Debbie Van Hoek on behalf of Matthew Van Hoek v Keolis Downer Northern Beaches Pty Ltd

[2025] NSWCATAD 237

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Debbie Van Hoek on behalf of Matthew Van Hoek v Keolis Downer Northern Beaches Pty Ltd [2025] NSWCATAD 237

Hearing dates:

8 May 2025, 27 June 2025

Date of orders:

26 September 2025

Decision date:

26 September 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Tibbey, Senior Member

F Duffy, General Member

Decision:

(1) Claim of discrimination has been substantiated.

(2) Pursuant to s108 of the Anti-Discrimination Act, the amount of $10,000 is to be paid to the applicant by 24th October 2025.

Catchwords:

DISCRIMINATION – disability discrimination

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Bassili v The Star Pty Ltd [2016] NSWCATAD 167

Commission of Corrective Services v Aldridge [2000] NSWADTAP5

Commissioner of Police v Estate Russell (2002) 55 NSWLR 232

DHL v Nationwide News Pty Ltd [2013] NSWCATAD 92

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Frost v TAFE [2019] NCATAD 62

Frost v TAFE NSW (No 2) [2019] NCATAD 129

Hall v Shieban (1988) 20 FCR 217

Henville v Waker (2001) 2206 CLR 459

Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99

John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131

Karnauchow v State of NSW, NSW Department of Communities and Justice (Corrective Services) [2023] NSWCATAD 326

MM & AM v State of NSW, Department of Community Services [2002] NSWADT 256

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Purvis v New South Wales (2003) 217 CLR 92

Robinson v Commissioner of Police, NSW Police Force [2013] NSWIRCComm 1027

Robinson v Commissioner of Police [2014] NSWIRComm 35

Spence v Roberts (No 2) [2006] NSWADT 361

Texts Cited:

Australian Anti-Discrimination and Equal Opportunity Law, Rees N, Rice S and Allen D, The Federation Press, 3rd edition. 2018

Category:

Principal judgment

Parties:

Debbie Van Hoek on behalf of Matthew Van Hoek (Applicant)

Keolis Downer Northern Beaches Pty Ltd (Respondent)

Representation:

Self-represented

File Number(s):

2024/00287384

Publication restriction:

Nil

REASONS FOR DECISION

1. This was an application alleging disability discrimination by a bus company against a man with an assistance animal who travelled on a bus that was owned and operated by the respondent bus company.

What is required in order to establish discrimination on the grounds of disability?

2. Section 4 of the ADA defines the term ‘disability’ as follows:

“disability” means –

(a)   Total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b)   The presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c)   The malfunction, malformation or disfigurement of a part of a person’s body, or

(d)   A disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e)   A disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

3. Section 49A provides as follows:

“A reference in this Part to a person’s disability is a reference to a disability” –

(a)   That a person has, or

(b)   That a person is thought to have (whether or not the person in fact has the disability), or

(c)   That a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d)   That a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability)”.

4. Section 49B provides that:

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

(a)   on the ground of the aggrieved person’s disability or the disability 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 does not have that disability or who does not have such a relative or associate who has that disability, or

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

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

(3)   For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A)   For the purposes of, but without limiting, this section, the fact that a person who has a disability—

(a)   is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or

(b)   is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,

is taken to be a characteristic that appertains generally to persons who have that disability.

(4)   A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

5. Section 49M provides that:

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

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

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability in the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

6. In Karnauchow v State of NSW, NSW Department of Communities and Justice (Corrective Services ) [2023] NSWCATAD 326 the Tribunal stated as follows at [66] – [67]:

‘Services’ is to be given its ordinary and broad meaning. It has been described to include ‘any act of helpful activity’ or as ‘conduct tending to the welfare or advantage of another’: Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349 (Waters) and in IW v City of Perth [1997] HCA 30; (1997) 191 CLR1 (IW) where Brennan CJ and McHugh J found that:

...use of property or facilities owned by or under the control of the Council may constitute the provision of a service... So too may the provision of intangibles such as advice and information in respect of building and town planning matters.

Brennan CJ and McHugh J at 11-12 and Dawson and Gaudron JJ at 22-23 in IW called for a plenteous perspective on the provisions in the Act, mindful of the purpose and social goals of preventing unlawful discrimination in various aspects of community life’.

7. See also the extensive discussion of ‘services’ in MM & AM v State of NSW, Department of Community Services [2002] NSWADT 256 at [13] – [27]. We find that the provision of bus services falls squarely within the term ‘services’ for the purposes of the Act.

8. Section 4A of the ADA provides that:

If—

(a)   an act is done for 2 or more reasons, and

(b)   one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

9. In order to establish a claim of discrimination, the applicant needs to establish that he was in fact as treated less favourably than others in the same or similar position (sometimes referred to as ‘differential treatment’) and that at least one of the reasons he was treated less favourably was “on the grounds of” his disability (sometimes referred to as ‘the causation question’).

