Krysiak v Public Transport Authority [No 2]
[2017] WASC 103
•13 APRIL 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KRYSIAK -v- PUBLIC TRANSPORT AUTHORITY [No 2] [2017] WASC 103
CORAM: PRITCHARD J
HEARD: 22 MARCH 2017
DELIVERED : 13 APRIL 2017
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:
Leave to appeal - Applicable principles - Turns on own facts
Equal Opportunity Act 1984 (WA) - Indirect discrimination - Meaning of 'requirement or condition' with which a person with an impairment is unable to comply - Provision of a service - Whether change in a bus route constituted indirect discrimination
State Administrative Tribunal - Jurisdiction - Complaint referred under Equal Opportunity Act 1994 (WA) - Whether exercise of original jurisdiction
State Administrative Tribunal - Power - Procedure - Section 47 State Administrative Tribunal Act 2004 (WA) - Whether Tribunal has power to strike out an application following referral of complaint by Equal Opportunity Commissioner
Legislation:
Building Act 2011 (WA), s 119, s 120, s 121, s 122
Dog Act 1976 (WA), s 16A, s 17, s 26, s 27
Equal Opportunity Act 1984 (Vic)
Equal Opportunity Act 1984 (WA), s 3, s 66A, s 66J, s 66K, s 66V, s 66ZE, s 66ZF, s 84, s 89, s 90, s 93, s 107
Mental Health Act 2014 (WA), s 494
Planning and Development Act 2005 (WA), s 236, s 244
State Administrative Tribunal Act 2004 (WA), s 5, s 13, s 15, s 17, s 27, s 29, s 36, s 42, s 47, s 105
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr T E Pontre
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Aigner v State of Queensland [2012] QCAT 397
Armstrong v Commissioner for Consumer Protection [2014] WASCA 71
Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165
Chin v Legal Practice Board Western Australia [2009] WASCA 117
Edney v Public Transport Authority [2006] WASAT 362; (2006) 48 SR (WA) 93
Gough v State of Queensland [2013] QCAT 320
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349
PRITCHARD J: Mrs Krysiak is an elderly lady with limited mobility who lives in Mount Hawthorn. Until 2015, she was a regular user of the number 15 bus route (the number 15 bus), which passed through Glendalough and Mount Hawthorn. In 2015, the Public Transport Authority (PTA) decided to change the route for the number 15 bus,[1] with the result that Mrs Krysiak now has to walk further than she previously did to get to the nearest bus stop for the number 15 bus. Because of her age and mobility issues, the extra distance Mrs Krysiak must now walk to get to the bus stop makes it more difficult for her to use the bus.
[1] An additional bus service (the number 14 bus) was added along the same route as the previous number 15 bus service, but that service was added on a trial basis only, and ran a very limited number of services per day. In any event, it was the change in the route of the number 15 bus which was the focus of Mrs Krysiak's complaint to the EOC.
In 2015, Mrs Krysiak lodged a complaint (the complaint) with the Equal Opportunity Commission (EOC) alleging that the decision by the PTA to change the number 15 bus route constituted unlawful discrimination. The EOC treated the complaint as alleging discrimination, on the grounds of impairment or age, in relation to either access to places and vehicles, or in the provision of a service, contrary to s 66J and s 66K, and s 66ZE and s 66ZF of the Equal Opportunity Act 1984 (WA) (the EO Act). The Acting Commissioner for Equal Opportunity (the A/Commissioner) dismissed the complaint. At Mrs Krysiak's request, the complaint was referred to the State Administrative Tribunal (SAT).
On 4 April 2016, the SAT dismissed Mrs Krysiak's proceeding in the SAT on the basis that it was misconceived or lacking in substance, pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) (the Decision).
Mrs Krysiak now appeals against the Decision. She requires the leave of the Court to do so. She also requires an extension of the time (of one day) in which to bring her application for leave to appeal. For the reasons set out below, the time within which to file the application for leave to appeal will be extended to 3 May 2016 but leave to appeal should be refused and the appeal is therefore dismissed.
These reasons for decision deal with the following matters:
1.Background ‑ the nature of the complaint, the procedural history, and the Decision;
2.Extension of time in which to bring the appeal;
3.Basis for an appeal against a decision of the SAT;
4.The grounds of appeal and the questions of law raised by the appeal;
5.The first question of law and ground 1 of the grounds of appeal: the nature of the jurisdiction exercised by the SAT following the referral of a complaint by the EOC;
6.The second question of law and ground 2 of the grounds of appeal: the 'requirement' said to have been imposed on bus users by the change in the number 15 bus route; and
7.The balance of the grounds of appeal.
Background ‑ the nature of the complaint, the procedural history, and the Decision
The nature of the complaint ‑ the alleged discrimination
As I have observed, the EOC treated the complaint as alleging indirect discrimination on the grounds of age and impairment, in relation to the provision of a service, or access to places or vehicles.
However, it was apparent from the Statement of Facts, Issues and Contentions (SFIC) filed by Mrs Krysiak in the SAT that the complaint was not concerned with access to places or vehicles at all. (It was not alleged, for example, that Mrs Krysiak was refused entry to a bus, or that the terms on which she could obtain access to a bus were altered.) Rather, the complaint was concerned with the change in the route of the number 15 bus, which had the consequence that the nearest bus stop to Mrs Krysiak's home was further away than it had previously been. Consequently, in the SAT proceeding, the complaint was treated as one concerning alleged discrimination in the provision of services. And, in the appeal, the alleged discrimination the subject of the complaint was said to be discrimination in the provision of a service.[2]
[2] ts 54.
The EO Act prohibits a person (the discriminator) who provides services from discriminating against another person on the ground of the other person's impairment, or age, by refusing to provide the other person with those services, in the terms or conditions on which the services are provided, or in the manner in which the services are made available.[3]
[3] See, relevantly to this case, Equal Opportunity Act 1984 (WA) s 66K(1), s 66ZF(1).
