other complaints can be substantiated and they involved the respondent, they may support the proposition that the training is inadequate if the actions complained of by (at least by the applicant) are recurring.

Conclusion

  1. Connolly J from his judgment in a summary dismissal application in the ACT Supreme Court said:

    These are all arguments which, it seems to me, should be made after a hearing and when the facts are established. This decision should not be taken to mean that I have formed a view, one way or another, as to whether the plaintiffs’ claim will succeed. All that I have decided is that the plaintiffs’ claim is not one that is bound to fail and the plaintiffs’ case is arguable.[63]

Next steps

[63] West & Anor v State of New South Wales & Anor [2007] ACTSC 43 at [43]

  1. The matter is to be listed for further directions. During the hearing the parties discussed other evidence that may need to be led if the application is not dismissed. On this point, it should be observed that the tribunal has a broad discretion to determine appropriate procedures and the further conduct of the matter, including questions of evidence, so this is an issue that is to be decided by the tribunal, in consultation with the parties.[64]

Order

The Tribunal orders that:

[64] ACT Civil and Administrative Tribunal Act 2008 (ACT) s 23

  1. The application by the respondent for summary dismissal is dismissed.

  2. The matter is to be listed for further directions on a date to be advised by the tribunal.

………………………………..

Member W Hawkins

Date(s) of hearing: 20 October 2021
Applicant: In person
Respondent: Mr D Lawless, authorised representative

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Cases Citing This Decision

1

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Statutory Material Cited

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