10. In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [60] – [65], the Tribunal discusses how the question of whether or not there has been “less favourable treatment” of the applicant “than others in the same or similar position” where the comparator is a hypothetical comparator, as it is in this case. This case is similar to Dutt in that, as stated in Dutt:

“The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant’s race would have been treated differently.”

11. This case involves alleged disability discrimination rather than alleged racial discrimination, as in Dutt.

12. The words “on the grounds of” have been paraphrased as “because of”, “due to,” “a real” reason, a “genuine” reason or “true reason” for the treatment alleged to have been discriminatory (Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]).

13. A person may be treated in a discriminatory fashion on the grounds of a disability because the person has or had, is thought to have had or to presently have, or will have in the future, or is thought to have in the future; or because a person exhibits a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. Where proven, each of those constitute direct disability discrimination.

14. A person may also experience indirect disability discrimination as set out in s49B(1)(b) of the ADA, if a requirement operates differentially on a person with that disability as compared with a person who does not have that disability, perceived disability or characteristic of that disability, that will also constitute indirect disability discrimination. That was not alleged in this case.

15. The applicant bears the onus of proof that he was treated less favourably “on the grounds of”, “because of” or “due” (at least in part) to the disability (Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56]).

16. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered (Dutt v Central Coast Area Health Service [2002] NSW ADT 133 at [59] – [65]; Commission of Corrective Services v Aldridge [2000] NSWADTAP5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].)

17. It is not the case that because a person has a disability and experiences something he or she perceives as “adverse” to that person, that the conduct is discriminatory simply because the person has a disability. The person needs to prove on the civil standard, which is the balance of probabilities, that the conduct impugned occurred “on the ground of”, “due to” or “because of” the disability of the person. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned was the disability of the person, actual or imputed.

Background

18. The applicant is an adult male, aged 29 years. Due to his intellectual and other disabilities, the claim was brought by his mother on his behalf but was clearly brought with his concurrence and active involvement. In these Reasons for Decision, for convenience, Mr Matthew Hoek will be referred to as ‘the applicant’.

19. It was asserted by the applicant and not contested that he has an intellectual disability and physical disability, namely cerebellar atrophy, cerebral palsy and anxiety. We accept that these constitute disabilities for the purposes of the Act.

20. The applicant alleges that he was using a wheelchair when, on 19 March 2023, he was refused entry onto the B1 bus service leaving Dee Why at 10.40am.

21. It was not contested that he was accompanied by a support worker, Ms Chelsea Body, and an Assistance Animal within the meaning of s49B (3) of the Act. Her name is Molly. She wears a bright yellow and blue service jacket with the words ‘Assistance Dog’ on it. It was not contested that Molly was, at the relevant time, accredited by MindDogs as an Assistance Animal.

22. Molly was present at the Tribunal when the applicant gave evidence on 27 June 2025. Molly was a small dog, quiet and unobtrusive, sitting on the lap of the applicant. Her blue and yellow jacket was displayed on her body and was fairly obvious.

23. The applicant alleges that as he, his support worker, Ms Chelsea Body and Molly were about to board the bus, the bus driver shouted at Ms Body, pointing his finger at Molly, the assistance animal, stating “that thing is not coming on the bus” and would not permit them to board the bus.

24. The applicant, his support worker and Molly went to the back of the bus queue waited until all other passengers had boarded the bus, then showed the bus driver the official papers that certified that Molly was a fully accredited Assistance Dog.

25. The bus driver then allowed them to board the bus. The applicant says that this was done “reluctantly”.

26. The applicant alleges that the driver continued to berate the applicant and his support worker and refused to permit the support worker to sit with the applicant, even though there was a seat available next to him. The bus driver directed her to the back of the bus. The support worker refused to leave the applicant and continued to sit beside him on a vacant seat, “the third set” of the three folding seats facing into the centre of the bus.

27. The applicant alleges that at no time was he obstructing other passengers. There was a passenger with a pram on the other side of the bus who was not being obstructed by the presence of the applicant, his support worker and/or Molly, who was on the lap of the applicant. the bus driver evidently took a different view.

28. The applicant alleges that he and his support worker were embarrassed and left traumatised by the experience. The applicant is now reluctant to use public transport, fearing he will encounter the same issue again.

29. Ms Debbie Van Hoek, the mother of the applicant, says that she telephoned the bus company the next day, 20 March 2023, to complain about the incident and followed up this communication with email communication. Despite this, the respondent noted that 7 days after the incident, the CCTV footage of the bus was overwritten on the hard drive. The respondent agreed that this was unfortunate. It meant that there was no way that the respondent (or the applicant, or the Tribunal) could objectively verify what had occurred. That was a matter that was within the control of the respondent, who ought to have actively taken steps to ensure that the CCTV footage was retained.