The discrimination prohibited under the EO Act encompasses direct and indirect forms. In this case, in so far as the complaint alleged discrimination on the grounds of impairment and of age, the discrimination alleged was of an indirect kind. The EO Act provides that a person (the discriminator) discriminates against another person on the ground of impairment if the discriminator requires that person to comply with a 'requirement or condition' with which a substantially higher proportion of persons who do not have the same impairment comply or are able to comply, and which is not reasonable, and with which the aggrieved person is not able to comply.[4] Similarly, a person (the discriminator) will discriminate against another person on the ground of age if the discriminator requires that person to comply with a 'requirement or condition' with which a substantially higher proportion of persons who are not of the same age comply or are able to comply, and which is not reasonable, and with which the aggrieved person is not able to comply.[5]
Consideration of the complaint by the EOC
[4] Equal Opportunity Act 1984 (WA) s 66A(3).
[5] Equal Opportunity Act 1984 (WA) s 66V(3).
The EOC considered the complaint and dismissed it, pursuant to s 89 of the EO Act, on the basis that the complaint was lacking in substance. That was because the A/Commissioner concluded that Mrs Krysiak had presented 'no evidence that the proportion of persons with [her] impairments and age who were unable to comply with a requirement to walk a distance of about 500 m to the nearest bus stop was higher, compared to when the discontinued portion of route 15 was operating'.[6]
Referral of the complaint to the SAT
[6] Letter dated 6 November 2015 from Acting Equal Opportunity Commissioner to Mrs Krysiak.
When the Equal Opportunity Commissioner gives a complainant a notice dismissing a complaint under s 89 of the EO Act, the complainant may require the Commissioner to refer the complaint to the SAT.[7] As I have noted, Mrs Krysiak requested that the A/Commissioner refer the complaint to the SAT, and the A/Commissioner did so.
[7] Equal Opportunity Act 1984 (WA) s 90(1).
As is the usual course for most matters before the SAT, the SAT made orders that the parties each file a SFIC. After Mrs Krysiak filed a SFIC outlining her application in the SAT (the SAT proceeding), the PTA made an application that the SAT proceeding be struck out pursuant to s 47 of the SAT Act (the s 47 application).
The s 47 application was heard on 4 April 2016 by Senior Member McNab. Both Mrs Krysiak and the PTA filed written submissions in respect of the s 47 application. Mrs Krysiak's son, Mr Krysiak, made submissions on his mother's behalf. Counsel for the PTA also made oral submissions. The learned Senior Member then made the Decision, and dismissed the SAT proceeding.
The Decision was made in the exercise of the SAT's power under s 47 of the SAT Act, which permits the SAT to order that a proceeding be struck out or dismissed[8] if it believes that the proceeding is 'frivolous, vexatious, misconceived or lacking in substance', or 'is being used for an improper purpose', or 'is otherwise an abuse of process'.[9]
The reasons for the Decision
[8] State Administrative Tribunal Act 2004 (WA) s 47(2).
[9] State Administrative Tribunal Act 2004 (WA) s 47(1).
The learned Senior Member delivered extemporaneous reasons for the Decision. He dealt with the s 47 application on the assumption that all of the facts pleaded as the basis for the relief sought in the SAT proceeding would be established, including:
the factual assertions underlying the requirement or the condition that the proportion of persons who are affected by the requirement or condition who cannot comply is made out, and that by implication that unreasonableness as a defence advanced by the respondent could be rebutted.
For the purposes of these proceedings today I have accepted that the allegations such as they are that have been made, and the factual material that has been referred to by the applicant, could be capable of meeting those requirements.[10]
[10] ts 21 - 22 (4 April 2016).
The approach taken by the learned Senior Member to the s 47 application was to consider whether the SAT proceeding was manifestly groundless, or disclosed a case which he was satisfied could not succeed.[11] (The learned Senior Member construed the term 'misconceived' in s 47 as connoting 'a misunderstanding of legal principle' and the term 'lacking in substance' as connoting 'an untenable proposition of law or fact'.)[12] The learned Senior Member understood the main issue in the s 47 application as turning on whether the discriminatory conduct in which the PTA was alleged to have engaged constituted the imposition of a 'requirement or condition' for the purpose of s 66A(3) and s 66V(3) of the EO Act. The learned Member noted that the SAT in Edney[13] and the High Court in Waters[14] had referred to 'the distinction between the "requirement or condition" and something inherent in the nature of the service complained about'.[15]
[11] ts 21 (4 April 2016).
[12] ts 21 (4 April 2016).
[13] Edney v Public Transport Authority [2006] WASAT 362; (2006) 48 SR (WA) 93.
[14] Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349.
[15] ts 22 (4 April 2016).
The learned Member then went on:
[T]hat central proposition was applied in the Edney case in very similar factual circumstances that led to the … dismissal of the Edney claim in a summary way … . I do not see that there is any material difference in the central allegations in this case and the central allegations in the Edney case.
In the Edney case … it was a complaint concerning a decision by the respondent to reroute a specified bus service from near to the complainant's home to further away … . That is essentially the underlying claim in this case. I can see no relevant distinction between the Edney case and this case. The Edney case is based on firm principle.
… I do not see that there is any basis on which Edney ... or Waters for that matter could be distinguished.
Thus, in my view, in the application of the Edney case, and the ... principal case upon which it relies, in the absence of any sustainable argument to show why that is wrong and ought not be followed, or is not sound in principle, I consider we are justified in acceding to the respondent's application … .[16]
[16] ts 22 - 23 (4 April 2016).
Extension of time in which to bring the appeal
An application for leave to appeal has to be made within 28 days of the day on which the SAT's decision is given.[17] In this case, Mrs Krysiak filed her application for leave to appeal on 3 May 2016, which was 29 days after the Decision.
[17] State Administrative Tribunal Act 2004 (WA) s 105(5).
The Court has the power to extend the time within which an application for leave to appeal is filed.[18] The reason the application was not brought within time was explained,[19] and there is no question of any prejudice to the PTA if the extension is granted. The time within which Mrs Krysiak was required to file the appeal will be extended to 3 May 2016.
[18] State Administrative Tribunal Act 2004 (WA) s 105(7).
[19] Affidavit of Tad Krysiak sworn 3 May 2016.
Basis for an appeal against a decision of the SAT
The application for leave to appeal, and the appeal, in this Court
Mrs Krysiak seeks to appeal against the Decision, pursuant to s 105 of the SAT Act. As I have observed, Mrs Krysiak requires leave to appeal. The question of leave to appeal was referred to the hearing of the appeal, pursuant to an order made by Martino J on 19 January 2017.
