IW v The City of Perth and Ors

[1996] HCATrans 229

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P22 of 1996

B e t w e e n -

I.W.

Applicant

and

THE CITY OF PERTH

First Respondent

DAVID NAIRN

Second Respondent

DONALD NAIRN

Third Respondent

PETER NATTRASS

Fourth Respondent

SALVATORE SALPIETRO

Fifth Respondentf

VINCENZO SCURRIA

Sixth Respondent

VICTOR VLAHOS

Seventh Respondent

Application for special leave to appeal

TOOHEY J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 AUGUST 1996, AT 11.08 AM

Copyright in the High Court of Australia

___________________

MR D.M.J. BENNETT, QC:   May it please the Court, I appear for the applicant.  (instructed by A.J. Hosken & Co)

MR C.L. ZELESTIS, QC:   May it please your Honours, I appear with my learned friend, MR N.F. DOUGLAS, for the respondents.  (instructed by Minter Ellison Northmore Hale)

TOOHEY J:   Yes, Mr Bennett?

MR BENNETT:   Your Honours, there are two issues in this case.  The first is this.  Where one is considering whether a collegiate body has committed an act of discrimination and the act is one which is done by a decision of a board by majority, how does one measure whether or not the people concerned have the relative motive assuming some did and some did not?  What we submit is that it is a simple “but for” test.  If one has, as here, a majority of one ‑ ‑ ‑

GUMMOW J:   Well, you rely on the Carlton Case ‑ ‑ ‑

MR BENNETT:   Yes, your Honour, and we submit that is an important question.  There is no direct authority on it in relation to this sort of legislation, and we would submit as a matter of logic the proposition that it is a “but for” test is inescapable and if one treats it that way, of course, if there is a majority of one, if any of the majority votes can be impeached on the relevant ground, one has the causation and really, that is the beginning and end of the first point.

The court below took a more generalised view and said one had, in a diffused way, to look at the whole of the majority.  There is some suggestion about looking at the majority of the majority but, with respect, those ways simply cannot be correct.  Once one has causation from a single vote, in the case of a majority of one, that, we would submit, is sufficient.  Your Honours, we would submit for the reason I gave, that is an important question and one as to which there is a case for special leave.

The second question is an equally important question, although a rather surprising result below because it really goes to the very basis of what this legislation is about.  May I just explain it in two steps.  The first step was to look at the decision - this is the argument against me - in Boehringer Ingelheim v Reddrop.  That was a case where a company, mindful of employing a person who was manager in charge of trade secrets, rejected the leading contender, who was a woman, on the basis that her husband was the manager in charge of trade secrets of a principal competitor and the question was:  was that discrimination on the ground of marital status?

There were two issues.  Your Honours do not need to go to the case.  The first, which your Honours are not concerned with, was whether discrimination on the ground of who your spouse is is discrimination on the ground of marital status, but the aspect relevant for present purposes is that a reason the court held there should be no discrimination there was that the same discrimination would have applied if, instead of being married to the relevant person, she had been a de facto partner of that person, a sister of that person, a mother, brother, close relative or even a very close friend of the other person.

In other words, it was the relationship with the person who had that position that caused the rejection of employment rather than the fact of marriage.  Now, that argument has been taken totally out of context and applied against us here and the way it is applied against us here appears in the application book at page 158.

TOOHEY J:   You are speaking now of the terms “impairment” and “characteristic”, are you?

MR BENNETT:   It is not so much that, your Honour, as “the same circumstances or in circumstances that are not materially different”.  It is really those words because what the court said was that if you have a person who is HIV positive and you have certain characteristics - I will simplify it to the characteristic of being infectious to take away the others and leave aside the question as to whether it is an imputed characteristic or a real characteristic for present purposes, leave that aside too - treat that as the characteristic for the moment.  What the court said was the hypothetical person you compare it with to see if there has been discrimination is a person who suffers from an infectious condition but not this one, and the problem with that is that suffering from any infectious condition is the very thing you cannot discriminate about.  If your Honours look at the definition of impairment at the bottom of the page 157, it is:

any defect or disturbance in the normal structure or functioning of a person’s body;

So that is the definition of it.