30. Mr Treglown, for the respondent, stated that a double decker bus such as the one ridden by the applicant on 19 March 2023, has 11 cameras on it that record material. He stated that when Ms Van Hoek made her complaint on the Transport Info Line on 20 March 2023, it should have been received by the depot management within two days. If so, there was time enough to ensure that the footage was retained. Neither he nor Mr Abrahams could explain why the footage was not retained.

31. The applicant lodged a complaint with Anti-Discrimination NSW on 31 March 2023.

32. The applicant argues that he was refused access to the bus in contravention of ss49B(1)(a) and 49B (3) of the Act.

33. He also argues that he was treated rudely and disrespectfully when he sought to board the bus and whilst on the bus, unlike other passengers, and therefore less favourably than other passengers.

34. The respondent’s position was summarised in their submissions in reply, filed on 28 April 2025, as follows:

a) KDNB acknowledges that the Complainant’s dog was initially delayed boarding by the Respondent’s driver, however, the driver did permit boarding once the Complainant’s carer identified that the dog was an assistance/support animal.

b) In relation to the alleged refusal by the driver to allow the Complainant’s carer to sit next to the Complainant, the Respondent says this direction was given by its driver to enable a passenger with a pram to clear the aisle of the bus (which must be kept clear for safety reasons) an occupy a designated position adjacent to the complainant.

c) In relation to the final allegation, in which it is alleged that KDNB’s driver berated the Complainant and their carer, the Respondent submits that this allegation is unsubstantiated following investigation, subsequent performance management processes (sic).

d) In light of the above, KDNB denies the allegations of discrimination as they are set out in the application.

35. Further, the respondent submitted that:

36. “KDNB maintain that while service was not refused, it was delayed in the incident between the driver and the complainant. This is an example of poor customer service and not one of discrimination.”

37. Whilst denying that there had been discriminatory conduct, the respondent had implemented training “to ensure customer service experience was improved”. It also offered an apology to the applicant (although the driver did not offer his own apology) and offered to have the applicant visit the depot, meet drivers and ride on a bus without passengers to gain confidence in taking the bus.

38. The driver no longer works for the company.

39. The applicant sought compensation of $10,000 for “emotional distress and the cost of further counselling and community access training that has become necessary to restore Matthew’s confidence and resolve his anxiety resulting from this unfortunate situation” (as stated in a letter from Ms Van Hoek to a person who identified himself as ‘Chris, Customer Service Officer’).

40. The respondent sought that the claim be dismissed, noting that no medical evidence had been submitted and no “objective evidence” as to any financial loss or damage.

The hearing

41. On the first day of hearing, it was apparent that both parties needed to file further material that was relevant to the matter and at the heart of it. Without the filing of further documents, the Tribunal would not have been able to determine the real issues in dispute in a manner that was “just, quick and cheap” and proportional to the issues involved. Directions were therefore made for the filing of further material and a further date was set to continue hearing the matter.

The evidence

42. The report of the President, Anti-Discrimination NSW was in evidence.

43. The applicant relied on his own affidavit dated 9 May 2025, the affidavits of Ms Debbie Van Hoek dated 4 March 2025; Ms Allison Matthews, support worker, dated 4 March 2025; Ms Janelle Farrell, support worker, dated 3 March 2025; Mr Samuel Johnson, support worker, dated 16 May 2025, and a letter dated 29 November 2024 from Ms Jessica Sandstrom, MindDog trainer. There were also statements from Ms Chelsea Body dated 15 March 2025 and 5 May 2025 and 26 May 2025 and a response from Ms Van Hoek dated 27 May 2025.

42. The respondent relied on its Reply dated 23 May 2025, Customer Complaint Record, statement of Mr Ivan Abrahams, Depot Manager at Mona Vale, dated 23 May 2025, to which was attached the Equal Opportunity and Anti-Discrimination Policy of the company and a Newsletter entitled “Service Animals are Welcome on KD Buses” dated 5 September 2022.

43. There was no statement in evidence from the bus driver. Among the earliest documents created by the respondent regarding this matter were two letters sent to Ms Debbie Van Hoek. The first stated that that her feedback #1749801 lodged with the Transport Infoline dated 19^th March 2023 would be investigated and offers an apology for any poor service. The second is as follows:

“Dear Debbie

Thank you for your additional inquiry regarding feedback case number 1749801.

At the outset, again please accept my apologies for any distress caused.

An interview was conducted with the driver operating the route B1 service at 10:40 AM on 19 March 2023, the driver advised that the assistance dog was unsecured when boarding the bus and the driver asked for the dog to be secured upon boarding, this was done.

When a passenger with a pram boarded, the driver asked for both the pram in the wheelchair to move into their respective designated areas to ensure that the aisle of the bus was clear and safe for all passengers on board.

Regrettably CCTV was not available on this service, CCTV footage is available for a period of up to seven days before the hard drive starts to write over the current footage.

