Ellson v PB Taxi Co. Pty Ltd - [2008] SAEOT 6

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
ELLSON v PB TAXI CO. PTY LTD & ANOR
[2008] SAEOT 6
Decision of Her Honour Judge Trenorden
14 April 2008
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - DISABILITY OR IMPAIRMENT
Application to dismiss complaint by first respondent - Relevant test for dismissal/summary judgment - Whether complaint against first respondent is arguable.
HELD: Complainant has arguable case against first respondent - Application dismissed.
Equal Opportunity Act 1984; District Court Civil Rules 2006; Passenger Transport Act 1994, referred to.
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720; Dey v Victorian Railways Commissioners (1949) 78 CLR 62; Egan v The Commonwealth Minister for Transport (1976) 14 SASR 445; Shipard and Another v Motor Accident Commission (1997) 70 SASR 240; Michael Dawson v Michael Aronis [2005] SADC 165, considered.

ELLSON v PB TAXI CO. PTY LTD & ANOR
[2008] SAEOT 6
THE COURT DELIVERED THE FOLLOWING JUDGMENT:

This is a decision upon an interlocutory application by the first respondent (PB Taxi Co.) that the complainant’s claim against it be dismissed “for failing to disclose a curse (sic) of Action against the First Respondent”.
The application was expressed to have been made pursuant to Rule 131 of the District Court Civil Rules 2006. The proceedings are in the Equal Opportunity Tribunal, not the District Court of South Australia. However, under the provisions of the Equal Opportunity Act 1984, the Tribunal may, at any stage of proceedings, make an order dismissing the proceedings: s 96(2)(b). Thus, on a broad interpretation, the Tribunal may entertain an application from a respondent seeking to argue that proceedings against that respondent should be dismissed as failing to disclose a breach of the Equal Opportunity Act as alleged by the complainant. Indeed, there was no challenge to the Tribunal’s jurisdiction to entertain the interlocutory application, by any other party.
The complaint alleges that a particular taxi driver contravened the Equal Opportunity Act in that he refused to provide a taxi service to the complainant and thus discriminated against him on the ground of impairment, while acting as an agent of PB Taxi Co. or in the alternative, as an employee of the latter. Thus, the complainant seeks to argue that PB Taxi Co. is liable for the alleged culpable conduct of the driver, pursuant to either sections 90 or 91 of the Equal Opportunity Act.
The Equal Opportunity Act
It is necessary to understand the context in which the complaint has been brought, sufficient to address the application made by PB Taxi Co.
Part 5 of the Equal Opportunity Act addresses discrimination on the ground of impairment. In s 66 of the Act the criteria for establishing discrimination on the ground of impairment is set down. The complainant asserts that he is sight impaired and is accompanied by a guide dog. Treating a person who is sight impaired because that person possesses or is accompanied by a guide dog constitutes discrimination on the ground of impairment, under s 66.
Division 5 of Part 5 of the Act addresses discrimination on the ground of impairment in relation to land, goods, services and accommodation. Under s 76, it is unlawful for a person who offers or provides services to which the Act applies, to discriminate against another on the ground of impairment by refusing or failing to perform the services, or in the terms of conditions on which, or the manner in which the services are performed.
By s 5(1) of the Act, “services to which this Act applies” includes “services connected with transportation or travel”.
The Test For Summary Judgment or Dismissal
In other jurisdictions, for the success of an application to dismiss a claim against a defendant, the Court has to be satisfied that there is no reasonable basis for the claim: District Court Civil Rules R 232(2). It has been held that “it was not necessary for the Court to undertake a predictive assessment of the prospects of success of the plaintiff’s claim, but to see whether the claim was reasonably arguable”: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 236 ALR 720. That judgment was in relation to the exercise of the Court’s discretion under s 31A of the Federal Court Act 1976 whereby the Court had to be satisfied that the party who was in the situation of the complainant in the subject proceedings, had no reasonable prospect of successfully prosecuting the proceedings against the party who had applied for summary judgment.
The statement in Boston (above) is consistent with the approach of the High Court in Dey v Victorian Railways Commissioners (1949) 78 CLR 62, illustrated in the following excerpts:
If, following argument, the Court reaches a clear decision which could not be altered by any evidence which could be adduced at the trial, then it is proper in the interests of both parties to dismiss the action instead of allowing the parties to incur completely useless expense.