GUMMOW J:   Are there similar definitions in other legislation across the country?

MR BENNETT:   I am sorry?

GUMMOW J:   Are there similar definitions in other statutes of like nature across the country?

MR BENNETT:   Yes, your Honour, in general terms.  The question was posed at page 158 line 10 where:

Senior counsel for the appellants submitted that, under s66A(1), a comparison in treatment had to be made between the treatment of “an aggrieved person” (within the meaning of s66A) and a notional person who did not have an impairment as defined by s4(1).  He submitted, however, that the notional person, the treatment of whom was to be the standard.....should have attributed to him or her the characteristics (referred to in ss66A(1)(b) and (c)) or the requirement (referred to in s66A(1)(d)), of the kind possessed by the aggrieved person.  The only feature (on this argument) not to be attributed to the notional person is “impairment” -

Of course, in this type of case that leaves nothing.  The reasoning against us is at page 161 where an example is given which we would submit is precisely the sort of example where the statute was intended to operate.  The court there says:

On the other hand, to construe s66A(1) on the broad basis that the characteristics set out in ss66A(1)(b) and (c) are to be excluded when making the necessary comparison, even more startling consequences may arise.  Take, for example, a hotelier who receives a request from a group of persons suffering from a disease (which results in the persons concerned being impaired.....Assume that the disease is generally believed to be highly virulent, infectious and potentially fatal, but it is not a disease the subject of a regulation issued under s66U(1) -

that is a regulation under which the executive can declare an infectious disease to be excluded from the anti‑discrimination requirements for limited purposes, and that assumption, we would submit, is in a sense the fallacy because that is what 66U is there for -

The notion that the hotelier would commit an unlawful act of discrimination if he refused the request because of characteristics that were generally imputed to those persons, namely that they were the carriers of a serious infectious disease, would be quite extraordinary.

But, with respect, it is not extraordinary at all.  It may be extraordinary in the result, but the reason for the result is that if the disease has those characteristics and if one is going to catch it through the air, as the hypothetical disease may be able to be caught, then section 66U provides a simple procedure for dealing with it and that is what it is there for.  Section 66U, incidentally, appears at page 210 where there is power to make regulations in effect exempting particular infectious diseases from the Act and from the requirements.  So there is nothing surprising or startling about the example once one realises that section is there.

The effect of what the court has done is to say that, going back to the defect or disturbance, the infectiousness or the consequences of that defect or disturbance are to be ignored.  So if a person suffers from some defect or disturbance which has a necessary result, a medical result, then one can discriminate on the basis of that medical result but not the impairment itself.  That reduces this Act in relation to impairment to something having no effect whatsoever.

If one takes a blind person, is one going to say, “Well, a characteristic attributed to blind people is that they bump into things because they can’t see them”, and then say, “Well, it’s all right to discriminate against people who would bump into things because they can’t see them, as long as you do that even if they weren’t blind”.  It would make the Act into complete nonsense, and we would respectfully submit that that is an important question.  It has been not directly decided, although there is general discussion in a number of cases both in America and here as to the question of the characteristics of the hypothetical person.

This is a convenient vehicle for determining those questions and we would submit that the decision of the Court below is very dubious in the light of that legislation and that that also is, therefore, a special leave point.

McHUGH J:   What about the services point?

MR BENNETT:   Your Honour, that was decided in my favour.

McHUGH J:   I know it was.

MR BENNETT:   Your Honour, if there is an application for leave to cross‑appeal, no doubt that will be considered on its merits and may or may not be granted, but it is not a reason, we would submit, for refusing special leave on important points, except in the most exceptional case, that the respondent might raise by way of leave to cross‑appeal and then cross‑appeal some other issue which might be decisive of the case.  Unless your Honours were totally satisfied that such a cross‑appeal would be instantaneously allowed, that would not be a reason, we would submit, for refusing special leave.  May it please the Court.