Please know that this incident was reviewed based on its merits and appropriate action has been taken against the driver involved. Due to privacy reasons and employee confidentiality regulations, Keolis Downer Northern Beaches is unable to disclose the specific actions which were taken regarding the Bus Operators conduct, however please be assured all feedback received is investigated and follow up as required.

Regards

Chris

Customer Service Officer.”

46. The respondent relied on a witness statement from Mr Ivan Abrahams, Depot Manager at Mona Vale, dated 23 May 2025. He was also available and gave oral evidence at the hearing, was cross examined and the Tribunal asked questions of him.

47. The witness statement of Mr Abrahams states in part that between September and December 2022, there was a specific campaign within the company in relation to assistance dogs. The Bus Operator Handbook specifically says:

“Customers travelling Some customers may also travel with an authorised assistance animal. An assistance animal is specially trained to help people with a disability travel more independently. Just as Guide Dogs assist people with vision impairment, assistance dogs help people with disabilities which may not be obvious such as autism, epilepsy, post-traumatic stress disorder or a hearing impairment”.

All assistance dogs are welcome on Keolis Downer buses. Look out for their distinctive jackets or harnesses, be patient and ready to offer help when customers are boarding.

48. Mr Abrahams confirmed in his statement that the driver “understood the expectations of the Bus Operators Handbook and was aware of the obligations they were to adhere to in respect of anti-discrimination, customer service and assistance animals”.

49. Mr Abrahams recorded in his statement that he had spoken to the driver in question after the complaint was received. The driver said words to the effect that:

“My recollection of this incident is as follows”:

“When I stopped at the stop there was a young boy wheelchair and a lady in her 20s accompanying him. He had a dog on his lap”.

“I know that dogs need to be in a carrier, so I said, “you can’t bring the dog on here”.

“The lady showed me paperwork and said that this was an assistance animal, so I said” OK”.

“The lady folded up two of the three disabled seats and the wheelchair was put into two of them and the lady sat in the third seat. This was not enough space for the wheelchair and so the end of the wheelchair was in the aisle. I said “are you alright” but she did not move the wheelchair in all the way”.

“Another couple got on with the stroller, but the stroller could not get past the wheelchair in the aisle. I told the lady she needs to move the third seat up so that the wheelchair could fit in properly. She said “what?” so I told her again. She did not move on, so I told her again that it was not safe and was blocking the walkway. She said, “I don’t understand what you are saying”, so I told her again and then she got up and folded the seat and put the wheelchair all the way in. She stood then”.

50. A newsletter of the company was in evidence and stated that pets, as distinct from service animals, are to be in carriers to be brought onto the bus. Certified assistance animals do not. The statement from the driver, as told to Mr Abrahams and reproduced above, indicates that the driver did not recognise that this dog was an assistance animal and treated it as though it were a pet. Nor did he ask any questions to clarify the matter. In oral evidence Mr Abrahams confirmed that in his view, the driver had failed to appreciate that this was an assistance dog.

51. The account of what occurred once the applicant and the support worker accompanying him boarded the bus, is also contested. The applicant contends that the driver spoke rudely to them and that his request that the wheelchair be moved and that the disability support worker not sit next to the applicant were unreasonable, as the wheelchair was not protruding, but was parallel to the window and that the third seat could reasonably have been used by the disability support worker. The respondent says, based on the account of the driver to Mr Abrahams, that it was protruding.

Consideration of the Evidence

52. At the hearing on 27 June 2025, the applicant was present and the Tribunal questioned him briefly about his affidavit. The disability support worker who was present during the incident was also available. The driver of the bus was not available and had not provided a witness statement. The CCTV footage, which had been requested on the same day or next day after the incident, had been destroyed.

53. The account of the applicant, who had previously travelled on that bus, corroborated by that of Ms Body, who travelled with him, were persuasive. The account was firsthand, whereas the accounts of the driver were not. There were also slight discrepancies between what the driver told Chris, the Customer Services Manager, and what he later told Mr Abrahams: he told Chris that the assistance dog was “unsecured” when boarding the bus and that the driver asked for the dog to be secured upon boarding. The later account given by the driver to Mr Abrahams that entry to the bus was refused because the dog was not in a carrier. These are not necessarily the same thing. Additionally, the applicant’s account is that the dog was not only clearly marked as an assistance dog, but was leashed. That is Ms Body’s evidence. If it is accepted that Molly was leashed, then the dog was not “unsecured” on any view.

54. The applicant states in his affidavit that the driver “made me wait while other people got on the bus”. He and Ms Body were, in effect, forced to go to the back of the queue so as not to hold others up, whereas their place at the beginning of the queue ought to have meant that they boarded early. Later boarding would have meant that they were in the gaze of all other passengers to a much greater extent than if they had been permitted to board first, being first in line.

