Jones and Bell
[2009] WASAT 82
•30 APRIL 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION: JONES and BELL [2009] WASAT 82
MEMBER: MS J TOOHEY (SENIOR MEMBER)
HEARD: 22 APRIL 2009
DELIVERED : 30 APRIL 2009
FILE NO/S: EOA 77 of 2008
BETWEEN: DEBORAH JONES
Applicant
AND
JACK BELL
Respondent
Catchwords:
Discrimination - Impairment - Provision of goods, services and facilities - Application by respondent to dismiss application and for applicant to pay costs - Agreement reached between parties - Application dismissed - No order as to costs
Legislation:
Equal Opportunity Act 1984(WA), s 66A(1), s 66K, s 107(3a)
State Administrative Title Act 2004(WA), s 47(2), s 87(2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr Michael Sonter
Solicitors:
Applicant: Self-represented
Respondent: Pynt & Partners
Case(s) referred to in decision(s):
Grover v Commissioner of Police [2005] WASC 263
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
On 8 December 2008, the Commissioner for Equal Opportunity referred to the Tribunal a complaint by Deborah Jones of discrimination on the ground of impairment in the area of the provision of goods, services and facilities.
Ms Jones' complaint concerned the alleged conduct of Jack Bell, the owner of Bell's Pharmacy in suburban Perth, in particular on one evening in 2008.
The Tribunal listed the matter for an initial directions hearing and for subsequent directions hearings and mediation. Ms Jones left messages with the Tribunal on two occasions to say that she could not attend the directions hearing because of ill health. She did not attend the mediation or another directions hearing.
The respondent sought orders under s 47(2) and s 87(2) of the State Administrative Tribunal Act 2004 (WA) dismissing Ms Jones' application and for costs.
On 22 April 2009, the Tribunal convened to hear the respondent's application. After making submissions, the parties agreed to consider overnight whether they wished to maintain their positions. Ms Jones attended by telephone. The following day they agreed that the respondent would not pursue his application for costs and Ms Jones would withdraw her application. The Tribunal therefore ordered that its inquiry would be discontinued and the application dismissed.
These brief written reasons have been prepared at Ms Jones' request.
Complaint to the Commissioner for Equal Opportunity
Ms Jones suffers from a number of seriously debilitating conditions that require various prescription treatments. Although the precise nature of her impairment is not clear, it appears to comprise multiple physical symptoms including type 1 diabetes, chronic fatigue syndrome and cardiac problems. She has 'borderline IQ' and she says the effect on her appearance often makes her the subject of ridicule.
On 28 July 2008, Ms Jones complained to the Commissioner for Equal Opportunity (the Commissioner) that Bell's Pharmacy had discriminated against her on the ground of impairment in the area of the provision of goods, services and facilities.
Ms Jones alleged that Jack Bell, the owner of Bell's Pharmacy where she goes to have her prescriptions filled, had been hostile to her over 'a considerable period'. In particular, on 21 July 2008, they had a disagreement over the price of a particular medication. Ms Jones claimed that Mr Bell's assistant had earlier quoted her a particular price and that Mr Bell later denied this; that he raised his voice towards her, accused her of lying and humiliated her in front of other customers.
Ms Jones said that, as a result of Mr Bell's behaviour, she can no longer go to his pharmacy for her prescriptions and this causes her considerable hardship.
Mr Bell did not deny that he and Ms Jones disagreed about the price of the medication. However, he said, she wanted a larger discount than he was prepared to give and he would have adopted the same approach to anyone else asking for that discount. He did not deny becoming annoyed when Ms Jones refused for the third time to accept the price he quoted but he denied treating her in the manner alleged.
The Commissioner investigated Ms Jones' complaint but, on 5 November 2008, dismissed it as misconceived.
Complaint referred to the Tribunal
On 8 December 2008, the Commissioner referred the complaint to the Tribunal at Ms Jones' request.
The Commissioner's referral included a report of her investigation and various documents including correspondence with Ms Jones and Mr Bell.
On 30 December 2008, the Tribunal wrote to Ms Jones and Mr Bell enclosing a copy of the Commissioner's referral and report and notifying them that the matter was listed for a directions hearing at 10.15 am on 16 January 2009.
On 15 January 2009, Ms Jones telephoned the Tribunal and left a message to say that she was unwell and could not attend the directions hearing the following day. A Tribunal officer telephoned Ms Jones the same day and again the following day and left messages asking her to call, however, Ms Jones did not return the calls.
Arrangements had previously been made for Mr Bell to attend the directions hearing by telephone as he would be away from Perth on 16 January 2009. In the circumstances, the Tribunal decided to adjourn the directions hearing to 6 February 2009 to enable the parties to attend.
On 5 February 2009, Ms Jones left a telephone message with the Tribunal to say that she was unwell and unable to attend the directions hearing the following day. A Tribunal officer telephoned Ms Jones and left a message asking her to contact the Tribunal to arrange for her to attend the directions hearing by telephone or, alternatively, to provide a medical certificate as to why she could not attend.
On the morning of 6 February 2009, a Tribunal officer left a further message for Ms Jones about the directions hearing and asked her to contact the Tribunal as soon as possible.
In the circumstances, the Tribunal decided that the directions hearing should proceed so that it could hear from Mr Bell's solicitor.
At the directions hearing, the Tribunal referred the matter to mediation at 2.15 pm on 27 February 2009.