TOOHEY J:   Thank you, Mr Bennett.  Mr Zelestis.

MR ZELESTIS:   May it please your Honours.  I will need to point out, to start with, that of course, for this proposed appeal to succeed, the applicant must succeed on both issues.  So no matter what the applicant may say about the fact that on the second issue it was a question of construction on which there were two arguments open, the applicant must succeed on both issues in the appeal in order to have a success.  Our primary submission is that with respect to the first issue, the Full Court was unarguably correct.  The applicant’s application simply confuses two issues.  It is a little bit of sleight of hand, really.

They take the “but for” test, they shift it out of context and use it not for the purpose of determining the validity of action, but they use it for the purpose of determining the attribution of a reason or a purpose, and what their submission comes down to is that if, for example, a board of directors voted 13:12, as this city council voted, to exercise a power and one of the majority of 13 of the board of directors had, as a moving purpose, an impermissible purpose, the whole exercise of power would be vitiated.

Now, that is not at all what the High Court said in Whitehouse v Carlton.  The point that was under decision there was whether, when there were permissible and impermissible purposes present as moving causes, one could use a moving cause test or substantial purpose or dominant purpose test as the criterion of validity or invalidity, but you had as a starting point there a finding or an assumption as to what were the purposes of the directors.

Now, the case is complicated a little by the fact that the relevant decision was made by a sole governing director exercising all powerful powers, but the principle has never been in dispute and one can see it, for example, in the Privy Council case, which is on our list, where the Privy Council expressly approved of Justice Street’s analysis of the position, that is Howard Smith v Ampol, a case where there was a majority decision by directors, and at 831 of that report, the Privy Council approved Chief Justice Street’s approach which was to ask himself the question whether the purpose for which the majority had as a majority acted was a proper or permissible purpose or not.

So, in our submission, there are two distinct issues.  You do not get to the “but for” test until you have ascertained what is the purpose, if one is dealing with purpose, or here, what is the ground upon which action is taken, and you do not determine the ground upon which a body acts by applying a “but for” test.  One has to apply the principles which Justice Ipp, in particular, enunciated which are to identify, firstly, whether the decision has been delegated to some individual such that his purpose would be the relevant purpose, or his reason would be the relevant reason, or if it is a decision by the collegiate body itself, one must, by findings of fact, endeavour to find what were the reasons in the first place, what were all of the reasons of the body and then to determine whether the majority, as a body, acted upon a prohibited ground.

So while it sounds convenient to say - and if you say it quickly enough, it sounds effective - that, but for the decision of one counsellor, the result would not have happened, it does not mean in law that the counsel acted on the ground upon which that one counsellor acted.  In our submission, the first issue does not raise any question warranting special leave.  The Full Court was unarguably right.

TOOHEY J:   Mr Zelestis, are you saying that it is really a head count, is it?

MR ZELESTIS:   No, it is not a head count.  It sounds like a head count, perhaps, because of the numbers - 13:12.  If this was a board of directors voting 3:2 you might see the problem differently.  In substance, it is not different.  All one has to do is determine what was the purpose or what was the moving ground, or moving reason of the persons who represented the directing mind and will of the organisation.  The majority did that here, and one must simply make a finding of fact as to what were their range of grounds, and then a finding as to whether, as a majority, they acted on an impermissible ground.  It is that finding of fact; that exercise of finding of fact, which the Privy Council highlighted and which Justice Dixon, as I think his Honour then was, in Mills v Mills highlighted.  It is a difficult exercise of a finding of fact but it is an inescapable exercise when you have a collegiate body.

It is just preposterous, with respect, to suggest that the decision or the purpose of one member of a 25 member body can determine the legality of the actions of the body.  The other 12 might have acted for the purest of motives in opposing, and 12 will have acted for the purest of motives in supporting, and yet because one has an impure motive, the consequence in this case not criminal illegality but unlawfulness, but the principle that is sought to be put against us would have equal application across the criminal law, and as I say would undo the conduct of directors if there was one of them who was moved by an impermissible purpose.  We simply say that there is a movement of a principle used on one side of the ledger, as it were, across to the other side of the ledger, where it has no role to play at all.

