Elisha v Vision Australia Limited - [2024] HCATrans 71

[2024] HCATrans 071

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M22 of 2024

B e t w e e n -
ADAM ELISHA
Appellant
and
VISION AUSTRALIA LIMITED
Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 OCTOBER 2024, AT 10.02 AM

MR P.D. HERZFELD, SC: Your Honours, I appear with MR E. MAKOWSKI and MR S.D.D. PUTTICK for the appellant. (instructed by Arnold Thomas & Becker Lawyers)

MR P.M. O’GRADY, KC: If the Court pleases, I appear along with MR S.E. GLADMAN, SC and MR L.R. HOWARD for the respondent. (instructed by IDP Lawyers)

GAGELER CJ: Yes, thank you, Mr O’Grady. Mr Herzfeld.

MR HERZFELD: As your Honours will have seen, this matter arises from the termination by the respondent of its employment of the appellant. The primary judge and the Court of Appeal concluded that that termination was in breach of contract. Could your Honours take up the core appeal book please and turn to page 245. Your Honours will see here the “2015 Disciplinary Procedure” and it was in that that the contractual terms found to have been breached are contained. If your Honours turn over to page 246, your Honours will notice, in particular, in point 2:

Where informal counselling is not appropriate or where the concern is of a more serious nature, a formal disciplinary meeting will occur. Prior to the meeting, the employee will be provided with a letter containing a written outline of the allegations. The letter will request that the employee attend a meeting . . . and indicate that the employee may have a support person present.

And your Honours will also notice clause 3, in the last sentence:

At the meeting, a discussion will occur and the employee will be given an opportunity to respond to the allegations.

The respondent contends that those terms were not part of the party’s contract, but assuming they were, the breach of those terms is no longer in controversy before this Court. That is because, in short, while what was put to the appellant concerned his allegedly aggressive behaviour towards a hotel staff member on a specific occasion on 23 March 2015, there was, in fact, taken into account a claimed history of aggression and excuse‑making on the part of the appellant, which was never put to him, and which, in fact, had no substance at all.

Your Honours will see the findings of the primary judge at core appeal book page 70, if your Honours will turn to that, please. Your Honours will see the critical findings on that page at paragraphs 234 and 235. They are the factual findings which give rise to the breach. And your Honours will see the judge’s conclusion of breach on page 120, in paragraphs 429 and 430. Your Honours will see how those findings in paragraph (a) and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] HCATrans 71
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Elisha against a decision of the Federal Court of Australia concerning alleged breaches of the *Disability Discrimination Act 1992* (Cth) by Vision Australia Limited. Elisha, who is blind, alleged that Vision Australia had discriminated against her by failing to provide her with information in an accessible format, thereby contravening the Act.

The central legal issue before the High Court was whether Vision Australia had taken all reasonably practicable steps to ensure that its services were accessible to Elisha, as required by the *Disability Discrimination Act*. This involved determining the scope of Vision Australia's obligations under the Act and assessing whether its actions or omissions constituted unlawful discrimination.

The High Court analysed the concept of "reasonably practicable steps" within the context of the *Disability Discrimination Act*, considering factors such as the nature of the disability, the services provided, and the resources available to the service provider. The Court examined the evidence presented regarding Vision Australia's policies and practices for providing accessible information and determined whether these measures were sufficient to meet the statutory standard. The Court ultimately found that Vision Australia had not breached the Act.

Orders