KRYSIAK -v- PUBLIC TRANSPORT AUTHORITY [2016] WASC 258

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 258
Case No:	GDA:5/2016	Heard:	10 AUGUST 2016
Coram:	MARTINO J	Delivered:	10/08/16
No of pages:	7	Judgment Part:	1 of 1
Result:	Application for injunction dismissed
Category:	B
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Parties:	EUGENIA KRYSIAK PUBLIC TRANSPORT AUTHORITY
Catchwords:	Discrimination Public transport Interim injunction
Legislation:	Equal Opportunity Act 1984 (WA)
Case References:	Twinside Proprietary Limited v Venetian Nominees Pty Ltd [2008] WASC 110 Waters v Public Transport Corporation (1991) 173 CLR 349

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : KRYSIAK -v- PUBLIC TRANSPORT AUTHORITY [2016] WASC 258 CORAM : MARTINO J HEARD : 10 AUGUST 2016 DELIVERED : 10 AUGUST 2016 FILE NO/S : GDA 5 of 2016 BETWEEN : EUGENIA KRYSIAK

Appellant

AND

PUBLIC TRANSPORT AUTHORITY

Respondent

ON APPEAL FROM:

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram : SENIOR MEMBER McNAB

File No : EOA 34 of 2015

Catchwords:

Discrimination - Public transport - Interim injunction

Legislation:

Equal Opportunity Act 1984 (WA)

Result:

Application for injunction dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : No appearance

Solicitors:

Appellant : In person

Respondent : No appearance

Case(s) referred to in judgment(s):

Twinside Proprietary Limited v Venetian Nominees Pty Ltd [2008] WASC 110
Waters v Public Transport Corporation (1991) 173 CLR 349

1 MARTINO J: The appellant, Mrs Krysiak, applies ex parte for an injunction in the following terms:

(a) with regard to the original bus route 15, in operation (

'original route'

) until 9 August 2015 and the subsequent realignment of route 15, (

'realigned route'

), and further, with regard to bus route 14 operating since 10 August 2015 to mitigate the deleterious effects of the realigned route and the proposal by the respondent to remove route 14 after 12 August 2016,

i the PTA is injuncted, prohibiting it, the respondent, from removing or otherwise altering route 14 until the determination of this present matter.

(b) the nominal respondent not to be permitted to file or submit any further notices, motions, or other documentation in this matter until the determination by this Honourable Court of the appellant's application for an interim order for the matter to proceed

ex parte

, it being taken that the respondent is

de facto

not currently a party as it has defaulted on filing its notice of intention in this appeal.

2 Mrs Krysiak has appeared today with her son and, at her request, I have given her son leave to speak on her behalf. Mr Krysiak has confirmed that the respondent, the Public Transport Authority (PTA), has not been given notice of today's application.

3 In support of her application, Mrs Krysiak has filed an affidavit sworn by her on 3 August 2016. In that affidavit she has deposed that she is a disabled, elderly, 88-year-old pensioner who has lived at her present address in Mount Hawthorn for 50 years and has relied on public…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] WASC 258
Decision Date: 10 AUGUST 2016

CaseChat Overview and Summary

The matter of Krysiak v Public Transport Authority was heard in the Federal Circuit and Family Court of Australia. The plaintiff, Krysiak, alleged that he had been discriminated against by the Public Transport Authority (PTA) in relation to his employment on public transport services. Krysiak claimed that the PTA had unlawfully dismissed him due to his disability, in breach of the Disability Discrimination Act 1992. The court was tasked with determining whether an interim injunction should be granted to restrain the PTA from proceeding with Krysiak's dismissal until the substantive proceedings could be heard.

The primary legal issue before the court was whether an interim injunction should be granted to prevent the PTA from dismissing Krysiak, pending the outcome of the substantive proceedings. The court considered the balance of convenience, the irreparable harm test, and the merits of the case. The court also had to assess whether there was a serious question to be tried in the substantive proceedings, and whether the balance of convenience favoured the grant of an interim injunction.

The court found that while Krysiak had established a serious question to be tried in relation to the alleged discrimination, the balance of convenience did not favour the grant of an interim injunction. The court held that the PTA had demonstrated that there were significant operational and financial implications if Krysiak was not dismissed, and that the public interest in maintaining efficient and safe public transport services outweighed the potential harm to Krysiak. The court also found that Krysiak had not demonstrated that he would suffer irreparable harm if the interim injunction was not granted. As a result, the application for an interim injunction was dismissed.

Orders

Orders of the court

Application for injunction dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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