Krysiak v Public Transport Authority of Western Australia
[2016] FCCA 2121
•18 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KRYSIAK v PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA | [2016] FCCA 2121 |
| Catchwords: PRACTICE AND PROCEDURE – Interim injunction – whether basis for grant of interim injunction made out. |
| Legislation: Australian Human Rights Commission Act 1986 (Cth), ss.46PP, 46PQ Disability Discrimination Act 1992 (Cth), ss.4(1), 5, 6, 13(4), 24 Equal Opportunity Act 1984 (WA), s.66A |
| Cases cited: Ellis v FJM Property Pty Ltd [2016] FCCA 808 Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; (1911) 17 ALR 285 Hewit v Dempsey & Anor [2016] FCCA 904 Re Boulton; Ex parte Construction, Forestry, Mining and Energy Union (1998) 85 IR 468; (1998) 73 ALJR 129 Re The Minister for Immigration & Multicultural Affairs; Ex parte Fejzullahu & Ors [2000] HCA 23; (2000) 171 ALR 341 Reynolds v The Minister for Health & Anor [2010] FMCA 843; (2010) 247 FLR 425; (2010) 63 AILR 101-274 Sims v Jooste & Ors (No.2) [2016] FCCA 1468 |
| Applicant: | EUGENIA KRYSIAK |
| Respondent: | PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA |
| File Number: | PEG 366 of 2016 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 12 August 2016 |
| Date of Last Submission: | 12 August 2016 |
| Delivered at: | Perth |
| Delivered on: | 18 August 2016 |
REPRESENTATION
| For the Applicant: | Mr T Krysiak (by leave) |
| Counsel for the Respondent: | Mr T Pontre |
| Solicitors for the Respondent: | State Solicitor’s Office |
ORDERS
That the interim interlocutory injunction made on 12 August 2016 be discharged.
That the application for an interim injunction be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 366 of 2016
| EUGENIA KRYSIAK |
Applicant
And
| PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
Application for urgent injunction
The applicant in this matter, Eugenia Krysiak (“Mrs Krysiak”) filed an application on 11 August 2016 said to be made under the Disability Discrimination Act 1992 (Cth) (“DD Act”) and the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”) alleging unlawful discrimination and seeking an urgent injunction against the respondent, the Public Transport Authority of Western Australia (“PTA”):
… prohibiting it from removing or otherwise altering bus route 14 until investigation of matter 2016-10088 is completed; or, in the alternative, if by the time this application is heard route 14 has been removed, the PTA is injuncted to restore route 14 to the prior status quo until the hearing and determination of the matter by the HREOC is completed; in order to preserve the status quo and to protect the rights of all mobility disabled people who benefit from bus route 14 and whose rights would be harmed by its removal.
This Court has an implied jurisdiction to preserve the subject matter of litigation so as to effectively exercise its processes, or otherwise maintain the status quo, so as to prevent a proceeding being rendered nugatory pending an urgent interim determination: Tait v The Queen (1962) 108 CLR 620; (1962) 36 ALJR 330; CLR at 623 per Dixon CJ; Re The Minister for Immigration & Multicultural Affairs; Ex parte Fejzullahu & Ors [2000] HCA 23; (2000) 171 ALR 341 at [7] per Gleeson CJ; Hu v Minister for Immigration & Anor [2016] FCCA 382 at [5] per Judge Street. Accordingly, on 12 August 2016 the Court made the following orders:
1.By way of interim interlocutory injunction, the Public Transport Authority of Western Australia must not cease to operate, or alter, the bus route known as Bus Route 14, presently operating in the suburb of Mount Hawthorn in Western Australia between Brady Street and The Mezz Shopping Centre, before 4.00pm on Thursday, 18 August 2016.
2.The Applicant’s injunction application be adjourned to 3.30pm on Thursday, 18 August 2016 for judgment.
3.Costs be reserved.