55. Ms Body corroborates the evidence of the applicant that “the driver made us wait until all other passengers had boarded the bus before allowing us to enter”. Ms VanHoek states in her response filed on 5 June 2025 that the driver “reluctantly put down the ramp on Chelsea’s request after all the passengers were on the bus, even though they were initially first in line.” The fact that the ramp was not put down when the applicant and Ms Chelsea were at the front of the queue and approached the driver seeking to board indicates that there was an actual refusal of service by the driver.

56. The applicant also states that “him was not getting out of his chair to help me on the bus”. The Keolis Downer Handbook for drivers states that for persons with assistance animals, drivers must “be patient and ready to offer help when customers are boarding”. From the account of the applicant and Ms Body, it did not appear that the driver offered much assistance, although eventually, after making them wait, he lowered the ramp for the wheelchair to come on board the bus.

57. Ms Body says that the wheelchair was not protruding into the aisle and was not impeding the pram.

58. The account of the applicant and Ms Body is that the driver was irritated and shouted down the bus for her to move in circumstances where she ought to have been able to travel beside the applicant without difficulty.

59. The position of the respondent, as set out above, is not firsthand from the driver and CCTV footage, which ought to have been retained was not retained.

60. Where there is a difference between the evidence of the bus driver and Mr Abrahams, we prefer the evidence of the applicant’s side of the record. This is because the accounts of the applicant and his witnesses were firsthand, cogent and persuasive, whereas the account of the driver was second hand and differed slightly in each of the two available accounts, as set out above.

Findings as to discrimination

61. The respondent argues that there was no refusal of service, because the applicant, Molly and Ms Body were eventually permitted to board the bus.

62. We find that there was a refusal of service. Initially, the applicant, Molly and Ms Body were refused permission to board the bus. The ramp for the wheelchair was not put out as they approached the bus. They were told that they were not permitted to board the bus with Molly, the assistance dog. Eventually, after waiting until other passengers had boarded, the applicant was permitted to board. Nevertheless, the actions of the driver constituted a refusal of service, as they were made to move from the front of the queue to the back of the queue and were unable to board in their turn.

63. This is not just poor customer service, as the respondent contended. It amounts disability discrimination.

64. Section 49M(1)(a) proscribes refusal of goods and/or services “on the ground of” a disability, which would include having an assistance dog, which, by virtue of S49B(3) is taken to be a characteristic of a person with a disability.

65. We find that the responses of the bus driver, in having the applicant, Molly and Ms Body go to the back of the queue, rather than serving them in their turn, because or the assistance dog, constituted a refusal of service and “less favourable” treatment than would have been accorded to them if not for the assistance dog. There is no need to turn to a hypothetical comparator, because the relevant comparators are others in the queue, who were served ahead of the applicant and Ms Body, out of turn.

66. We find that the applicant was treated less favourably than other passengers, for the purposes of s49B(1)(a) in a number of ways:

67. a) he was not permitted to board at the front of the queue, where he was standing, in his turn, despite his assistance dog being clearly marked as such, but was required to go to the back of the queue so that others boarded ahead of him;

68. b) this was communicated to hm in a demeaning, humiliating way in front of other passengers, with his assistance dog refused permission to board, accompanied by insulting words, “that thing is not getting on the bus” in circumstances where there is no evidence that other passengers were addressed in that way;

69. c) once he was on the bus, the driver again spoke to him and Ms Body in a rude way, refusing permission for her to sit with him and directing her to the back of the bus.

70. The applicant was treated differently and less favourably from other passengers without a disability, in not being permitted to board in accordance with his place in the queue, in his dog being singled out rather than simply permitted to board the bus, in loud and upsetting remarks about the dog being made in front of other passengers and in the arrangements for seating on the bus. These things were done because of, or due to, the passenger having an assistance dog, for the purposes of s49B (2) and (3).

71. If there is a vacant seat, a passenger is generally permitted to sit in it and can choose their own seat. In this case, Ms Body was directed not to sit next to the applicant but to move to the back of the bus. This constitutes part of the less favourable treatment and some of the less favourable terms accorded to the applicant and Ms Body.

72. The respondent argued that as the driver was of non-English speaking background, there had been some misunderstanding. Ms Body stated that at all times she understood what he was saying. People of all backgrounds and ethnicities are required to comply with the Act.

73. There is some obiter discussion in Spence v Roberts (No 2) [2006] NSWADT 361 at [58] – [60] as to the possible distinction between manner and form but there is no binding authority on this issue. Given that s49M is to be read consistently with s49B(1)(a), in principle, the way in which services are delivered comes within the meaning of “treats the person less favourably..” (underlining added). The way in which a person is treated includes manner, thus rudeness to one passenger in circumstances where others do not receive rude treatment, if found to have occurred due to the disability or where at least one of the reasons for the treatment was the disability, could constitute disability discrimination.