On 13 February 2009, the Tribunal wrote to Ms Jones advising that the matter had been referred to mediation. The letter explained the purpose of the mediation and that, if the matter could not be resolved at mediation, it would be listed for hearing. It advised Ms Jones that, if she was unable to attend the mediation for medical reasons, she must send the Tribunal a medical certificate explaining why she could not attend and when she would be able to attend.
On 25 February 2009, Ms Jones left a message at the Tribunal to ask if she could attend the mediation by telephone if she was unable to attend in person. A file note made at the time records that, when a Tribunal officer retuned her call, Ms Jones advised that she may have to attend the mediation in person and she would let the Tribunal know about this.
Ms Jones did not attend the mediation on 27 February 2009. A file note records that the mediator telephoned Ms Jones twice, asking her to contact the Tribunal. The mediation was abandoned at 3.30pm and the proceedings adjourned to a further directions hearing on 13 March 2009. A notice of the directions hearing was sent to parties on 5 March 2009.
On 11 March 2009, Ms Jones left a telephone message with the Tribunal asking about the proceedings generally and the Tribunal's powers. A Tribunal officer retuned the call but could not contact Ms Jones.
Ms Jones did not attend the directions hearing on 13 March 2009. Counsel for Mr Bell advised that he would seek orders pursuant to s 47(2) of the StateAdministrative Tribunal Act 2004 (WA) (SAT Act) dismissing Ms Jones' application as frivolous, vexatious, misconceived or lacking in substance; he would also seek an order under s 87(2) of the SAT Act for costs. The Tribunal ordered the respondent to file and serve submissions in support of that application by 27 March 2009. It ordered Ms Jones to file her response by 17 April 2009 and listed the application for hearing on 22 April 2009.
On 23 March 2009, a Tribunal officer spoke with Ms Jones by telephone. It is not clear from the Tribunal's file note who initiated this call but it appears Ms Jones asked various questions, including about the outcome of the mediation, and advised that she had medical certificates explaining why she did not attend. According to the file note, the Tribunal officer advised her she need not send the certificates as "the hearing has been".
On 22 April 2009, the Tribunal heard the respondent's application for orders under s 47(2) and s 87(2) of the SAT Act. The Tribunal agreed that Ms Jones could attend by telephone.
The respondent submits that the central issue in Ms Jones' complaint is a dispute over the price of medication and that her complaint is misconceived. He says there is insufficient evidence to substantiate the complaint that she was (or would have been treated) less favourably than others on the ground of her impairment. In any event, other than agreeing that he became annoyed at Ms Jones' repeated requests for a further discount on the medication, he denies acting in the manner she alleges.
Ms Jones' written submissions in response simply reiterate briefly what she says occurred at Bell's Pharmacy on the evening in question. At the hearing on 22 April 2009 she restated her complaint and her firm belief that Mr Bell would not have treated her as he did if her appearance were not affected by her impairment.
The law
Section 66A(1) of the Equal Opportunity Act 1984 (WA) (EO Act) provides that, for the purposes of the Act, a person discriminates against another person on the ground of impairment if, on the ground of -
(a)the impairment of the aggrieved person;
(b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person; [or]
(c) a characteristic that is generally imputed to persons having the same impairment…
the first person treats the other less favourably than in the same circumstances, or circumstances that are not materially different, they treat, or would treat, a person who does not have such an impairment.
Section 66K of the EO Act makes it unlawful for a person who provides goods, services or facilities to discriminate against another on the ground of their impairment -
(a)by refusing to provide the other person with those goods or services or to make those facilities available to them;
(b)in the terms or conditions on which the first-mentioned other person provides the other person with those goods or services or make those facilities available to the other person; or
(c)in the manner in which the first-mentioned person provides the other person with those goods or services or make those facilities available to the other person.
Consideration
We do not normally speak of a party to proceedings before the Tribunal as bearing the onus of proof. Nevertheless, the Tribunal must base its findings on material which is probative of the matter to be proved: Grover v Commissioner of Police[2005] WASC 263 at [26]. The applicant bears the practical burden of assisting the Tribunal by putting such material before it.
The Tribunal does not doubt that Ms Jones suffers from a serious impairment as she claims. Although she has not actually appeared before the Tribunal, there is no reason to doubt that her impairment has altered her appearance and that people may respond to her and treat her differently because of this.
Parties' claims about what happened on the evening of 21 July 2008 have not been tested and the Tribunal makes no findings about Mr Bell's conduct. However, even if the Tribunal were to accept that Mr Bell acted as Ms Jones claims, nothing in her claims supports a finding that his treatment of her was on the ground of her impairment or that he treated, or would have treated, another person who did not have such an impairment differently in the same or similar circumstances.
Ms Jones has told the Tribunal that closed‑circuit television from the pharmacy on the night in question would support her claims. Mr Bell says that the footage is routinely destroyed some weeks after the event and no longer exists. He denies in any event that it would support Ms Jones' claims.
Ms Jones believes that staff of the pharmacy that were present on the night would support her claims but does not believe they would give evidence against their employer and she has not sought to involve them in her complaint.
After discussing the elements of unlawful discrimination and the matters of which the Tribunal would have to be satisfied in order to find the complaint substantiated, parties agreed to consider their positions overnight. Mr Bell has now advised that he will not pursue his application for costs and Ms Jones has advised that she will not pursue her complaint.
In accordance with s 107(3a) of the EO Act, the Tribunal now discontinues its inquiry into Ms Jones' complaint and makes the usual orders to that effect.
Orders
The Tribunal makes the following orders:
1.Pursuant to s 107(3a) of the Equal Opportunity Act1984 (WA) this matter is discontinued.
2.The application is dismissed.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J TOOHEY, SENIOR MEMBER
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