The Court observes that an application for an interim injunction of the type sought by Mrs Krysiak may be made by the Court in the exercise of its power under s.46PP(1) of the AHRC Act.
An urgent hearing of the interim injunction application was held on the afternoon of 12 August 2016, and at that hearing Mrs Krysiak’s son (“Mr Krysiak”) was given leave by the Court to appear for Mrs Krysiak, the Court considering that to be appropriate in the circumstances having regard to Mrs Krysiak’s age and language ability (English being her second language), and because the matter had been called on urgently which might have precluded a lawyer from being briefed, and because Mr Krysiak was, seemingly at least, familiar with the relevant materials and issues: AHRC Act, s.46PQ(1)(c). As to the usual principles with respect to allowing a person to be represented other than by a barrister or solicitor in proceedings under the AHRC Act in this Court see Ellis v FJM Property Pty Ltd [2016] FCCA 808 at [7]-[14] per Judge Lucev (and cases there cited, including, in particular, Reynolds v The Minister for Health & Anor [2010] FMCA 843; (2010) 247 FLR 425; (2010) 63 AILR 101-274). The Court observed that Mr Krysiak’s leave to appear on the urgent interim injunction application would not necessarily serve as a precedent for any future right of appearance by him.
Grounds of application for urgent injunction
The grounds of the application for an urgent injunction are as follows:
1. The Applicant, Eugenia Krysiak is a member of the Seniors and Disabled Bus Action Group, all of whom are “affected persons” as defined by the AHRCA, Sections 3(1), and 46PP(1).
2. This injunction is sought to protect the rights of the applicant - and others - in the realms of equal opportunity discrimination and substantive equality, pursuant to the DDA, and the both real and apprehended damage to those rights by the respondent.
3. The Public Transport Authority of Western Australia (PTA) realigned the original bus route 15, in operation (“original route”) until 9 August 2015. The subsequent realignment of route 15 (“realigned route”) imposed an unreasonable distance requirement upon mobility disabled people, especially those that live in the local area. Bus route 14 was created on 10 August 2015 to mitigate the deleterious effects of the realignment, and the PTA have now proposed to remove route 14 after 12 August 2016, which will re-impose the unreasonable requirement on mobility disabled people in the Mt Hawthorn area.
4. The respondent PTA as a governmental entity owes a fiduciary duty to members of the public. The Interface between Equitable Principles and Public Law, 29 Oct. 2010, Chief Justice Robert French [especially at 7 - 12]. In the case of mobility disabled people, such as the appellant and others, that fiduciary duty is further extended by virtue of the DDA and the principles underpinning that Act, especially as expressed in section 3.
5. Bus route 14 was in operation originally for a trial period of six months, and this was extended by the PTA and/or Minister because of an undertaking given by the PTA that while the matter was in dispute bus route #14 would continue as it has been operating. Bus route 14 is such a limited operation in the grand scheme of PTA operations, so there is little if any inconvenience and/or cost to the respondent in being injuncted until this matter is finalised by HREOC.
6. The PTA had previously increased the service runs of the original route and now additionally has increased the number of service runs of the realigned route, most of which, together with many pre-existing service runs of route 15, have observably few - if any - patrons aboard in the realigned sections of Mt Hawthorn and Glendalough. Therefore, the respondent's potential defence/argument of saving on costs by removing route 14 would appear to be effete and nugatory, and in all of the material circumstances, balanced against the inconvenience and cost to the applicant (and indeed, all other mobility disabled people in the area), the injunction would be of absolutely minimal cost or inconvenience to the PTA.
Affidavits in support of application for urgent injunction
In support of the application Mrs Krysiak filed an affidavit on 11 August 2016 (“Mrs Krysiak’s Affidavit”) in which she deposes:
1. I am a disabled, elderly 88 year old pensioner who has lived at my present address for 50 years and relied on public transport for most of that time.
2. I am a member of the Seniors and Disabled Bus Action Group (SANDBAG), which has lodged a complaint with the Human Rights Commission, number 2016-10088.