Mrs Krysiak filed written submissions in relation to the appeal. As Mrs Krysiak is an elderly lady, with mobility issues, for whom English is not her first language, I considered that there were exceptional circumstances[20] which warranted leave being granted to Mrs Krysiak's son to make oral submissions on her behalf at the hearing. Counsel for the PTA filed written submissions, and also attended the hearing and made oral submissions.
[20] Hopes v Australian Securities and Investments Commission [2016] WASC 198 [37] - [38] (Corboy J); Schagen v The Queen (1993) WAR 410, 412 (Malcolm CJ).
An appeal against a decision of the SAT (other than in vocational matters[21]) may only be brought 'on a question of law'.[22] The questions of law raised by the grounds of appeal are discussed below. Counsel for the PTA did not dispute that those questions involved questions of law, and I have proceeded on the basis that the appeal raises two questions of law.
[21] State Administrative Tribunal Act 2004 (WA) s 105(13).
[22] State Administrative Tribunal Act 2004 (WA) s 105(2).
Once it is determined that an appeal raises a question of law, leave to appeal should be granted if, in all of the circumstances, it is in the interests of justice to do so.[23] Whether it is in the interests of justice to grant leave to appeal will be informed by a variety of considerations, and there are no rigid or exhaustive guidelines governing the grant of leave.[24] Considerations which may be relevant to that question include the importance of the question of law, whether there is sufficient doubt about the question of law to justify the grant of leave, and whether substantial injustice would result if the error of law were not corrected.[25]
[23] Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [28] (Murphy JA); Chin v Legal Practice Board Western Australia [2009] WASCA 117 [12] (Pullin & Newnes JJA); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 372 [16] (Buss JA, Wheeler & Pullin JJA agreeing).
[24] See the authorities discussed in Armstrong v Commissioner for Consumer Protection [2014] WASCA 71 [27] (Martin CJ).
[25] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361, 372 ‑ 373 [17] ‑ [18] (Buss JA, Wheeler & Pullin JJA agreeing).
In my view, leave to appeal should be refused. Although there is little authority at the appellate level in this State on the questions of law raised by this appeal, the applicable principles are clear, and the questions of law are not attended by sufficient doubt to warrant the grant of leave. Furthermore, in my view, the decision of the learned Senior Member was clearly correct, with the consequence that no substantial injustice will result from the refusal of leave to appeal.
The grounds of appeal and the questions of law raised by the appeal
In her notice of appeal, Mrs Krysiak advances six grounds of appeal, namely:
1.The learned member erred in law because he operated under the original jurisdiction of the Tribunal, instead of the inquiry / review jurisdiction which is required under s 90, s 93, s 107 of the [EO Act], the enabling Act that gives the Tribunal jurisdiction here, and conducted neither an inquiry, review, or investigation as required by law.
2.The learned member erred in law because he decided that the 'requirement' element of s 66A, s 66J, s 66K, s 66V, s 66ZE and s 66ZF of the [EO Act] was absent, when this element was demonstrably covered and provided by both the applicant and the respondent, as well as the Commissioner.
3.The learned member erred in law because he failed to review the Commissioner's decision, which recognised that the PTA had applied a requirement but used a reasonableness test not required or recognised by the relevant law, ie the [EO Act].
4.The learned member erred in law because he failed to apply s 39, s 47, and s 48 of the [SAT Act] in relation to the [PTA's] failure to comply with that Act in, and in their attempt to strike out, the proceedings before the Tribunal, despite the applicant attempting to invoke those same provisions on two occasions, thereby denying her procedural fairness.
5.The learned member erred in law because he struck out the applicant's complaint summarily, despite the relevant legal authorities to the contrary being invoked and made available, and thereby denied the applicant natural justice.
6.The learned member erred in law because his decision was contrary to s 3 of the [EO Act].
In the course of the hearing, however, Mr Krysiak expressly abandoned ground 3.[26]
[26] ts 78.
The notice of appeal which was filed by Mrs Krysiak did not include any reference to the question of law the subject of the appeal. I raised this issue with Mr Krysiak at the outset of the hearing. Mr Krysiak agreed that the grounds of appeal (particularly grounds 1 and 2) raise two questions of law. The first is the nature of the jurisdiction exercised by the SAT following the referral of the complaint by the EOC and, more specifically, whether the SAT is exercising its review jurisdiction. The second question of law concerns the proper construction of the phrase 'requirement or condition' which appears in s 66A(3) and s 66V(3) of the EO Act, and whether the SAT misconstrued that requirement when it dismissed the complaint under s 47 of the SAT Act.
The first question of law and ground 1 of the grounds of appeal: the nature of the jurisdiction exercised by the SAT following the referral of a complaint by the EOC
In the course of the hearing of the s 47 application, the learned Senior Member observed that the SAT was not reviewing any decision of the A/Commissioner, but rather that the SAT was acting in its original jurisdiction.[27] Mrs Krysiak contends that the SAT erred in approaching the matter that way. That contention appeared to be advanced as a plank of an argument that the SAT should have reviewed the decision of the A/Commissioner, and was thus wrong to have summarily dismissed the SAT proceeding.[28] However, at one point, Mr Krysiak appeared to concede that it was open to the SAT to exercise the power to summarily dismiss, in s 47 of the SAT Act, in relation to a complaint referred to the Tribunal under the EO Act.[29]
[27] ts 4 (4 April 2016).
[28] See, eg, ts 48.
[29] ts 49.
For the sake of completeness, I will deal with both of those issues.
The nature of the jurisdiction exercised by the SAT upon the referral of a complaint under s 90 of the EO Act
I turn, first, to the question of the SAT's jurisdiction when a complaint is referred to it pursuant to s 90 of the EO Act. It is clear that in that case the SAT exercises its original jurisdiction. The reasons for that conclusion are as follows.
If a provision of an Act (the enabling Act) permits an application to be made to the SAT, the SAT will have jurisdiction to deal with the matter concerned.[30] If a matter that an enabling Act gives the SAT the jurisdiction to deal with does not involve a 'review' of a decision, that matter comes within the SAT's original jurisdiction.[31]
[30] State Administrative Tribunal Act 2004 (WA) s 13(1).
[31] State Administrative Tribunal Act 2004 (WA) s 15(1).
