King v Jetstar Airways Pty Limited

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FEDERAL COURT OF AUSTRALIA

King v Jetstar Airways Pty Limited [2012] FCAFC 115

Citation: King v Jetstar Airways Pty Limited [2012] FCAFC 115
Appeal from: King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8
Parties: SHEILA KING v JETSTAR AIRWAYS PTY LIMITED
File number(s): NSD 165 of 2012
Judges: LANDER, FLICK AND JAGOT JJ
Date of judgment: 23 August 2012
Catchwords:

HUMAN RIGHTS – disability discrimination – whether test for unjustifiable hardship correctly applied – whether findings supported by evidence

PRACTICE AND PROCEDURE – leave to amend notice of appeal – whether proposed grounds of appeal consistent with case put to primary judge – where proposed grounds could have been met by calling evidence below

Legislation: Australian Human Rights Commission Act 1986 (Cth) Disability Discrimination Act 1992 (Cth)
Cases cited:

AB v State of Western Australia (2011) 244 CLR 390; [2011] HCA 42
Carr v Baker (1936) 36 SR (NSW) 301
Coulton v Holcombe (1986) 162 CLR 1
Gama v Qantas Airways Limited (No 2) [2006] FMCA 1767
Hunter v Transport Accident Commission (2005) 43 MVR 130; [2005] VSCA 1
Jones v Dunkel (1959) 101 CLR 298
King v Jetstar Airways Pty Ltd (No 2) (2012) 286 ALR 149; [2012] FCA 8
Police Federation of Australia v Nixon (2011) 198 FCR 267; [2011] FCAFC 161
Sharma v Legal Aid (Qld) 115 IR 91; [2002] FCAFC 196

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

Date of hearing: 2 August 2012
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 60
Counsel for the Appellant: Mr A Moses SC with Mr P Batley and Mr A Ahmad
Solicitor for the Appellant: DLA Piper Australia
Counsel for the Respondent: Ms D S Mortimer SC and Ms K L Eastman
Solicitor for the Respondent: Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 165 of 2012
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN:

SHEILA KING
Appellant
AND:

JETSTAR AIRWAYS PTY LIMITED
Respondent

JUDGES:

LANDER, FLICK AND JAGOT JJ

DATE OF ORDER:

23 AUGUST 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.If either party wishes to be heard on costs the party must notify the other party and the Court within 7 days of the date of these orders.

3.If notice is given in accordance with order 2, the party seeking to be heard is to file and serve written submissions setting out the order sought and reasons in support within a further 14 days and the other party may file and serve written submissions in reply 14 days thereafter.

4.Failing notice being given in accordance with order 2, the appellant pay the respondent’s costs of the appeal as agreed or taxed.

Note:Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 165 of 2012
ON APPEAL FROM THE FEDERAL COURT…
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Details
Case
[2012] FCAFC 115
Decision Date

CaseChat Overview and Summary

In the case of King v Jetstar Airways Pty Limited, the appellant, Mrs King, contested a decision made by the respondent, Jetstar, to deny her booking for a flight due to the airline's policy limiting the number of passengers requiring wheelchair assistance to two per flight. Mrs King argued that Jetstar's refusal to accommodate her despite her booking was discriminatory under the Disability Discrimination Act 1992 (Cth). The primary judge found in favor of Jetstar, concluding that while there was discrimination, Jetstar had successfully established the defence of unjustifiable hardship.

The legal issues before the court revolved around the correct application of the test for unjustifiable hardship and whether the primary judge's findings were adequately supported by evidence. Mrs King contended that the primary judge had misapplied the test for unjustifiable hardship by considering Jetstar's entire operation rather than focusing solely on the specific flight in question. Jetstar, on the other hand, argued that the primary judge's findings were consistent with the case as presented and were supported by the evidence.

The court examined the primary judge's reasoning and found that the judge had correctly applied the relevant statutory provisions and had made findings supported by Jetstar's unchallenged evidence. The court noted that Jetstar's operational framework, including the limited turnaround time for flights and the specific limitations on wheelchair assistance for narrow body aircraft, justified the policy in question. The primary judge had carefully considered these factors and provided detailed reasons for the principal findings necessary to resolve the dispute. Consequently, the court upheld the primary judge's decision, dismissing Mrs King's appeal.

The final orders of the court were as follows: the appeal was dismissed, and if either party wished to be heard on costs, they had to notify the other party and the court within seven days of the date of these orders. If such notice was given, the party seeking to be heard was to file and serve written submissions setting out the order sought and reasons in support within a further 14 days, with the other party having 14 days thereafter to file and serve written submissions in reply. If no such notice was given, the appellant was to pay the respondent’s costs of the appeal as agreed or taxed.