3. I am an affected person for the purposes of Section 46PP of the Australian Human Rights Commission Act 1986.
4. I authorise Tad Krysiak, Convenor of SANDBAG, to act and speak on my behalf in this matter.
5. Fifty years ago, three bus routes serviced Mt Hawthorn and Glendalough - routes 14, 15 and 16. I used routes 15 and 16, which once passed in front of my house, where bus drivers would allow me to alight instead of at a stop.
6. Bus route 15 is a Public Transport Authority metropolitan bus route that has been running for 80 years, and for 40 years in its previous configuration, which provided mobility disabled people suitable public transport amenity in Mt Hawthorn and Glendalough, until 10 August 2015.
7. Transperth, a subsidiary division of the Public Transport Authority, the current government metropolitan public transport provider, decided that - from 10 August 2015 - bus route 15 would travel on a realigned routing which avoids Brady and Tasman Streets in Mt Hawthorn, and this was since implemented.
8. As a result of the lobbying by disaffected Mt Hawthorn residents, especially the members of SANDBAG, Transport Minister Dean Nalder requested that Transperth investigate a suitable solution to the lack of public transport coverage due to the route 15 realignment.
9. In response to this request, Transperth decided to instigate the trial of a new bus route, number 14, to run at four times each weekday.
10. Bus route 14 really only effectively services four bus stops, as it coincides for the most part with bus route 15 which runs over 50 times per weekday.
11. Bus route 14 covers the deleted sections of route 15 from Brady and Tasman Streets, terminating at the Mezz shopping centre, allowing me - and other elderly and mobility disabled people - to travel for our basic daily needs.
12. Route 14 provides me and other mobility disabled people with the ability to be relatively mobile, but it is very limited compared to the former configuration of route 15.
13. Transperth recently put notices up stating that bus route 14 would be cancelled after 12 August 2016.
14. Were route 14 to be removed, my - and other mobility disabled people's - ability to travel and be independent will be severely curtailed and many of us will be forced to restrict our travel and mobility, using taxis when absolutely necessary, even to reach public transport.
15. Were route 14 to be removed, and I was to continue travelling as I do now, it would prove to be extremely expensive for me and I would estimate the amount of taxi fares to be in the order of $150 value per week. Other mobility disabled people in the area may be similarly affected.
16. As I am on a Commonwealth aged pension, which provides me with the ability to provide for the basic necessities of life, such an impost would be unsustainable and cause irreparable harm to my rights and the rights of the other mobility disabled people who use bus route 14.
17. I verily believe that the injunction for which I am applying is urgent as the removal of route 14 by the respondent is imminent.
18. I verily believe that, as route 14 has been running for twelve months and is very limited, continuation of the route until resolution of this present matter before this Honourable Court will result in little inconvenience or cost to the respondent, but removal of route 14 would cause considerable inconvenience to many mobility disabled people and an unacceptable cost.
An affidavit in support of the application for an urgent injunction was also filed by Mr Tad Krysiak on 11 August 2016 (“Mr Krysiak’s Affidavit”) in which he deposes:
1.I am the convenor of the Seniors and Disabled Bus Action Group (“SANDBAG”), which is a non-financial, unregistered, informal group of mobility disabled people.
2.I am the sole and authorised “office-holder” of SANDBAG.
3.On 24 July 2016 I submitted a complaint to the Human Rights Commission on behalf of the members of SANDBAG and others as representative complaint, pursuant to the Human Rights Act and the Disability Discrimination Act. Attached is a true copy of the complaint, numbering 3 pages, marked “TK1”.
4.The complaint was accepted by the Commission and given the number “2016-10088”. Attached is a true copy of the email from the HREOC, numbering 1 page, marked “TK2”.
5.Eugenia Krysiak is a member of SANDBAG of which there are 20 members, representing the mobility disabled members who benefit from bus 14, as well as the affected persons whose rights have been injured by the realignment of bus route 15.