Moving to the second issue, once again it is important not to approach this Act with an assumption about its intended reach.  The fact is that the Act is drawn in terms - if I can take the Court to the relevant provision - it is drawn in terms which inevitably raise a distinction between impairment and characteristics.  I am referring to section 66A.  The structure is in the first opening words of the provision to postulate a person who has been dealt with and who has an impairment.  He might, in addition to having the impairment, have a requirement. 

The Act does not deal with the person actually having a particular characteristic.  Subparagraphs (b) and (c) deal with characteristics which appertain, generally, to persons with the same impairment or which are imputed to such in persons.  There is no prescription here of different treatment on the ground of the particular person concerned having the characteristic.  That is a vital distinction to observe.  So you begin with a person with an impairment, and the question is has he been treated differently, less favourably, on the ground of the impairment or an attributed characteristic or a requirement.

That inevitably involves making a comparison and the nature of the comparison is spelled out in the concluding words of the subsection.  There are two things to note about them.  It is not simply, as my learned friend said, the reference to the same circumstances, or in circumstances that are not materially different, it is the necessary assumption to be made at the conclusion of the subsection that you are dealing with a notional person who does not have such an impairment.  It does not say “who does not have such an impairment, nor an attributed or actual characteristic”.  That is an inescapable part of the subsection.  For my learned friend’s submission to succeed you have to expand the concluding words to read them as if they picked up the attributed characteristic or an actual characteristic.

So our submission draws force not only from the absence of the repetition of “characteristic or requirement” in the concluding words, but from the reference to “the same circumstances or in circumstances that are not materially different”.  Those words are words of breadth rather than limitation.  Those words are words which manifest an intention to precisely repeat all of the circumstances and apply them to the notional person whose treatment is the measure of discrimination.  Now, one can postulate a less controversial example which gives the force to our submission, as we have done in our outline of submissions, and that is a laboratory which has a policy of not admitting persons who have devices which transmit radio waves because of the sensitive equipment in the laboratory.  As long as that laboratory applies that policy uniformly, it will not be guilty of discrimination on the ground of impairment if an impaired person who needs such a device for his health to overcome his impairment knocks on the door of the laboratory seeking permission to enter.

The consequence of my learned friend’s submission is that to keep him out on the ground of his possession of this requirement, this device, would be discriminatory.  In our submission, there is no unfairness in that treatment and, indeed, the point we make is entirely supported, as Justice Scott observed, by subsection (4) which deals with people who have dogs for blindness or hearing.  What subsection (4) provides is that it is discriminatory to treat someone differently on account of them having a sight or hearing dog, even if the person concerned would treat other persons who were accompanied by dogs in a different way.

The whole reason for subsection (4) being required is because of the construction for which we contend and which the Full Court accepted on the first subsection, and that is that but for subsection (4), if somebody turned up at the door of a hotel with a blind dog or a hearing dog and the hotel’s policy was that dogs were not permitted on any account, there would be no discrimination.  So this subsection recognises our submission and operates as a specific exception to it.  Now, one can overstate, with respect, the degree to which this is a national question.  There are other sections in the country in State and Commonwealth legislation which in a very broad way are framed upon this structure, but in the end it is a question of the

construction of this particular piece of legislation and, indeed, this particular section and one cannot escape from its own structure.  Those are our submissions.

TOOHEY J:   Do you say that there is no precise counterpart, Mr Zelestis, of section 66A?

MR ZELESTIS:   My learned friend does not put a precise counterpart.  He puts it very generally.  Really it is for him to put forward any precise counterpart.  There are subtle differences between all of the legislation and subsection (4) stands as a significant difference in our case.  So one can find words that are in 66A elsewhere, but one cannot find them in the context in which they are found in their entirety in this Act.