A matter in the SAT's review jurisdiction is one where the matter given to the SAT by the enabling Act is one which 'expressly or necessarily involves a review of a decision'.[32] The word 'review' is not defined in the SAT Act. Its ordinary meaning is 'a viewing of the past; contemplation or consideration of past events, circumstances, or facts'[33] and 'to view or inspect a second or further time; to look back upon (a period, event, etc.); to regard or survey in retrospect; and to examine or assess (legislation, a policy, a procedure, etc.) formally or officially with the intention of instituting change if necessary'.[34] When used in a legal context, the ordinary meaning of the word 'review' is 'to subject (a decree, act, judgment, etc.) to examination or revision, esp. by a higher court or authority'.[35] Understood by reference to that ordinary meaning, a 'review' of a decision will involve an examination by the SAT of a decision made by another decision maker, with a view to the SAT determining whether that decision should be changed in some way.
[32] State Administrative Tribunal Act 2004 (WA) s 17(1).
[33] Macquarie Dictionary Online.
[34]Oxford English Dictionary Online.
[35] Oxford English Dictionary Online.
The SAT Act provides that on a review, the SAT is required to stand in the shoes of the original decision maker,[36] but is able to consider material which was not before the original decision maker.[37] Its objective is to produce the correct and preferable decision at the time of the review,[38] and to that end the SAT may either affirm the original decision, vary it, or set it aside and either substitute its own decision or send the matter back to the original decision maker for further consideration.[39]
[36] State Administrative Tribunal Act 2004 (WA) s 29(1).
[37] State Administrative Tribunal Act 2004 (WA) s 27(1).
[38] State Administrative Tribunal Act 2004 (WA) s 27(2).
[39] State Administrative Tribunal Act 2004 (WA) s 29(3).
The SAT's jurisdiction to deal with the complaint of discrimination made by Mrs Krysiak derived from s 90 of the EO Act. That section required the A/Commissioner to refer the complaint (which the A/Commissioner had decided should be dismissed, on the ground that it was lacking in substance) to the SAT at Mrs Krysiak's request. Nothing in s 90, or in any other provision of the EO Act, expressly requires that the SAT conduct a 'review' of the Commissioner's decision when a complaint is referred to the SAT. (That position may be contrasted with other enabling Acts where the SAT is given the jurisdiction to 'review' a decision of a decision maker.)[40]
[40] See, eg, Building Act 2011 (WA) s 119, s 120, s 121, s 122; Planning and Development Act 2005 (WA) s 236, s 244; Mental Health Act 2014 (WA) s 494; Dog Act 1976 (WA) s 16A(3), s 17(1), s 26(5), s 27(7).
In addition, there is no basis for concluding that the referral of a complaint under s 90 of the EO Act necessarily involves the review of a decision made by the Commissioner in respect of that complaint, in the sense of requiring the SAT to consider that decision with a view to determining whether it should be changed in some way. Indeed, it is apparent that that is not what the SAT is required to do. As s 90 of the EO Act makes clear, what is referred to the SAT is the 'complaint' itself, and not the Commissioner's decision with respect to the complaint. (To the extent that a complaint is referred to the SAT following a decision by the Commissioner to dismiss that complaint on the basis that it is without substance, the referral effectively means that the Commissioner's decision is of no practical consequence.)
A similar position arises under s 93(1) of the EO Act, pursuant to which the Commissioner is able to refer, to the SAT, a complaint which has not been, or cannot be, resolved by conciliation (and which, necessarily, the Commissioner has not dismissed). In a case of that kind, the Commissioner does not make any decision in respect of the complaint at all. Instead, the complaint is simply referred to the SAT for its determination.
In either case, the EO Act provides that the SAT 'shall hold an inquiry' into each complaint referred to it.[41] The ordinary meaning of the word 'inquiry' is 'the action of seeking truth, knowledge, or information concerning something; search, research, investigation, examination'[42] and 'an investigation into a matter'.[43] An 'inquiry' in this context thus does not involve a 'review' of any previous decision of a decision maker, but rather an examination of the allegation made in the complaint (namely, an allegation of discrimination contrary to the EO Act).
[41] Equal Opportunity Act 1984 (WA) s 107(3).
[42] Oxford English Dictionary Online.
[43] Macquarie Dictionary Online.
The SAT proceeding in this case was thus within the SAT's original jurisdiction.
I turn next to consider whether the power in s 47 of the SAT Act applies in proceedings in the original jurisdiction of the SAT.
Whether the power in s 47 of the SAT Act applies in the exercise by the SAT of its original jurisdiction
There is no doubt that s 47 of the SAT Act applies to proceedings in both the SAT's original jurisdiction and its review jurisdiction. However, for present purposes, I will focus on the application of s 47 in the SAT's original jurisdiction. (I digress to observe that as s 47 of the SAT Act applies to matters in both the SAT's original and review jurisdiction, the answer to the first question of law raised by the appeal is not determinative of whether the SAT had power under s 47 of the SAT Act to dismiss the SAT application in this case.)
The conclusion that s 47 of the SAT Act applies to proceedings in the original jurisdiction of the SAT follows from the terms of s 47, considered within its legislative context, including the purpose of s 47.
Section 47 of the SAT Act applies in relation to a 'proceeding' before the SAT. The term 'proceeding' appears to be a deliberately neutral term which is capable of encompassing matters in both the SAT's original and review jurisdiction. Furthermore, it is clear from the legislative context that the term 'proceeding' is used to refer to a matter commenced in the SAT's original jurisdiction[44] (as well as a matter within its review jurisdiction). There is nothing in s 47, or in any other provision of the SAT Act, to suggest that s 47 is not intended to apply in the exercise by the SAT of its original jurisdiction. Accordingly, on its face, s 47 of the SAT Act is capable of applying in relation to a proceeding in SAT's original jurisdiction.
[44] See State Administrative Tribunal Act 2004 (WA) s 36(2), s 42(1).
In addition, s 47 of the SAT Act is located within pt 4 of that Act. That Part contains a number of provisions concerning procedures in the SAT. Those procedures apply in all matters in the SAT. Where there is a difference in the application of the procedure applicable in the SAT's original jurisdiction, as compared with its review jurisdiction, the provision in question makes that clear.[45] Section 47 draws no such distinction.
[45] See, eg, State Administrative Tribunal Act 2004 (WA) s 36.