Relevant content from the complaint to the AHRC (“AHRC Complaint”, which is wrongly described as a complaint to “HREOC” in Mr Krysiak’s Affidavit), is set out below.
Mrs Krysiak also filed, by leave, a supplementary affidavit in Court on 12 August 2016 (“Mrs Krysiak’s Supplementary Affidavit”) annexing an appeal notice filed in the Supreme Court of Western Australia in proceedings GDA 5 of 2016 dated 2 May 2016 (“Supreme Court Appeal Notice”). The Supreme Court Appeal Notice is an appeal from a State Administrative Tribunal of Western Australia (“SATWA”) decision of 4 April 2016, and states the following grounds of appeal:
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 Sections 90, 93, 107 of the Equal Opportunity Act I 984, 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 Sections 66A, 66J, 66K, 66V, 66ZE, and 66ZF of the Equal Opportunity Act 1984 was absent, when this element was demonstrably covered and provided by the both the Applicant and 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 nor recognised by the relevant law, ie the Equal Opportunity Act.
4. The learned member erred in law because he failed to apply Sections 39, 47 and 48 of the State Administrative Tribunal Act 2004, in relation to the Respondent's failure to comply with that Act in, and 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 Section 3 of the Equal Opportunity Act 1984.
The AHRC Complaint
The AHRC Complaint which is Annexure TK1 to Mr Krysiak’s Affidavit relevantly provides in relation to the complaint of discrimination on the basis of disability as follows:
Part C - What are you complaining about?
------------------------------------------------------------------------------I am complaining because I believe: (Please select at least one reason below)
I have been discriminated against because I have a disability
What is your disability?
Physical disability related to mobility.
When did the alleged event(s) happen?
From 10 August 2015
What happened?
In the densely populated Mt Hawthorn/Glendalough areas on the 80 year old local bus route #15, the PTA imposed an distance requirement of over 400m walking distance for many patrons - in the middle of each of the two areas - to be able to access any of its services. Those with mobility disabilities have been severely impacted as a result, many struggling to cope and some virtually immobile, having almost 700m to walk to get to any public transport.
Also, the topography (eg a steep hill) of the area along the realigned route #15 makes it additionally difficult for disabled people, which was never a problem as the previous alignment addressed that issue adequately.
The realignment of this route is an unnecessary duplication of other bus services in these two localities and the previous alignment was not only adequate but provided disabled people added and enhanced ability to access Transperth services. The current realignment has resulted in a considerably reduced amenity for mobility disabled people, while extra route #15 services have been put on which run empty or almost empty, as do the many service runs in off-peak times.
Please check this box if you intend to email the Commission supporting information.
Yes, already provided.
Part D - Other Information
------------------------------------------------------------------------------How do you think the complaint could be resolved?
The internationally accepted planning standard for public transport is centered around using a less than 400m walking distance to provide substantive equality, especailly for local disabled residents - which fosters social inclusion - with some jurisdictions using 300m or even 200m for densely populated areas.
The PTA can easily return the route to its former configuration at minimal cost, with the simple addition of a terminus at Cayley St (next to Glendalough train station) which could have been easily relocated from Leeder St at any time since the station opened about 20 years ago. The realignment was unnecessary and unreasonable in the first place as it duplicates other interconnecting bus routes #85 & #990 that enter the local train station.
Have you complained about this to another organisation?
No
Were you referred to us by another organisation?
No
(Transcribed verbatim).
Other matters
In the course of submissions Mr Krysiak referred to various Australian Bureau of Statistics (“ABS”) statistics concerning the percentage of people who were allegedly disabled in the suburb of Mt Hawthorn, and to a survey done by SANDBAG, as to mobility restricted persons along the route of bus number route 15. In the absence of evidence as to those statistics, and to the survey done by SANDBAG, the quoting of generalised statistics concerning population numbers and numbers of disability persons in a particular suburb are of no particular assistance to the Court, particularly in the absence of evidence as to the locality of those persons vis-a-vis the relevant bus route or routes. Even if such evidence had been properly put before the Court it would not have been able to overcome deficiencies in the application for an urgent injunction which are referred to below.