Orders

Orders of the court

1. The appeal be dismissed.

2. If either party wishes to be heard on costs the party must notify the other party and the Court within 7 days of the date of these orders.

3. If notice is given in accordance with order 2, the party seeking to be heard is to file and serve written submissions setting out the order sought and reasons in support within a further 14 days and the other party may file and serve written submissions in reply 14 days thereafter.

4. Failing notice being given in accordance with order 2, the appellant pay the respondent’s costs of the appeal as agreed or taxed.

Note:

Background

Background to the litigation

Jetstar’s position is that it is not open to Mrs King to contend error by the primary judge in determining unjustifiable hardship by reference to Jetstar’s entire operation as this approach was required by the case as put by Mrs King to the primary judge, accurately reflected in the observation at [243] of the primary judge’s reasons. Had Mrs King sought to make her case of discrimination by reference only to the “hypothesis … that there be one extra passenger on flight JQ 769 on 23 September 2008 who required wheelchair assistance” Jetstar’s defence would have been different and called for different evidence. Jetstar otherwise contends that the primary judge made factual findings supported by Jetstar’s unchallenged evidence and gave careful and detailed reasons supporting the principal findings necessary to resolve the dispute between the parties as presented during the hearing. THE BASIC FACTS The basic facts were the subject of limited dispute. As the primary judge found, “[o]n 12 August 2008, Mrs King made her original internet booking for flight JQ 769 from Adelaide to Brisbane on 23 September 2008 at 9.45 am” (at [39]). The primary judge also found that at this time Mrs King did not note on her booking that she required wheelchair assistance (at [39]). Mrs King paid $132 for the flight on the same day (at [40]). Later, on a date the primary judge found to be 16 August 2008, Mrs King contacted Jetstar again about her booking. She was told that “she can not take a Wheel chair with her to the flight booked as the max limit has been reached” (at [44]). Jetstar offered to move Mrs King to another flight for free but she declined (at [48]). Mrs King booked with Virgin instead and took the Virgin flight at a cost of $40 more than the Jetstar flight (at [49]). Jetstar refused Mrs King’s booking because of its “Limited Special Assistance” provisions (set out at [50] of the primary judge’s reasons) which said in part that:Jetstar accepts bookings for up to two customers requiring wheelchair assistance on each flight. Where there are already two bookings made for wheelchair assistance on the flight the customer wishes to book, Jetstar will contact the customer to make alternative arrangements which may include:(a)moving the customer to an earlier or later flight where the limit has not been exceeded;(b) re-routing the customer to their intended destination; or(c) providing a full refund. Mrs King made a complaint to the Australian Human Rights Commission (the AHRC) as provided for in the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) which said, amongst other things, that after she had made her booking Jetstar told her she could not take her wheelchair on the flight as all Jetstar’s wheelchairs had been booked (at [19]). In response to the complaint before the AHRC Jetstar referred to its “Limited Special Assistance” provisions (at [20]). The AHRC terminated the complaint and Mrs King applied to the Court under s 46PO of the AHRC Act. As the primary judge noted, under s 46PO(3) of the AHRC Act the unlawful discrimination alleged in the application to the Court must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint (at [17]). The primary judge rejected Jetstar’s argument to the contrary and found that “the unlawful discrimination alleged in the application to the Court arose out of the same or substantially the same acts, omissions or practices that were the subject of the terminated complaint” (at [26]). In her application to the Court Mrs King sought declarations for contraventions of the Disability Discrimination Act and “an order directing Jetstar to cease enforcing its policy of limiting the number of passengers who require wheelchair assistance to two passengers per flight” (at [21]).THE PRIMARY JUDGE’S REASONSStatutory provisions

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It was submitted for Mrs King that, as the primary judge in fact found discrimination by Jetstar against Mrs King at [186] of the reasons, the primary judge should have made (and this Court should make) a declaration to that effect. The submission is not well-founded. The primary judge found discrimination in accordance with the definition in s 5 and the terms of s 24(1)(a) of the Disability Discrimination Act. Section 24(1)(a), however, proscribed unlawful discrimination only. Section 24(2) provided that it was not unlawful to discriminate if the defence of unjustifiable hardship was established. Jetstar established this defence. Accordingly, there was no unlawful discrimination by Jetstar against Mrs King and no contravention of s 24(1)(a). Nor can there be any breach of s 5, as the declaration sought for Mrs King contemplated. Section 5 provides a definition of discrimination. The structure of the Disability Discrimination Act, which made discrimination in the provision of services unlawful only if the person providing the service did not establish unjustifiable hardship, militates against the making of any declaration as sought by Mrs King. We are not satisfied such a declaration could be made in the circumstances.CONCLUSION For the reasons given above the appeal must be dismissed. Costs would ordinarily follow the event. If either party wishes to be heard on costs they may do so by written submissions and directions will be made accordingly.