(per Latham CJ at para 26); and
It is of importance to maintain the integrity of the principle that under cover of the inherit jurisdiction to stop abuse of process, litigants are not to be deprived of the right to submit real and genuine controversies to the determination of the Courts by the due procedure appropriate for the purpose.
(per Dixon J at para 16 of his judgment)
It follows that the jurisdiction to dismiss a claim for failing to disclose a cause of action against a defendant or respondent must be exercised with great care and used only where it is clear that the action is devoid of merit or not reasonably arguable. In the words of Bray CJ in Egan v The Commonwealth Minister for Transport (1976) 14 SASR 445 at 448, a reasonable cause of action means: “One with some chance of success, however small.” (cited in Shipard and Another v Motor Accident Commission (1997) 70 SASR 240 at 249 per Bleby J).
In Shipard (above) Bleby J noted that the obligation to be discharged by the defendant in an application for summary judgment is a stringent one, and that the power must be exercised with great care. His Honour emphasised the need for the Court to be satisfied in such an application that the claim or claims against a defendant who has made such an application, are really lacking in merit. The onus is on the applicant for summary judgment to persuade the Court that this is the case.
The test in the Equal Opportunity Tribunal should not be different from that applicable in a Court. A complainant is entitled to submit his or her case against named respondents for the determination of the Tribunal, unless the Tribunal is satisfied on the application and argument of the respondent, that there is no likelihood of success of the complaint against that respondent.
Basis of the Claim Against PB Taxi Co.
In the particulars of claim, it is alleged in respect of PB Taxi Co. that it owns a fleet of taxis, engages individuals to drive those taxis, is an accredited taxi operator pursuant to s 27 of the Passenger Transport Act 1994 and is a member of the second respondent: para 4 of the Particulars of Claim.
Further, it is alleged that PB Taxi Co. provides taxi services to members of the public (para 6), that taxi number 2516 was at the relevant time owned by PB Taxi Co. (para 11), that the driver of taxi 2516 was at the relevant time engaged by PB Taxi Co. to drive that taxi and thereby to provide transport services to the public (para 12), that PB Taxi Co. caused, instructed, induced or aided the driver to act in contravention of the Act (para 16), that the driver was an agent of PB Taxi Co. and was acting in the course of that agency while engaging in the conduct the subject of the proceedings (para 17), and that in the alternative, the driver was an employee of PB Taxi Co. and was acting in the course of that employment while engaging in the conduct (para 18).
In support of its application, PB Taxi Co. filed an affidavit sworn by Mr Vincent Condello, solicitor, which asserted that the applicant has no evidence of the following:
·       That PB Taxi Co. engages individuals to drive taxis;
·       That PB Taxi Co. provides a taxi service to the members of the public, that is alleged;
·       That PB Taxi Co. provides services to which the Act applies, as alleged;
·       That PB Taxi Co. caused, instructed, induced or aided the driver to act in contravention of the Act, as alleged;
·       That the driver was an agent of PB Taxi Co., as alleged;
·       That the driver was acting in the course of an agency relationship between himself and PB Taxi Co., as alleged;
·       That the driver was an employee of PB Taxi Co. in any respect.
As a result, Mr Condello asserted that, the complainant has no possible cause of action against PB Taxi Co. In support of the assertions by Mr Condello, there was annexed to his affidavit a document entitled “Taxi Plate Leasing Agreement”, being an agreement dated 21 March 2006 between the lessor of taxi-cab licence number 2516, and PB Taxi Co. as a lessee; and a second document entitled “Taxi Driving Agreement”, being a memorandum of agreement made between PB Taxi Co. described as “owner” of the taxi-cab and Mr Nariman Fathi, described as “the driver”, dated 7 September 2005.
Filed on behalf of the complainant was an affidavit of the complainant which set out in detail the substance of the complaint. A number of documents were annexed to the affidavit.
The Argument
As part of its argument, PB Taxi Co. says that it does not provide or offer goods or services to which the Equal Opportunity Act applies and thus s 76 of the Equal Opportunity Act is not relevant.
PB Taxi Co. submits that Mr Nariman Fathi who was driving the taxi at the relevant time was neither their employee nor their agent. Thus, PB Taxi Co. submits, on the basis of the evidence of Mr Condello’s affidavit including as it does the two agreements described above, there is no prospect of a case being made out against the company on the basis of sections 90 or 91 of the Equal Opportunity Act.
Consideration of the Submissions
It is not for the Tribunal to canvass whether either the complainant in respect of the first respondent, or the first respondent, ultimately will be successful. The question now before the Tribunal is whether the complainant has no likelihood of success against PB Taxi Co.
