Danilov v Transport for NSW

[2020] NSWCATAD 70

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Danilov v Transport for NSW [2020] NSWCATAD 70
Hearing dates:	5 February 2020
Date of orders:	02 March 2020
Decision date:	02 March 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	Leave for the applicant’s complaint of age discrimination to proceed is refused under s 96 of the Anti-Discrimination Act 1977.
Catchwords:	EQUAL OPPORTUNITY – leave to proceed - principles applying to grant of leave – age discrimination – provision of goods and services
Legislation Cited:	Anti-Discrimination Act 1977(NSW)
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	Alex Danilov (Applicant) Transport for NSW (Respondent)
Representation:	Solicitors: Transport for NSW(Respondent)
File Number(s):	2019/00395111
Publication restriction:	Nil

Judgment

1. The applicant in these proceedings seeks the leave of the Tribunal to proceed with his complaint under s 96 of the Anti-Discrimination Act 1977 (the AD Act). On 11 June 2019 the President of the Anti-Discrimination Board of NSW received a complaint under the AD Act from the applicant against the respondent, Transport for NSW. The applicant alleged that he was discriminated against on the basis of his age in the provision of goods and services.

2. The President declined the complaint as lacking in substance under s 92 of the AD Act. On 29 October 2019 the applicant requested that the complaint be referred to this Tribunal under s 93A of the AD Act.

Legislation and principles governing the grant of leave

3. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the Act).

4. Section 92 provides:

“92 President may decline complaint during investigation

(1)   If at any stage of the President’s investigation of a complaint—

(a)   the President is satisfied that—

(i)   the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii)   the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii)   the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv)   another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v)   the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi)   the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii)   it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b)   the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

(2)   The President, in a notice under this section, is to advise the complainant of—

(a)   the reason for declining the complaint or part of the complaint, and

(b) the rights of the complainant under sections 93A and 96.”

5. Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so ( s93A).

6. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).

7. Section 96 of the ADA gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).

The nature of the complaint

8. The applicant stated that he is a senior citizen and lost his Gold Opal card which is a card issued by Transport for NSW entitling senior citizens to concession price travel. He complained that he was required by the respondent to order a replacement card online rather than replace it in person and pay full fares in the meantime until the replacement card was received by mail. There was no option to refund the difference between the fares. He claimed that being required to comply with this condition constituted discrimination.

9. Section 49ZYA of the AD Act provides:

“49ZYA What constitutes discrimination on the ground of age

(1)   A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if the perpetrator—

(a)   on the ground of the aggrieved person’s age or the age of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or

(b)   requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2)   For the purposes of subsection (1) (a), something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.

(3)   (Repealed)”

10. Section 49ZYN provides:

“49ZYN Provision of goods and services

(1)   It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age—

(a)   by refusing to provide the other person with those goods or services, or

(b)   in the terms on which the other person is provided with those goods or services.

(2)   Nothing in subsection (1) applies to or in respect of—

(a)   benefits, including concessions, provided in good faith to a person by reason of his or her age, or

(b)   holiday tours offered or provided to persons who are of a particular age or age group.

(3)   Nothing in this section renders it unlawful for a person to discriminate against a person on the ground of age in disposing of goods, or in providing services, by gift or will or in accordance with the terms of a gift or will.

11. Mr Danilov’s complaint is of direct discrimination – that is, that he was treated less favourably than in the same circumstances, or in circumstances which are not materially different, Transport for NSW treats or would treat a person who is not of that age or age group. The applicant said this conduct was discriminatory as it did not apply to other concession card holders. He said it was a hardship for him to have to go through the processes and pay more in the meantime.

The respondent’s case

12. The respondent stated that because the Gold Opal Card is only available to persons who meet specific conditions, it was necessary to check that the applicant (or any person who loses a Gold Opal Card) holds either a Senior’s Card or a Pensioner Concession Card. This check is done with other government agencies. If that entitlement changes the card can be cancelled. In the event that the Card is lost, it must be cancelled before a replacement is issued.

13. The respondent denied that the requirement was imposed on the ground of age. Moreover, the respondent’s conduct was exempt under s 49ZYN(2)(a), as the Gold Card was a benefit provided to persons by reason of their age.

14. The respondent said that other persons who lost a concession card applicable to them such as job seekers, apprentices and students also had to have their entitlements checked and also had to pay full fare until the replacement was issued.

15. These requirements helped to ensure that people did not falsely claim concesssions which caused revenue loss.

Consideration

16. There is no dispute that the respondent provides goods and services. It has not refused to provide a Gold Opal Card to Mr Danilov but it has provided it on specific terms.

17. To prove direct discrimination on the ground of age, Mr Danilov would have to establish that:

1. in the terms on which Transport for NSW has provided him with the Gold Opal Card, it has treated him less favourably than it did treat or would have treated a person who was of a younger age (differential treatment); and

2. at least one of the reasons for that treatment was Mr Danilov’s age (or a characteristic that is generally imputed to persons who are of his age or age group) (causation).

18. Mr Danilov’s complaint faces the obstacle that there is evidence that other persons who are entitled to concession cards but who are younger than himself, are subjected to the same or similar requirements by Transport for NSW. That being so, I do not see how it can be said that he was treated less favourably than those persons or that at least one reason for the treatment was his age. The available information tends to show that it was for reasons of protecting Transport for NSW’s revenue.

19. Transport for NSW has submitted that the Gold Opal card is a benefit provided to Mr Danilov because of his age. That is true, however the purpose of s49ZYN(2)(a) of the Act is to exempt benefits provided to persons of a certain age from claims of discrimination by persons who are not of that age, which is not the case here.

20. Nevertheless, I consider that the prospects of Mr Danilov succeeding in proving age discrimination, should his complaint be allowed to proceed, are remote. In those circumstances it would not be fair and just to grant leave to proceed.

Orders

1. Leave for the applicant’s complaint of age discrimination to proceed is refused under s 96 of the Anti-Discrimination Act 1977.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 02 March 2020