Haraksin v Murrays Australia Limited (No 2)

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FEDERAL COURT OF AUSTRALIA

Haraksin v Murrays Australia Limited (No 2) [2013] FCA 217

Citation: Haraksin v Murrays Australia Limited (No 2) [2013] FCA 217
Parties: JULIA HARAKSIN v MURRAYS AUSTRALIA LTD (ACN 008 468 666)
File number: NSD 907 of 2010
Judge: NICHOLAS J
Date of judgment: 14 March 2013
Catchwords: HUMAN RIGHTS – where applicant suffers from disability and is reliant on wheelchair – where respondent operates fixed route coach service – where applicant sought to arrange coach travel with the respondent – where respondent refused to accept booking from applicant because its coaches were not wheelchair accessible – where applicant alleged both direct discrimination and indirect discrimination – whether respondent breached s 23 or s 24 of Disability Discrimination Act 1992 (Cth) (DD Act) – where finding of direct discrimination made – whether finding of indirect discrimination also open – whether respondent breached Disability Standards for Accessible Public Transport 2002 (Cth) (Standards) – whether respondent breached s 32 of the DD Act – whether Standards apply to respondent’s charter services – meaning of “public transport service” as defined in Standards – availability of relief under s 46PO(4) of Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) – consideration of scope of complaint lodged under s 46PO(1) of AHRC Act – discretionary considerations
Legislation: Disability Discrimination Act 1992 (Cth) s 3, s 4(1), s 5, s 6, s 11, s 23, s 24, s 29A, s 31(1), s 32, s 34, s 125(1)
Australian Human Rights Commission Act 1986 (Cth) s 3(1), s 46P, s 46PA, s 46PD, s 46PF, s 46PI, s46PH, s 46PJ, s 46PH, s 46PO(1)-(4)
Disability Standards for Accessible Public Transport 2002 (Cth)
Cases cited: Australian Medical Council v Wilson (1996) 68 FCR 46
Charles v Fuji Xerox Australia Pty Ltd (2000) 105 FCR 573
Crvenkovic v La TrobeUniversity [2009] FCA 374
Travers v New South Wales [2000] FCA 1565
Grigor-Scott v Jones (2008) 168 FCR 450
Waters v Public Transport Corporation (1991) 173 CLR 349
Date of hearing: 17, 18, and 20 October 2011
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 109
Counsel for the Applicant: Ms C Ronalds SC with Ms A Perigo
Solicitor for the Applicant: Public Interest Advocacy Centre
Counsel for the Respondent: Mr A Moses SC with Ms S Callan
Solicitor for the Respondent: Ashurst
Solicitor for the Disability Discrimination Commissioner: Ms M Lindley

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 907 of 2010
BETWEEN:

JULIA HARAKSIN
Applicant
AND:

MURRAYS AUSTRALIA LTD
(ACN 008 468 666)
Respondent

JUDGE:

NICHOLAS J

DATE OF ORDER:

14 MARCH 2013

WHERE MADE:

SYDNEY

THE COURT DIRECTS THAT:

1.Within 7 days, the parties are to file short minutes setting out the declarations and orders (including in relation to costs) that they submit are appropriate in light of my reasons.

2.The proceeding be listed for further submissions in relation to the parties’ proposed declarations and orders on…

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Details
Case
[2013] FCA 217
Decision Date

CaseChat Overview and Summary

In Haraksin v Murrays Australia Limited (No 2), the applicant, who uses a wheelchair, sought to challenge the respondent's failure to provide wheelchair accessible buses on its services between Sydney and Canberra. The Federal Circuit Court was tasked with determining whether the applicant could proceed with her claims under the Disability Discrimination Act 1992 (Cth). The core legal issues involved the interpretation of the Disability Standards for Accessible Public Transport and the applicability of these standards to the respondent's operations.

The court examined the legislative framework and the specific provisions of the Disability Standards for Accessible Public Transport. It considered whether the respondent's services qualified as "public transport services" and whether their vehicles qualified as "conveyances" within the meaning of the Standards. The court also explored the extent to which the Standards applied to private operators like the respondent. Ultimately, the court found that the respondent's services did not fall within the scope of the Standards as they were not "public transport services" within the definition provided. Consequently, the respondent was not required to comply with the Standards, and the applicant's claims were dismissed.

The court's reasoning was grounded in the statutory definitions and the specific circumstances of the respondent's operations. It held that the Standards applied only to public transport services and conveyances, which did not include the respondent's services. The court further noted that the Guidelines did not alter this interpretation. The outcome was that the applicant's claims against the respondent for failure to provide wheelchair accessible buses were not sustainable under the Disability Discrimination Act.