It emerged in the course of submissions, as a consequence of questions in relation to the Supreme Court Appeal Notice, that there had been a complaint made to the Equal Opportunity Commission of Western Australia (“EOCWA”) under the Equal Opportunity Act 1984 (WA) (“EO Act”) in relation to disability discrimination arising from the re-routing of bus route 15. A copy of the decision of the EOCWA was not provided to the Court. It further emerged that there had been a decision of SATWA which was the subject of the Supreme Court Appeal Notice, but a copy of the SATWA decision, which was made orally, is apparently not presently available in written form, and its content is not otherwise the subject of evidence except to the extent that some content may be discernible from the Supreme Court Appeal Notice. It further emerged, but only in Mr Krysiak’s reply to what was said by Mr Pontre on behalf of the PTA, that an urgent injunction application was made to the Supreme Court of Western Australia, seemingly in relation to bus route 14, and that the injunction sought was not granted. The Court was told that the decision of the Supreme Court of Western Australia to refuse that injunction was made on 11 August 2016, that is the day on which the application for an urgent injunction was filed in this Court, and the day before the hearing of that application for an urgent injunction in this Court.
The application for an urgent injunction was opposed by the PTA on the basis that there was no prima facie case, and in particular that no requirement or condition had been identified for the purposes of indirect discrimination under s.6 of the DD Act, and that the balance of convenience did not favour the grant of an urgent interim injunction.
Consideration
Section 46PP of the AHRC Act provides as follows:
(1) At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit Court may grant an interim injunction to maintain:
(a) the status quo, as it existed immediately before the complaint was lodged; or
(b) the rights of any complainant, respondent or affected person.
(2) The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.
(3) The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE or 46PH.
(4) The court concerned may discharge or vary an injunction granted under this section.
(5) The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.
In s.4(1) of the DD Act “disability” is defined as follows:
“disability”, in relation to a person, means:
(a) total or partial loss of the person's bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person's body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
(h) presently exists; or
(i) previously existed but no longer exists; or
(j) may exist in the future (including because of a genetic predisposition to that disability); or
(k) is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
Section 5 of the DD Act deals with direct disability discrimination and provides as follows:
(1) For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.
(2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if:
(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and
(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.
(3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.
Section 6 of the DD Act deals with indirect disability discrimination and provides as follows:
(1) For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and
(c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.
(2) For the purposes of this Act, a person (the discriminator ) also discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:
(a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and
(b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and
(c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability.
(3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case.
(4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition.
Section 24 of the DD Act deals with unlawful discrimination in relation to the provision of goods, relevantly for the purposes of this case services, and facilities, and provides as follows:
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes 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 makes those facilities available to the other person.
In relation to the operation of State and Territory laws s.13(4) of the DD Act provides as follows:
(4) If:
(a) a law of a State or Territory relating to discrimination deals with a matter dealt with by this Act (including a matter dealt with by a disability standard); and
(b) a person has made a complaint or initiated a proceeding under that law in respect of an act or omission in respect of which the person would, apart from this subsection, have been entitled to make a complaint under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part 2 of this Act;
the person is not entitled to make a complaint or institute a proceeding under the Australian Human Rights Commission Act 1986 alleging that the act or omission is unlawful under a provision of Part 2 of this Act.
In relation to an application for a quia timet injunction to prevent persons from holding or addressing a public event where it was alleged that there may be future unlawful acts or speech contrary to the provisions of s.18C of the Racial Discrimination Act 1975 (Cth), the Federal Court of Australia observed in relation to s.46PP of the AHRC Act as follows:
45 There are two threshold questions that must be decided on the limited evidence and argument now before me in order to determine whether an interlocutory injunction should be granted, as explained in Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57 at 81-84 [65]-[72] by Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed on this point (at 68 [19]).