Finally, the purpose of s 47 of the SAT Act is clearly to ensure that the resources of the SAT are not expended on matters which are not properly brought in the SAT at all, or which are clearly destined to fail, for example. Section 47 of the SAT Act gives the SAT the power to dismiss such matters without a hearing on their merits. It would be surprising if the Parliament failed to give the SAT a power to summarily dismiss matters within its original jurisdiction which are misconceived or without any substance. Without such an express power, there would be scope for argument as to whether the SAT had any option but to deal with such matters on their merits.
Accordingly, s 47 of the SAT Act is, on its face, applicable to all proceedings commenced in the SAT’s original jurisdiction (including complaints referred to it pursuant to the EO Act) unless a provision of the relevant enabling Act excludes or modifies the operation of s 47 of the SAT Act. (In that event, the enabling Act would prevail.)[46] I turn, then, to consider whether the EO Act excludes the operation of s 47 of the SAT Act.
Does the EO Act exclude the operation of s 47 of the SAT Act?
[46] State Administrative Tribunal Act 2004 (WA) s 5.
In my view, there is nothing in the EO Act which excludes, or is inconsistent with, the application of s 47 of the SAT Act to complaints referred to the SAT pursuant to the EO Act.
The contention advanced on Mrs Krysiak's behalf appeared to be that the requirement in s 107(3) of the EO Act (for the SAT to conduct an 'inquiry' into a complaint) means that the SAT is required to deal with a complaint on its merits, with the result that the SAT should not, or cannot, dismiss a complaint under s 47 of the SAT Act. I am unable to accept that submission. Subsection 107(3) of the EO Act does not expressly exclude the operation of s 47 of the SAT Act. And in my view, it cannot be said that s 107(3) excludes the operation of s 47 of the SAT Act by implication (that is, it is not inconsistent with s 47)[47], for three reasons.
[47] Cf State Administrative Tribunal Act 2004 (WA) s 5.
First, nothing in the ordinary meaning of the word 'inquiry' ‑ which, as I have observed, contemplates the examination of a complaint ‑ mandates the conclusion that that examination will inevitably consider the merits of the complaint. In my view, the 'examination' of a complaint can be envisaged to encompass two stages. The first will be to ascertain that the complaint is in fact a complaint within the scope of the EO Act, and that it is a complaint which is not misconceived or without substance for some other reason. Assuming that the complaint is a complaint of conduct covered by the EO Act, and which is not misconceived or without substance, then the examination of that complaint will proceed to a second stage, which will involve an examination of the merits of the complaint.
Secondly, the EO Act does not prescribe the procedure to be adopted when a complaint is referred to the SAT for an inquiry. Clearly, it was contemplated that the applicable procedure would be that set out in pt 4 of the SAT Act which applies, generally, to proceedings before it. Section 47 is located within pt 4 of the SAT Act. In my view, there is no basis for differentiating its application from the application of the other provisions in pt 4.
Thirdly, to construe the word 'inquiry' as requiring the SAT to engage in an examination of the merits of every complaint referred to it would result in an absurd outcome. That construction would have the result that if a complaint clearly did not fall within the EO Act ‑ for example if the respondent was not an agency which was subject to the EO Act (such as an agency of the Commonwealth) or if the complaint alleged a breach of another Act entirely ‑ the SAT would nevertheless be obliged to examine the merits of that complaint. That absurdity would be even more pronounced given that the Commissioner ‑ who is required to 'investigate' each complaint made under the EO Act[48] ‑ is permitted 'at any stage of an investigation' to dismiss a complaint if satisfied that the complaint is frivolous, vexatious, misconceived, lacking in substance, or relates to an act that is not rendered unlawful by a provision of the EO Act.[49]
Determination of the first question of law and ground 1 of the grounds of appeal
[48] Equal Opportunity Act 1984 (WA) s 84.
[49] Equal Opportunity Act 1984 (WA) s 89.
The answer to the first question of law raised by the appeal is that in the SAT proceeding, the SAT was exercising its original jurisdiction. There was consequently no error by the learned Senior Member in proceeding on that basis. And nor was there any error by the learned Senior Member in concluding that it was open to the SAT to summarily dismiss the complaint, pursuant to s 47 of the SAT Act, if the SAT was persuaded that the complaint was misconceived or lacking in substance. Ground 1 of the grounds of appeal is without merit.
The second question of law and ground 2 of the grounds of appeal: the 'requirement' said to have been imposed on bus users by the change in the number 15 bus route
As is apparent from the summary of the Decision set out above, the learned Senior Member concluded that the complaint was misconceived and without substance because the 'requirement or condition' which Mrs Krysiak alleged constituted discrimination on the grounds of impairment or age in the provision of a service was not a 'requirement or condition' within the meaning of that term in s 66A(3) and s 66V(3).
In reaching the Decision, the learned Member relied upon the decision of the High Court in Waters v Public Transport Corporation[50] and of the SAT in Edney v Public Transport Authority.[51]As much of the argument on the appeal focused on the application of those decisions, and particularly the decision in Edney, it is appropriate to briefly recall what was decided in each of those cases.
The decision of the High Court in Waters v Public Transport Corporation
[50] Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349.
[51] Edney v Public Transport Authority [2006] WASAT 362; (2006) 48 SR (WA) 93.
In Waters v Public Transport Corporation[52] the High Court examined the construction and operation of provisions in the Equal Opportunity Act 1984 (Vic) (the Vic EO Act) which were in similar terms to s 66A and s 66V of the EO Act. That case concerned a decision by the Public Transport Corporation of Victoria to introduce a number of changes to the public transport system. The first involved a new ticketing system, which required that passengers purchase tickets from retail shops, and validate those tickets by making a scratch mark in designated places to indicate the journey being undertaken. The second change was that conductors were removed from some trams.
[52] Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349.
Nine disabled complainants lodged complaints which alleged that the introduction of these changes constituted indirect discrimination on the grounds of impairment, contrary to the Vic EO Act. The complaints were referred to the Equal Opportunity Board of Victoria (which appears to have stood in a similar position to the SAT), which upheld the complaints in relation to the use of the scratch tickets and the removal of conductors. The Corporation appealed to the Supreme Court, where the appeal was allowed and the complaints were dismissed. The complainants then appealed to the High Court. The appeal was allowed by a majority of the members of the Court. The decision of the Supreme Court was set aside, and the complaints were remitted back to the Board for further determination.