74. In the absence of clearer testimony from the driver, we are not satisfied that there were any justifiable safety reasons for his demanding that Ms Body not sit where she wished to sit, given the account of Ms Body, which was that the pram was on the other side of the bus.

75. As to the allegation that the wheelchair was blocking the aisle and impeded the pram, we prefer the version of events of Ms Body to the submissions of the respondent, as she was there during the incident and her evidence is firsthand.

76. We find that the less favourable treatment accorded to the applicant was accorded to him due to his disabilities, because he sought to board the bus in his wheelchair with an assistance animal and had an assistance animal and support worker with him on the bus.

Effects of the incident on the applicant.

77. The evidence of the applicant was that he was significantly affected by the events of 19 March 2023.

78. Although there was no medical report available as to the effects of the events the subject of this application, there were statements from support workers Chelsea Body, Ms Allison Matthews, Ms Janelle Farrell and MindDog trainer Ms Jessica Sandstrom who had worked with the applicant both before and after these events.

79. The statement of Ms Chelsea Body of 15 May 2025 stated that, standing on the bus with the applicant (having been told by the driver that she could not sit down next to him),

“whilst on the bus, Matthew was deeply distressed and was nearly in tears. He kept asking me why we had to wait until last to board the bus and why I wasn’t allowed to sit with him.”

80. She continues, saying that:

“This incident left Matthew feeling deeply uncomfortable, embarrassed and singled out…Verbally attacking his companion animal was unnecessary and distressing for him. Since that day, Matthew has expressed ongoing anxiety about encountering similar treatment form other drivers and has become noticeably more hesitant and stressed when using public transport. A previously outgoing and cheerful individual, Matthew’s confidence has been affected, and he now displays signs of social withdrawal and increased nervousness in public settings. “

81. Ms Janelle Farrell provided a statement dated 3 March 2025. She says that she is a disability support worker who has been working with the applicant for 4 years. She states (in part):

“Matthew is a sensitive young man. He relies on his wheelchair, companion dog, support workers and family for all activities of daily living. His companion dog provides emotional security, regulating anxiety. Matthew cannot advocate for himself. His Speech is impacted by cerebral palsy. He is easily stressed by confrontation. It causes emotional trauma resulting in tear-based decisions, social withdrawal and generalised anxiety. Matthew’s support network works hard to help him overcome setbacks. These setbacks are often long lasting and have a detrimental impact on his health and wellbeing. Being refused access onto a local bus is one of those setbacks”.

82. Ms Allison Matthews says in her affidavit of 4 March 2025:

“I have been a support worker for Matthew Van Hoek for over the last four years. During this time, I have found Matthew to be a friendly, thoughtful young man who is always a pleasure to be with. Despite his complex disabilities Matthew embraces life to the fullest. We have enjoyed regular outings in the community mostly utilising the public transport system especially the buses due to close proximity to his home. As his carer, I have always been aware of Matthew’s sensitivity and willingness to please others. He does not like confrontation of any sort and will become withdrawn an upset if he witnesses any form of conflict especially if it involves him. While I was not with Matthew at the time of the incident on the busk occurred, I have noticed a major difference in Matthew’s willingness an attitude to access the community especially if it involves using a bus. This has certainly impacted Matthew’s desire to participate in the wider community having a negative effect on his social life. Through no fault of his own Matthew has been traumatised, making it difficult to enjoy the full social life that he had previously experienced”.

“I have been an integral part in the training of Molly, (Matthew’s assistance dog) which has involved not only in-home training but the integration of both Matthew and Molly into the wider community. Since the 19th March 2023 incident I have found that Matthew is reluctant to take Molly out. Matthew does not want to upset anyone and he is fearful that there will be a repeat incident where he will be placed in a situation where he feels threatened and scared that a similar situation will arise. It is going to take a lot of retraining for both Matthew and Molly before they will once again be confident enough to access public transport with the assurance that this will not happen again. It is imperative that we find a solution to this issue as Molly’s main purpose is to provide Matthew emotional support for his anxiety. From a carer’s perspective I have found this incident has had a detrimental effect on Matthew and his desire to socialise in the community with his much-loved companion Molly.”

83. Mr Samuel David Johnson says in his affidavit dated 16 May 2025 that he met the applicant on 9 March 2023 and began working with him in May 2023. He says:

“Shortly after beginning work with Matthew, I suggested using the B-line bus service for community access outings. I noticed Matthew would actively avoid this option, always seeking alternatives. I asked his mother Debbie why he was reluctant to use what appeared to be the most convenient and accessible form of transport. She explained the bus incident and how it had impacted him”.

“Since then, I have observed a clear reluctance in Matthew to use public transport especially buses, and particularly the B-line service. He will avoid it wherever possible, even where it is the most suitable option due to proximity and accessibility. This has created practical barriers to his participation in community activities, as accessible parking is often limited, and public transport would typically provide greater independence and flexibility”.