Ratio Decidendi

Legal Principle Established

The primary judge dealt with the relevant service for the purpose of s 24 of the Disability Discrimination Act at [99]-[129]. The primary judge characterised the relevant service in these terms:[127] My findings on the question of the identification of the service for the purposes of the Act are that Mrs King wished to be provided with a particular flight at a particular time from Adelaide to Brisbane, JQ 769 on 23 September 2008. In order for her to take that flight she also needed and wished to be provided with assistance to get from check-in to the door of the aircraft and, on arrival, from the door of the aircraft to the time she got her check-in baggage. Thus at one level Mrs King wanted a travel or transport service to take her from Adelaide to Brisbane but in order to access that service she needed substantial assistance. This was because of her disability. Travellers without Mr King's disability did not need the assistance. The assistance that she needed and wished to be provided with was substantial, although Jetstar made no separate charge for it. Mrs King would not have required the assistance if she had not wanted to travel on the flight. Mrs King would not have required the assistance if she did not have a mobility disability.[128] In my view, identification of the service should start from the perspective of a person wanting the putative service. The preferable analysis here is that the service was the major and dominant service Mrs King wanted, being flight JQ 769 from Adelaide to Brisbane on 23 September 2008. For the purposes of the Act, the assistance should be seen as ancillary to the service constituted by the particular flight. It was assistance to board and disembark the flight. Its provision does not negate the identification of the flight as the service.[129] While it is possible to identify two services in my opinion it would be artificial to do so. Although the assistance which Mrs King required in order to board or disembark the flight was substantial it was not sufficiently discrete or separate from the service of travel on the flight in question to constitute a different service for the purposes of the Act. In my view, the provision of substantial assistance to some passengers or indeed to all passengers to board or disembark from the aircraft does not change the identity of the service.Jetstar’s operational framework The primary judge then dealt with Jetstar’s operational framework by reference to evidence from Mr Lobascher, Mr Dal Pra and Mr Moore (at [130]-[177]). Mr Lobascher is Jetstar’s Client Solutions Co-ordinator, Mr Dal Pra is Jetstar’s Chief Operating Officer, and Mr Moore is Jetstar’s Group Chief Financial Officer. The primary judge accepted Mr Lobascher’s evidence including that:(a)Jetstar was a low cost carrier. It did not provide the full range of services offered by a full service airline. Within the constraints of its operating model, Jetstar provided special assistance to passengers with special needs, including special assistance to passengers with limited mobility, including those who required wheelchair assistance (at [131]);(b)these services were performed in the context of Jetstar's operational framework. This included Jetstar's aircraft turnaround time, being the time from the point when the aircraft was on blocks to the point when it departed again. The turnaround time for A320 flights was 30 minutes. This was set out in Jetstar's Precision Timing Schedule (PTS) which was first created for the A320 aircraft in October 2006 (at [132]);(c)the time permitted by the PTS for assisting passengers requiring assistance, within the turnaround time for A320 flights of 30 minutes, was very limited (at [133]);(d)the two wheelchair practice applied only on A320 and A321 narrow body aircraft; it did not apply to flights serviced by Jetstar's A330 wide body aircraft (at [134]);(e)the two wheelchair practice limited the number of passengers; it was not a limit on the number of wheelchairs that could be checked-in to the aircraft hold for any flight (at [135]);(f)the two wheelchair practice meant that within Jetstar's 30 minute turnaround time for A320 flights there were potentially two passengers requiring wheelchair assistance boarding and two passengers requiring wheelchair assistance disembarking on each aircraft (at [136]);(g)per departure there was an average of 0.519 passengers requiring assistance and 0.477 passengers requiring wheelchair assistance and 12,825 of the 25,525 requests for wheelchair assistance were designated WCHS, signifying the passenger was unable to ascend the aircraft stairs and therefore required the use of a passenger lift when boarding where there was no aerobridge (at [137]); and(h)all flight delays, however long or short they might be, were recorded but there were some limitations to the data (at [137]-[144]).