The Vic EO Act prohibited discrimination on the grounds of the status of a person (which included the impairment of the person) in the provision of a service. The definition of indirect discrimination on the ground of impairment was in similar terms to s 66A(3) of the EO Act. In particular, the relevant definition included the imposition, by a discriminator, of a 'requirement or condition' with which the aggrieved person could not comply but with which a substantially higher proportion of persons without an impairment could comply.
One key aspect of the case concerned the question whether the use of scratch tickets, and the removal of conductors, constituted 'requirements or conditions' imposed by the Corporation in connection with the provision of a service. There was no dispute that the requirement to purchase a scratch ticket involved the imposition of a requirement or condition.[53] As for the removal of conductors, the Board had found that that change involved the imposition of a requirement or condition that passengers (including the complainants) use trams without the assistance of conductors. The Supreme Court held that the removal of a conductor from some trams did not constitute the imposition of a requirement or condition on either the travelling public or on the complainants in particular. A majority of the High Court disagreed with that view, and held that there had been no error in the Board's identification of the 'requirement or condition' as a condition that passengers travel on trams without the assistance of a conductor.[54]
[53] Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349, 356.
[54] See Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349, 361 ‑ 362 (Mason & Gaudron, Deane J agreeing at 382), 393 (Dawson & Toohey JJ).
The decision in Waters established (or confirmed) some important principles which are of direct relevance to this case.
First, the words 'requirement or condition' are to be construed broadly so as to cover any form of qualification or prerequisite.[55]
[55] Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, 185 (Dawson J); Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349 [393] (Dawson & Toohey JJ).
Secondly, the 'requirement or condition' need not be expressly or explicitly imposed. It is sufficient if the 'requirement or condition' is implicit in the conduct which is said to constitute the discrimination.[56]
[56] Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, 177 (Deane & Gaudron JJ); 185 (Dawson J); Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349, 360 (Mason & Gaudron JJ), 407 (McHugh J).
Thirdly, the 'requirement or condition' which is imposed in relation to the provision of a service must be something which is separate from the provision of the service itself. Mason CJ and Gaudron J observed:[57]
the notion of 'requirement or condition' would seem to involve something over and above that which is necessarily inherent in the goods or services provided. Thus, for example, it would not make sense to say that a manicure involves a requirement or condition that those availing themselves of that service have one or both of their hands.
[57] Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349, 361 (Mason CJ & Gaudron J), 394 (Dawson & Toohey JJ).
Whether a requirement or condition is in fact separate from the matter to which it relates will clearly depend upon how the service is described and how the requirement or condition is characterised.[58]
[58] Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349, 394 (Dawson & Toohey JJ).
Fourthly, the description of the service provided and the characterization of the requirements or conditions on which the service is provided are questions of fact.[59] Those factual findings must be made before it is possible to consider whether the discrimination prohibited by the legislation has in fact occurred.
[59] Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349, 394.
Fifthly, there is no particular formula or approach which should be used to identify either the service in question, or the requirement or condition. For that reason, it is possible to identify a service with varying degrees of particularity.[60] However, that means that care is needed to ensure that the service is not defined at too high a level of generality that a determination cannot be made of whether an identified criterion is a 'requirement or condition' which is separate from the service itself.[61] Furthermore, the actual requirement or condition in any particular case should be formulated with some precision.[62]
The answer to the second question of law raised by the appeal
[60] Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349, 361 (Mason & Gaudron J), 407 (McHugh J).
[61] Cf Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349, 407 ‑ 408 (McHugh J).
[62] Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165, 185 (Dawson J); Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349 [393] (Dawson & Toohey JJ), 406 (McHugh J).
Given the similarities in the legislative provisions, the phrase 'requirement or condition' in s 66A(3) and in s 66V(3) of the EO Act should be construed as having the same meaning as was attributed to that phrase in the context of the Vic EO Act in Waters. The learned Senior Member did not err in approaching the SAT proceeding on that basis.
I turn, next, to consider whether the learned Senior Member erred in his application of the phrase 'requirement or condition' in this case. As the learned Senior Member's decision relied heavily on the decision of the SAT in Edney it is appropriate to bear in mind what was decided in that case.
The decision of the SAT in Edney v Public Transport Authority
In Edney[63] Mr Edney had an impairment which made it difficult for him to walk any distance. He complained to the EOC about a decision by the PTA to change the route of a bus which travelled from the south eastern suburbs of Perth into the city centre. Initially, the service was replaced with a service that involved catching a bus to the train station in Cannington and from there, a train into the city. Eventually the PTA amended the service so that the original bus service into the city was maintained during weekday business hours, but outside those hours, the feeder service to the train station operated. Passengers wanting to get to points between the Cannington train station and the city centre would then need to change buses.[64] Mr Edney claimed that passengers with an impairment would have to walk up steep ramps at the Cannington train station, which made use of the service more difficult.
[63]Edney v Public Transport Authority [2006] WASAT 362; (2006) 48 SR (WA) 93.
[64] Edney v Public Transport Authority [2006] WASAT 362; (2006) 48 SR (WA) 93 [15] ‑ [16].
The complaint was referred to the SAT. The key issue in dispute was whether the re-routing of the bus service in the way described constituted indirect discrimination within the meaning of the EO Act.[65] It was not in dispute that providing public transport by means of bus and train services constituted the provision of a service within the EO Act.[66] And it was assumed by the SAT that the changes to the bus service, and the implications of those changes, constituted terms and conditions on which, or the manner in which, the bus service was provided, so as to engage the prohibition on discrimination in the provision of a service.[67]
[65] Edney v Public Transport Authority [2006] WASAT 362; (2006) 48 SR (WA) 93 [12].
[66] Edney v Public Transport Authority [2006] WASAT 362; (2006) 48 SR (WA) 93 [32].
[67] Edney v Public Transport Authority [2006] WASAT 362; (2006) 48 SR (WA) 93 [34].
The SAT then turned to consider the 'requirement or condition' said to give rise to the indirect discrimination and held that:
we do not think that the very route along which a means of public transport travels can sensibly be understood as imposing a requirement or condition within the meaning of the Act. The route is necessarily inherent in the service itself rather than anything separate from it. There is no stipulation, policy or practice that can meaningfully be formulated in order to describe a relevant requirement or condition. It is not a case, such as in Waters, where features of the tram service, namely the use of a scratch ticketing system and the removal of conductors from the trams, could sensibly be understood to be requirements or conditions imposed on users, separate from the service itself.