“Matthew also frequently chooses to leave his assistance dog, Molly, at home due to fears of a similar confrontation occurring again. This is not ideal as Molly plays an important role in regulating Matthew’s anxiety and supporting his confidence in public setting”.

“I have observed Molly’s behaviour firsthand. She is extremely well behaved, and I had the opportunity to witness one of her formal assessments, which she passed with excellence. It is clear to me that Molly was professionally and thoroughly trained to be an effective assistance do”.

“The ongoing impact of the bus incident has resulted in both emotional and practical challenges for Matthew. Emotionally, he remains apprehensive about travelling particularly on buses, and this has contributed to a limitation of his independence and community engagement”.

“Practically, the refusal to use buses due to anxiety around the incident has led to increased reliance on alternate transport methods. This places additional financial and logistical pressure on Matthew and his support network. We often face challenges related to accessible parking and incur additional costs such as the cost of petrol when using Matthew’s own vehicle, or the need to reimburse support workers who use their own cars. These added burdens impact the planning and execution of his support plan and daily outings”.

84. Each of Ms Chelsea Body, Mr Samuel Johnson, Ms Allison Matthews, Ms Jessica Sandstrom and Ms Janelle Farrell attested to the significant impacts of this incident upon the applicant, including avoidance of bus travel, even where it was clearly the most direct and convenient, unwillingness to take Molly on public transport, social withdrawal, loss of confidence. Each of them attributed these changes in the applicant’s conduct to the incident on 19 March 2023.

85. Although the respondent submitted that causation had not been established, we are comfortably satisfied that the fact that most of these support workers saw the way that the applicant behaved before and after these events meant that they, trained in support work, were in close proximity over time and able to observe such changes. Ms Body, Ms Matthews and Mr Johnson also noted the applicant’s aversion to bus travel and the anxiety that the idea of bus travel provoked in him after 19 March 2023. Mr Johnson began working with the applicant after the events in question but had previously met the applicant. We are satisfied that the proximate cause of such changes in behaviour was the event the subject of this application.

86. There was also a medical report from Dr Maree Doherty dated 28 November 2024 (after these events) certifying that the applicant “has underlying conditions that require the services of a companion dog when he is travelling”. There is no reason to believe that the underlying conditions that meant that the assistance dog was certified as being required in 2024 were any different in 2023, given the lifelong nature of the applicant’s disabilities and the fact that the assistance dog had been used by him since at least November 2022, when Molly passed her Public Access Test, according to Ms Jessica Sandstrom, MindDog Trainer, in her letter of 29 November 2024.

87. Ms Sandstrom stated that she had been working with the applicant and Molly since January 2022. She says that:

Molly is a certified psychiatric assistant dog who is required to resit her public access test annually to retain her certification. Matt maintains Mollie’s high standard of behaviour and training so that she may continue to accompany him in public spaces. She is a critical key to him confidently accessing the community and living an independent life.

The importance of this cannot be understated and I feel the impact on Matt’s happiness and well-being the incident in March 2023 is very serious. What one callous bus driver did in the span of minutes has caused this lovely young man to feel too traumatised to want to take Molly out or to take the bus. Molly had every right to be there and the bus driver has aggressively discriminated against the disabled man and his accredited, jacketed and carded psychiatric assistance dog.

... This family will now have to further engage my services for remedial training to help this exceptional team recover from this trauma.... I charge a heavily discounted rate to MindDog due to the nature of the work. At $115 per session this would equate to $2990.00 annually at a minimum. Due to the nature of training and behaviour for either animal or human learners, I cannot make an estimate of how many sessions may be required to resolve this issue. There are too many variables that can impact progress for example if Matt and Molly were to encounter a second incident on public transit that would likely remove any progress made in training.

Section 53

88. The respondent argues that:

KDNB has taken and continues to take reasonable actions to ensure compliance of its employees to their obligations in relation to assistance animals, anti-discrimination and KDNB values and expectations including:

Policy and procedure to ensure understanding and compliance to obligations,

Discreet targeted driver checks (Ongoing)

September 2022 Newsletter

September 2022 Service Animal Communications (September to December 2022)

Assistance animals post(s) on Employee App.

89. Mr Abrahams gave evidence that drivers come to him “already trained”. They undergo an induction with specific training about “guide dogs”. The respondent said that this driver had undergone the two years training required of a bus driver before this particular journey occurred.

90. There was no documentary evidence as to whether specific training was given to drivers at the relevant time, prior to 19 March 2023, regarding assistance dogs.

91. Mr Abrahams described his role dealing with any complaints or accidents and providing “coaching to drivers”. He said that the particular driver had more complaints against him than any other driver he has had.

92. In oral evidence Mr Abrahams communicated his understanding that all assistance dogs wore blue vests. The applicant clarified that this is not so. Rather, different organisations have different distinguishing jackets for assistance animals. In this case, Molly had a blue and yellow jacket.