TOOHEY J:   Yes, thank you.

MR ZELESTIS:   May it please the Court.

TOOHEY J:   Mr Bennett.

MR BENNETT:   Your Honours, on the first issue we would submit that the “but for” test is equally applicable to reasons as for a decision itself because if the particular person, the deciding voter or the two or three deciding voters, have an improper reason, then but for the improper reason the decision would not have been made.  There is no reason for separating, as my learned friend does, causation in relation to decision and the causation in relation to reasons.

McHUGH J:   Except that the decision may be invalid because of an improper purpose on the part of a number of the persons who participated but the body may not have made its decision on the ground of, in this case, impairment.

MR BENNETT:   But in my submission it has if that is a ground but for which the decision would not have been made and if one ‑ ‑ ‑

McHUGH J:   But if you strike out the five or six people, what is left of the majority?  Is there still a majority who would have knocked it out?

MR BENNETT:   No, your Honour, it would have got through because it was one vote in the end.

McHUGH J:   Yes, but the other 13 of course voted against the decision.

MR BENNETT:   Yes.

McHUGH J:   So their state of mind cannot be attributed to the ground of discrimination.

MR BENNETT:   No, your Honour, I could only - if one has 25 people, one has 12 in favour, 13 against, 5 of the 13 against so voted for a ground which is illegal under the Act; one then says it would have been passed by 12 votes to 7.

McHUGH J:   But that is not the question, is it?  The question is:  did the council discriminate on the ground of impairment?  That means that you have got to identify somebody’s state of mind, and you can only identify five states of mind.

MR BENNETT:   But I can show that because of the way the others voted, those five were decisive in producing - - -

McHUGH J:   But that is an irrelevant question.  It has got nothing to do with voting; it is a question of what was the ground of the decision.

MR BENNETT:   Well, there were a number of grounds, your Honour; but I only need to show one of them.

McHUGH J:   I do not know that you can rely on the 13 at all for this purpose.

MR BENNETT:   I only need to show that it was a factor in the decision, and if I have established a “but for” I have done more than that.  Certainly, I have not shown a state of mind of more than five.  But suppose the council said, “We’re 12:12 on this, we will delegate it to X to have a casting vote and just give the decision of the council,” and X then says, “I vote this way,” for an improper reason, then it is much easier to see.  Now, why should it be different where it is done as a matter of voting?

McHUGH J:   Yes, but the decision itself may be invalid.  This decision of the council may well have been invalid, and probably was.  But that does not mean that the council itself as a corporate entity discriminated on the ground of impairment.

MR BENNETT:   Well, your Honour, that is the argument.  Those are the two sides which have to be considered in relation to it.  Your Honour, on the other issue, very briefly, the problem with the way my learned friend puts it is that one has to ask who is the notional person.  Now, in the two examples

he gives, it is easy.  The notional person can be a person who has no impairment whatsoever but has a device which emits radio waves.  Because on can readily hypothesise such a person, there is no discrimination, as in Reddrop. 

Similarly with dogs one can do it; people have dogs who are not blind and, therefore, it is easy to say the notional person when you compare would be excluded, therefore there is no discrimination.  But who is the notional person who is infectious, but not impaired.  If the person is infectious and has the characteristics described, that is an impairment.  It is a defect in the normal structure or functioning of a person’s body.       So, the very content of the matter here is what is said to be excluded.  So, it is quite different from those example, and we would submit that in relation to impairment, bearing in mind this legislation, one just cannot apply that Reddrop distinction to it. 

In relation to other legislation - I have not gone through the Acts in detail to check that - certainly the structure in New South Wales is the same structure.  I have not checked in relation to dogs, whether there is an exclusion referred to there.  But I would submit the issue, being a general issue concerning the standard discrimination provision about circumstances not materially different, makes this a case which raises squarely the issue involved.  May it please the Court.

TOOHEY J:   Thank you, Mr Bennett.

There will be a grant of special leave in this matter.

AT 11.39 AM THE MATTER WAS CONCLUDED