Orders

Orders of the court

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Background

Background to the litigation

There is an issue between the parties as to whether the applicant may raise these claims at all. Before turning to that issue it is necessary to explain how the Standards operate within the relevant statutory scheme.Background to the Standards The Standards were formulated by the Attorney General pursuant to s 31(1) of the DD Act and came into effect on 23 October 2002. At the time the Standards were formulated s 31(1) of the DD Act was different from s 31(1) in its current form. It relevantly provided:The Minister may formulate standards, to be known as disability standards, in relation to:(a)-(c) …(d) the provision of public transportation services and facilities by:(i) the Commonwealth; and(ii) a State; and(iii) a Territory; and(iv) a public authority of the Commonwealth; and(v) an instrumentality of a State; and(vi) a public authority of a Territory; and(vii) any other personto a person with a disability; … Section 1.5 of the Standards states that the Standards are accompanied by Guidelines, and that passengers, operators and providers need to consult the Guidelines when interpreting the Standards. The parties have placed before me what I was told were the relevant Guidelines which are the Disability Standards for Accessible Public Transport Guidelines 2004 (No 3) (the Guidelines). The purpose of the Standards is “to enable public transport operators and providers to remove discrimination from public transport services” (Standards s 1.2(2)). They apply to “all operators and the conveyances” they use to provide public transport services. They also apply to “providers and supporting premises and infrastructure” (Standards s 1.4(2)). The Standards include a number of relevant definitions. These include:1.12 Conveyance(1)A conveyance includes any of the following, to the extent that they are used to provide a public transport service:(a)aircraft;(b)buses or coaches;(c)ferries;(d)taxis;(e)trains, trams, light rail, monorails, rack railways;(f)any other rolling stock, vehicle or vessel classified as public transport within its jurisdiction by regulation or administrative action of any Government in Australia.(2)A conveyance does not include the following:(a)charter boats (including water taxis);(b)limousines (including chauffeured hire cars);(c)self‑drive rental cars.…1.23Public transport service(1)A public transport service is an enterprise that conveys members of the public by land, water or air.(2)A public transport service includes:(a)community transport conveyances that are funded or subsidised by charity or public money and that offer services to the public; and(b)foreign aircraft and vessels that carry passengers to, from, or in Australia and that offer services to the public.(3)A public transport service does not include a service that provides adventure travel (for example, white water rafting, ballooning or amusement park rides), except to the extent that the service operates to move the public from one location to another distant location.

Evidence

Evidence Before The Court

The applicant gave evidence that she and her husband, who also uses a wheelchair, travel to Canberra approximately once a year. It appears that these trips have been undertaken by them using a private vehicle. However, the applicant stated that she and her husband intend to travel to Canberra more frequently in the future and that they would find travelling by bus more convenient than driving. MR DAMIAN LEE’S EVIDENCE The respondent called evidence from Mr Damian Lee who is a general manager employed by the respondent. Mr Lee’s evidence establishes:·The respondent operates fixed route, charter and tour services using buses and coaches. The respondent’s fixed route services include a range of scheduled services operating between Sydney and Canberra. The respondent operates an average of 15 services a day between Sydney and Canberra. The respondent also operates a fixed route service between Canberra, Wollongong and the South Coast and between Canberra and various destinations in or near the NSW snowfields. All of the respondent’s fixed route services operate out of its Canberra depot. ·Most of the respondent’s revenue is derived from charter operations. Most of these are undertaken using the respondent’s own vehicles but some involve the use of contract vehicles. A much smaller proportion of the respondent’s revenue is derived from its scheduled service operations. ·There is a distinction drawn in the transport industry between buses and coaches. Typically a coach will have high back seats with seatbelts and luggage bins under the floor. They will often include a toilet, and an overall higher level of fit out to provide comfort for a longer trip. A bus will usually have lower seatbacks, no seatbelts and grab handles for use by standing room passengers. ·The vehicles used by the respondent on its fixed route services are coaches that have a capacity of at least 34 seats. It is apparent that the distinction between a bus and a coach will not always be easy to draw especially as it applies to smaller vehicles. However, the factors identified by Mr Lee in his evidence provide a reasonable and practical basis for distinguishing between a bus and a coach.THE APPLICANT’S COMPLAINT The applicant lodged a written complaint of unlawful discrimination with the Commission on 20 August 2009. She did so using a complaint form made available on the Commission’s website. In the written complaint the applicant stated that she had been discriminated against because she has a disability. She nominated 14 August 2009 as the date upon which the event about which she complained took place. She described the event in these terms:I need to go to Canberra at the end of August for work. I rang on 14 August 2009 asking about a wheelchair accessible bus to Canberra, return. I was told they have absolutely no accessible buses in their fleet. She said, well the government has buses attached to Countrylink, but we have none. The applicant also stated that it was necessary for her husband to drive her to Canberra for a work related conference, and that her employer would have to pay much higher travel costs because the applicant could not travel by bus.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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