It is an inevitable feature of any public transport system that it does not service every avenue, street and lane in the metropolitan and country area. That people have to make their way, even a considerable distance, to the nearest bus or train station cannot meaningfully be understood as a requirement or condition of the service. One person's inconvenience or loss might just as well be another's gain. That is not to say there might not be circumstances in which a particular service could be routed in such a way as to discriminate unlawfully.[68]
The identification of the 'service' and of the 'requirement or condition'
[68] Edney v Public Transport Authority [2006] WASAT 362; (2006) 48 SR (WA) 93 [41] ‑ [42].
As is apparent from the discussion of the Decision above, the learned Senior Member saw the decision of the SAT in Edney as being on all fours with the complaint the subject of the SAT proceeding, and that the application of the principles established in Waters and applied in Edney meant that the SAT proceeding was misconceived and without substance. It was for that reason that during the hearing of the s 47 application, the learned Senior Member sought submissions on whether the issues raised by the complaint were distinguishable from those raised in Edney.
I digress to observe that as the decision in Waters makes clear, when either the EOC or the SAT is dealing with a complaint, it is essential that the 'service' provided is clearly identified, and at not too high a degree of generality as to be meaningless. Next, it is essential that the 'requirement or condition' also be clearly identified. The clear identification of those elements of the complaint is necessary so that there is no confusion as to whether those requirements are established by the facts.
In dealing with a s 47 application, which will typically be made at an early stage of a SAT proceeding, the SAT will not ordinarily have made any factual findings as to the 'service' or as to whether a 'requirement or condition' was imposed in relation to the service. For that reason, the SAT will proceed (as the learned Senior Member did in this case) by dealing with the s 47 application on the assumption that the facts on which the complainant relies will be proved. If the basis for the s 47 application is that the 'requirement or condition' which the complainant contends gave rise to indirect discrimination was not a requirement which was separate and distinct from the provision of the service itself, it will be essential that the SAT identify with precision what the complainant alleges was the 'service' and the 'requirement and condition' imposed. Where the complainant is a litigant in person, it will be particularly important to ensure that the complainant has identified those elements of the complaint in either the complaint itself, or in any statement of facts, issues and contentions which is filed by the complainant, or in the complainant's submissions to the SAT.
The power in s 47 of the SAT Act is one which should be exercised with great care, and should not be exercised unless it is clear that there is no real question to be tried.[69] The difficulties which a litigant in person may face in formulating a complaint under the EO Act provide another example of why the power in s 47 should be exercised with caution. Having said that, both the EOC and the SAT have important roles in assisting a complainant to clearly identify in the complaint, or in their case in the SAT, what is the 'requirement or condition' said to have constituted indirect discrimination in the particular context (provision of a service etc).
[69] See Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [65] ‑ [68] (Murphy JA, Pullin & Buss JJA agreeing).
In the present case, the complaint which Mrs Krysiak lodged did not identify the service, or the requirement or condition imposed on the use of that service. However, it was apparent from the SFIC filed by Mrs Krysiak, and confirmed by Mr Krysiak in his oral submissions, that Mrs Krysiak's case was that the 'service' provided by the PTA was the provision of the number 15 bus service. That was how the learned Senior Member understood the complaint.
Mr Krysiak agreed that that was an appropriate characterisation of the 'service' the subject of the complaint.[70] He also accepted that the finding of the SAT ‑ that the service in this case was the provision of a bus service along a particular route[71] - was essentially correct, although Mr Krysiak submitted that the service was a service in a particular area, namely that covered by the number 15 bus.[72]
[70] ts 55.
[71] ts 4 (4 April 2016).
[72] ts 56.
As for the 'requirement or condition' to which the use of the bus service was said to have been made subject, Mr Krysiak submitted that that was that the distance that users of the number 15 bus would have to travel to get to a bus stop from their homes, in order to access the bus service, would exceed 400 m.[73] (Mr Krysiak submitted that that was an internationally recognised standard for the maximum distance from a user's home to a bus stop.)[74] For ease of reference I will refer to this as the Travel Requirement.
[73] ts 60; Appellant's Outline of Submissions [58].
[74] ts 57.
It is clear that the learned Senior Member understood that this was what Mrs Krysiak alleged was the 'requirement or condition' which constituted indirect discrimination. The learned Senior Member noted that in Edney the complaint concerned the decision by the PTA to 're‑route a specified bus service from near to the complainant's home to further away' and that 'that is essentially the underlying claim in this case'.[75]
[75] ts 22 (4 April 2016).
Mr Krysiak submitted that the learned Senior Member erred because he had ignored the fact that in this case, unlike the Edney case, Mrs Krysiak had to walk more than 400 m to get to the bus stop as a result of the change in the bus route. The precise distance Mrs Krysiak now has to walk to get to the bus stop is not material to the question whether the change in the bus route itself (which results in a change in the distance a passenger may have to travel to get to a bus stop) constitutes a requirement or condition of using the bus service which is separate from the service itself. There was no error by the learned Senior Member in that respect.
In my view, the learned Senior Member did not err in his conclusion (which followed from the application of the principles decided in Waters and applied in Edney) that the Travel Requirement was not a 'requirement or condition' which was separate from the service itself. It is an inherent part of a bus service, and in a passenger's use of a bus service, that the bus will stop to collect passengers at bus stops along a particular route. In other words, passengers must arrange to be at a bus stop along that route in order to use the bus service. They may need to travel to get to that bus stop (whether by walking, cycling, or use of a vehicle, such as by taking another bus) but being at the bus stop is an inherent part of using the bus service itself. Bus stops will necessarily be located at various points along the bus route. A change in the route for the service may therefore necessitate a change in the location of the bus stops along that route. However, changing the location of the bus stops, and thus potentially changing the distance which passengers may have to travel to get to a bus stop, does not constitute the imposition of a requirement or condition on passengers over and above that which is necessarily inherent in the provision of the bus service itself. That is what the SAT decided in Edney and, in my view, that was a correct application of the principle in Waters. The learned Senior Member did not err in deciding that the same conclusion was warranted in this case.