93. Mr Abrahams was asked why he thought that all assistance animals had blue jackets. He replied, “I haven’t driven buses in a while and that’s what I remember”.

94. If Mr Abrahams, a Depot Manager, whose evidence was that he is responsible for providing feedback and ongoing training or feedback to drivers, was not aware of this, he could not have provided correct instruction to the driver on the matter. This is also indicative of a lack of a reasonably detailed, practical understanding of how an assistance animal may present, such as would be necessary to ensure that a driver responds appropriately.

95. It was put to Mr Abrahams that the driver could have asked whether it was an assistance dog or asked to see the credentials of the dog, but did not. The Handbook indicated that he was to be polite but the applicant alleged that he was not.

96. During cross examination and questions from the Tribunal, Mr Abrahams used the term “service dog” and did not appear to be familiar with the term “assistance animal” which is used in the relevant legislation, the Companion Animals Act 1998 (NSW). Given his significant role in on-going education of drivers, this seemed inadequate for the Tribunal to be satisfied that the respondent was proactively ensuring that drivers understood and were equipped and trained to attend to passengers with assistance dogs in a non-discriminatory manner.

97. Although there was an induction for new drivers, a newsletter and posts, there did not appear to be any mechanisms to actively evaluate the understanding of drivers as to their responsibilities. Mr Abrahams’ ‘coaching’ role was responsive to complaints, rather than proactive, on-going training.

98. There was no evidence that this driver had undergone any refresher training. Nor was there proof beyond assertion that his initial training had covered matters of disability discrimination as matters requiring statutory compliance.

99. There was a ‘mystery shopper’ scheme for ‘discreet targeted driver checks’ but no evidence that this driver had been subject to such a check, checked in relation to compliance with the Act in dealing with customers with assistance dogs or that, if there had been such a check, the results of such a check. There was no indication that this driver had previously been sanctioned in relation to disability discrimination in relation to assistance animals.

100. In all those circumstances, we are not satisfied that the respondent “took all reasonable steps to prevent the employee from contravening the Act” for the purposes of s53(3) of the Act. Whilst some steps were taken, these were insufficient and led to the ill-informed and somewhat hostile attitude of the driver towards a young man with an appropriately jacketed, marked, leashed and credentialled assistance dog and his carer.

101. Accordingly, the employer is liable for contravention of the Act pursuant to s53(1).

Remedy

102. The applicant seeks the sum of $10,000 as compensation pursuant to s108 of the Act.

103. This appears to be a “global” amount, taking into account the need for re-training of the applicant and Molly, as indicated by Ms Sandstrom, who outlined the likely range of additional costs that would be incurred due to the applicant being unwilling to use buses due to the incident and the significant impact on the applicant’s willingness to engage and participate in the community generally, including taking Molly along and his anxiety and distress regarding the events the subject of these proceedings.

104. Section 108(2)(a) of the Act provides that where the complaint is found to be substantiated in whole or in part, the Tribunal may order “damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct”.

105. The proper measure of compensation is “sui generis” rather than being a statutory tort measure or a contract measure: Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at 245-246 per Spigelman J; Hall v A & A Shieban Ltd (1989) 20 FCR 217 at 264; Henville v Walker (2001) 2006 CLR 459. Economic loss (such as the cost of re-training of Molly and the applicant) is recoverable, as is non-economic loss (in the form of anxiety, humiliation and/or distress). See generally Australian Anti-Discrimination and Equal Opportunity Law, Rees N, Rice S and Allen D, The Federation Press, 3^rd edition. 2018 at [16.4.1] – [16.6.5].

106. In all the circumstances, we are satisfied that it is appropriate to order compensation in the sum of $10,000, to reflect the economic and non-economic loss components of compensation that is appropriate in this case.

107. In terms of other orders sought, there has been an apology from the respondent to the applicant for distress as a result of the incident.

108. The driver has left the employ of the respondent and was not joined as a party (either by the applicant or the respondent). No order binding him will therefore be made as he has not had an opportunity to participate in these proceedings.

109. We have made findings of disability discrimination. The complaint has been substantiated in whole. The Tribunal does not have statutory power to make declarations, as sought.

110. After this complaint was commenced but before these Reasons for Decision, some measures were being put in place by the company to enhance accountability in relation to anti-discrimination, particularly around acceptance of the role of assistance animals. These Reasons for Decision and the decision itself may prompt further measures to be taken in relation to induction, on-going training and assessment of drivers in relation to anti-discrimination law. We do not therefore see utility in directing the respondent not to repeat or continue unlawful discrimination.

111. The claim is otherwise dismissed.

Orders

1. Claim of discrimination has been substantiated.

2. Pursuant to s108 of the Anti-Discrimination Act, the amount of $10,000 is to be paid to the applicant by 24th October 2025.

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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: 26 September 2025