46 Those questions are, first, whether the Council and Dr Rifi have made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that subsequently, at the trial of the proceedings, they will be found to be entitled to relief and, secondly, whether the inconvenience or injury that the Council and Dr Rifi would be likely to suffer, if an interlocutory injunction were refused, outweighs or is outweighed by the injury that Mr Burgess would suffer if an injunction were granted.
Sutherland Shire Council v Folkes [2015] FCA 1288; (2015) 331 ALR 494 at [45]-[46] per Rares J (“Folkes”).
A slightly expanded test was adopted by this Court in Hewit v Dempsey & Anor [2016] FCCA 904 at [7] per Judge Manousaridis (“Hewit”) as follows:
a)using the expressions interchangeably, that there be a serious question to be tried or a prima facie case of a respondent having engaged in unlawful discrimination against an applicant;
b)whether an applicant would suffer detriment if the interlocutory injunction was not granted, and whether damages would not be an adequate remedy for such detriment;
c)whether the balance of convenience favoured the granting of the injunction; and
d)whether the injunction sought goes no further than is required to ensure that the AHRC and this Court are in a position to effectively exercise their powers under the relevant Act, here the AHRC Act, read with the DD Act.
Whether the approach in Folkes or the approach in Hewit is adopted does not matter in this instance as Mrs Krysiak cannot succeed on either the more restricted or the more expansive bases referred to in Folkes and Hewit respectively.
There is no doubt that the Court has power to grant the injunction sought by Mrs Krysiak: AHRC Act, s.46PP(1).
It is not necessarily apparent whether any claim of disability discrimination in this case is made on the basis of direct discrimination under s.5 of the DD Act, or s.6 of the DD Act on the basis of a requirement or condition, although it appears that the latter is more likely. In either event, in broad terms, it makes no difference: for the purposes of s.5 of the DD Act there is no relevant comparator in the evidence as it stands before the Court, as is required, and for the purposes of s.6 there is no proper specification of a requirement or condition: Waters & Ors v Public Transport Corporation (1991) 173 CLR 349; (1991) 66 ALJR 47; (1991) 103 ALR 513: [1991] EOC 92-390, CLR at 393-394 per Dawson and Toohey JJ. In any event, whether it be a claim or direct or indirect discrimination, such a claim cannot found injunctive relief for the further reasons which follow below.
In this case although Mrs Krysiak asserts that she has a disability, and that it affects her mobility, there is no evidence as to:
a)the exact nature of the disability; or
b)the effect, if any, of the disability, and in particular to what extent, if any, it affects her mobility, that being a matter which would ordinarily call for expert specialist medical or allied health evidence; or
c)even if there were evidence of (a) and (b) above, to what extent that the effects of any disability may be overcome by alternative measures, such as mobility aides.
The Court observes that age alone is not a disability.
If the evidence remains as it is (and the Court appreciates that the application for an urgent injunction was brought urgently at short notice) then at any hearing of any application (bearing in mind that there is in fact no substantive application presently before the Court) the present evidence simply could not sustain a finding by the Court of disability discrimination, either direct or indirect, by the PTA against Mrs Krysiak, or any of the other persons who are apparently parties to what is described as a representative complaint before the AHRC, but of whom, in relation to this application, there is precious little evidence of their identity or of any disability that any one or more of them has.
The Court is also not persuaded that any damage that may be suffered by Mrs Krysiak pending a hearing and any relief in this Court (if an injunction were not to be granted) is not remediable in damages. There is an obvious monetary cost to alternative means of transport for Mrs Krysiak, and subject to proof of the actual cost of alternative means of transport for the relatively short journey to and from her home in Tasman Street, Mt Hawthorn to The Mezz Shopping Centre in Mt Hawthorn, and the necessity for her to undertake that journey, seemingly on a daily basis from Monday to Friday (which is when the number 14 bus route operates), any moneys expended would be recoverable by way of damages.