Mr Krysiak appeared to acknowledge that the route of the bus service was part of the service itself.[76] He submitted that the route itself was 'part of the system' but that the result of changing the route was that a requirement to walk more than 400 m was imposed on some users of the bus service. He submitted that the change in the distance a person had to travel (to more than 400 m) in order to get to a bus stop was a requirement quite separate from the provision of the bus service itself.[77] In my view, no such distinction can be made.
[76] ts 64.
[77] ts 64.
Mr Krysiak sought to draw an analogy between the Travel Requirement and a requirement for customers of a business to use a flight of stairs to get to a business located above the ground floor of a building. The analogy is not apposite. It concerns access to premises rather than the use of services, and the fact that premises, or parts thereof, are constructed so as to be inaccessible to persons with an impairment is excluded as a basis for discrimination in access to premises.[78]
[78] Equal Opportunity Act 1984 (WA) s 66J(2).
There appears to be a further difficulty with the argument advanced by Mrs Krysiak. As I have already observed, although passengers are required to get to a bus stop in order to catch a bus, they are entitled to get to a bus stop by any means at their disposal. While many will walk to the bus stop, others may get there by other means, including, for example, by catching another bus from a different location. A change in a bus route does not, therefore, have the same consequence for all passengers. For that reason also, it is difficult to see how a change in the bus route here could be said to constitute the imposition of a requirement to comply with 'a requirement or condition' for the purposes of s 66A(3) or s 66V(3) of the EO Act. However, as that issue was not considered by the learned Senior Member, it is unnecessary to deal with it further.
The balance of the grounds of appeal
Ground 4 is not concerned with the decision of the SAT which is the subject of the appeal. Rather, ground 4 is concerned with procedural issues which arose in directions hearings prior to the hearing of the s 47 application. Those matters are of no relevance to the question whether the learned Senior Member erred in law in reaching the Decision, so that it should be set aside on this appeal. While Mrs Krysiak did not abandon this ground of appeal, Mr Krysiak acknowledged that the issues raised by ground 4 were not directed to the decision under appeal. Ground 4 is misconceived.
For completeness, in the course of the hearing of the appeal Mr Krysiak made some submissions contending that his mother was denied procedural fairness at the hearing on 4 April 2016. That was a matter not raised by ground 4 or any of the other grounds of appeal. However, I should add that there is no foundation for the contention that Mrs Krysiak was denied procedural fairness at the hearing on 4 April 2016. The s 47 application was made on notice to her, she filed written submissions in response to it, she heard the PTA's submissions in support of its application to dismiss under s 47, Mr Krysiak was given the opportunity to make submissions on Mrs Krysiak's behalf at the hearing, and did so, and the learned Senior Member was at pains to direct Mr Krysiak's attention to the key issue for determination at the hearing, namely whether the complaint should be dismissed for the same reason that a similar complaint was dismissed in Edney.
Ground 5 of the grounds of appeal does not raise any issue different from that raised in grounds 1 and 2 of the grounds of appeal.
Ground 6 of the grounds of appeal is misconceived. Section 3 of the EO Act sets out the objects of the EO Act, namely to eliminate, so far as is possible, discrimination on the grounds covered by the EO Act (including on the grounds of age and impairment), in the areas covered by the EO Act (work, provision of services and so on), and to promote recognition and acceptance within the community of the equality of men and women, and of the equality of all people, regardless of race, sexual orientation, religious or political conviction, impairment or age. The application of s 47 of the SAT Act to summarily dismiss a complaint which has no substance or is misconceived ‑ a judgment which is to be made by reference to the requirements of the EO Act itself ‑ is not contrary to the objects of the EO Act.
Mr Krysiak submitted that the EO Act requires a fair hearing, and an investigation, of complaints referred to the SAT by the EOC, and that it was the antithesis of that obligation, and contrary to the objects of the EO Act, for the SAT to dismiss a complaint, on technical grounds, and without a hearing of the complaint on its merits. In making that submission, Mr Krysiak sought to rely on two decisions of the Queensland Civil and Administrative Tribunal (QCAT).[79] Neither of those decisions established any principle, binding on this Court, that a complaint under anti-discrimination legislation may not be summarily dismissed by an administrative tribunal such as the SAT.
[79] Gough v State of Queensland [2013] QCAT 320; Aigner v State of Queensland [2012] QCAT 397, appeal dismissed in State of Queensland v Aigner [2013] QCATA 151.
In Aigner, the QCAT refused an application to summarily dismiss Ms Aigner's claim of discrimination on the ground of impairment, which was brought pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (which is in relevantly identical terms to s 47 of the SAT Act). The basis for the application was the contention that Ms Aigner did not have evidence to support her claim that she was suffering from an impairment for the purposes of the legislation.[80] However, the QCAT did not suggest that s 47 could not be used in relation to a complaint of discrimination. Rather, the QCAT accepted that the fact that Ms Aigner contended that her human rights had been breached was a factor relevant to the exercise of the discretion to dismiss, as was the requirement on the QCAT (which requirement also applies to the SAT) to deal with matters with as little formality and technicality as possible. In that context, the contention that Ms Aigner did not have evidence to support her claim that she suffered from an impairment was viewed as a technical argument about the nature of the evidence on which she relied. Consequently, the QCAT held that it could not be said that Ms Aigner's complaint was so clearly without merit as to warrant its summary dismissal.[81] That can be contrasted with the present case, in which the SAT proceeded on the assumption that Mrs Krysiak's factual assertions could be made out, and found that nonetheless the claim was misconceived or lacking in substance.
[80] Aigner v State of Queensland [2012] QCAT 397 [4].
[81] Aigner v State of Queensland [2012] QCAT 397 [11], [13].
Furthermore, in Gough the QCAT dismissed a complaint brought by Ms Gough under the Queensland anti-discrimination legislation pursuant to s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (which is in relevantly identical terms to s 48 of the SAT Act). Section 48 of the SAT Act permits the SAT to strike out or dismiss a proceeding or part thereof which is being conducted by one party to disadvantage the other. That section is not relevant to the present case.
Accordingly, s 3 of the EO Act does not prevent the SAT from dismissing a complaint pursuant to s 47 of the SAT Act.
Conclusion
Leave to appeal should be refused and the appeal will therefore be dismissed.
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