On the basis of the evidence put before the Tribunal, the following appears to be arguable:
·       The relevant taxi-cab bears licence number 2516.
·       The driver of taxi-cab number 2516 at the relevant time was Mr Nariman Fathi.
·       Mr Nariman Fathi was driving the said taxi-cab pursuant to an agreement with the owner of the said taxi-cab, PB Taxi Co. (“Taxi Driving Agreement”).
·       Under the “Taxi Driving Agreement” Mr Nariman Fathi was and could be directed with respect to the taxi-cab, would be reimbursed for all fuels used by the taxi-cab during the driver’s shift and was obliged to split the takings with PB Taxi Co.
·       PB Taxi Co. leased taxi-cab licence plate number 2516, issued under the Passenger Transport Act 1994, from Paul Papazollou (“Taxi Plate Leasing Agreement”).
·       Mr Paul Papazollou has an obligation to the second respondent in respect of taxi-cab licence number 2516.
·       The lease agreement between PB Taxi Co. and Mr Paul Papazollou reflected the latter's obligation to the second respondent in that it obliged PB Taxi Co. to keep taxi plate number 2516 in the Adelaide Independent Taxi fleet.
·       PB Taxi Co., being a member of the second respondent, namely Co-operative Taxi Cabs Society Ltd (ABN 17 992 893 409) t/as Adelaide Independent Taxi Service, engaged Mr Nariman Fathi to drive taxi-cab bearing licence number 2516, which taxi-cab PB Taxi Co. was obliged to keep in the Adelaide Independent Taxi fleet.
The Passenger Transport Act 1994 is relevant to the determination of the complaint. It requires inter alia, the licensing of taxi-cabs, the accreditation of operators of a passenger transport service, the accreditation of taxi-cab drivers and the accreditation of operators of a centralised taxi booking service. A “passenger transport service” is defined for the purposes of the Passenger Transport Act to include what is commonly known as a taxi service: see s 4(1). Thus, an accredited driver may drive a public passenger vehicle for the purposes of an accredited passenger transport service, as assigned by an accredited central booking service: see sections 27, 28 and 29 of the Passenger Transport Act.
Having regard to the structure of the Passenger Transport Act and its provisions, the following is arguable:
· that taxi licence plate number 2516 was issued under Part 6 of the Passenger Transport Act;
·       that the second respondent was or provided an accredited central booking service;
·       that taxi-cab bearing licence number 2516 was a public passenger vehicle;
·       that PB Taxi Co. provided an accredited passenger transport service; and
·       that Mr Nariman Fathi was an accredited driver who had an agreement with PB Taxi Co. to drive taxi-cab 2516.
Thus, I have concluded that it is arguable in this matter that the driver Mr Nariman Fathi was driving taxi-cab 2516 at the relevant time for the purposes of a passenger transport service provided by PB Taxi Co. which was part of the Adelaide Independent Taxi fleet to which bookings were assigned by the accredited centralised booking service operated by the second respondent. With respect, I agree with the decision of the learned District Court Judge Muecke in Michael Dawson v Michael Aronis [2005] SADC 165, in which His Honour held that the Passenger Transport Act does not contemplate that an operator of the passenger transport service under that Act would for its purposes, operate such a service by someone other than a person who is the employee or agent of the passenger transport service.
PB Taxi Co. argued that while it provides taxi-cabs to accredited drivers, it is the latter who provides a passenger transport service to the public. However, under the Passenger Transport Act, an accredited driver must also be an accredited passenger transport service operator if the argument of PB Taxi Co. is correct. There is nothing now before the Tribunal to suggest that Mr Nariman Fathi is also an accredited passenger transport service operator. On the contrary, Mr Nariman Fathi has a driving agreement with PB Taxi Co., which in respect of taxi-cab 2516 is required to keep taxi-cab licence 2516 in the Adelaide Independent Taxi fleet, which makes it arguable, as I have already decided, that PB Taxi Co. was providing a passenger transport service in respect of taxi-cab licence number 2516 through its driver Mr Nariman Fathi and the centralised booking service operated by the second respondent.
Conclusion
There is no basis for the order as sought by the first respondent. This is not a case where there is no likelihood or prospect of success by the complainant against the first respondent.
It should be noted that nothing in these reasons constitutes a determination of any issue in the substantive proceedings. In this decision the Tribunal has determined only whether the complaint against the first respondent is arguable.