As to the balance of convenience there is little evidence that suggests that the balance of convenience weighs in the favour of a continuation of bus route number 14 so as to allow Mrs Krysiak to travel backwards and forwards to The Mezz Shopping Centre in Mt Hawthorn. Whilst in times past and gentler it may be that kindly bus drivers were prepared to allow her to alight in her street outside of her home, that does not, as is perhaps suggested by her affidavit, warrant a continuation of such a particular transport service, or even a more general service whereby the bus continues to run down the street in which she lives, perhaps dropping her at a stop in that street. The Court notes that there is no actual evidence as to where Mrs Krysiak presently gets on and off the bus, and how far it is from her home. That evidence might, for the purposes of balance of convenience, have been needed to be considered together with any evidence about the actual effects of any disability, which evidence is not before the Court, as has been observed above. Likewise, there is little evidence before the Court on the part of the PTA which would indicate that it is necessary to cease the service presently provided by buses operating on bus route number 14. In all of the circumstances, it suffices to observe that, on the evidence, it cannot be said that the balance of convenience either favours or does not favour the granting of the interim injunction.
As to whether the injunction goes any further than is required to ensure that the AHRC and this Court are in a position to effectively exercise their powers under the DD Act, or the AHRC Act, the Court considers that there must be considerable doubt as to whether the Court has jurisdiction in this matter, having regard to the provisions of s.13(4) of the DD Act. It appears that a complaint has been made in relation to the original route of bus number 15, which route ran along the route presently designated as the route for bus number 14. That complaint it would appear was dismissed by the EOCWA exercising powers under the EO Act: see the Supreme Court Appeal Notice. SATWA has then summarily dismissed some form of application, whether by way of an application for a further enquiry by SATWA or for review by SATWA of the EOCWA decision, and that summary dismissal is now on appeal to the Supreme Court of Western Australia: see the Supreme Court Appeal Notice. It suffices to observe that the initial complaint to the EOCWA is a step taken pursuant to the EO Act, and therefore on the face of it a matter dealt with by the EO Act in relation to a complaint which Mrs Krysiak would have been entitled to make under the AHRC Act, as she now does in respect of the intended removal of route number 14: see EO Act, ss.66A and AHRC Act, ss.24. In the Court’s view s.13(4) of the DD Act is likely to preclude this Court (and possibly the AHRC) from exercising jurisdiction under the AHRC Act to deal with any complaint of alleged discrimination under the DD Act in relation to the re-routing of bus route number 15, which was originally part of what is now bus route number 14: Price v DET(NSW) [2008] FMCA 1018 at [43]-[45] per Cameron FM. The Court observes that its determination of those issues is not assisted by the fact that the applicant did not, as would ordinarily be required in an injunction application, provide to the Court the decisions of the EOCWA and SATWA.
Given that it is the first duty of every Court to determine whether or not it has jurisdiction: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Proprietary Co Ltd (1911) 12 CLR 398; (1911) 17 ALR 285; CLR at 415 per Griffith CJ, 428 per Barton J and 454 per Issacs J; Re Boulton; Ex parte Construction, Forestry, Mining and Energy Union (1998) 85 IR 468; (1998) 73 ALJR 129 at 133 per Kirby J; Rentuza v Westside Auto Wholesale [2009] FMCA 1022; (2009) 236 FLR 231; (2009) 190 IR 207 at [6] per Lucev FM, applied in Halls v KR & MA McCardle & Sons Pty Ltd & Ors [2014] FCCA 316 at [17] and [48]-[49] per Judge Lindsay, and given that the Court must be satisfied if it is to grant an interim injunction under s.46PP of the AHRC Act, that it goes no further than is required to ensure the effective exercise of powers under the AHRC Act (and the DD Act) by the Court and the AHRC, there must, given the matters referred to above and s.13(4) of the DD Act, be considerable doubt as to whether the Court has jurisdiction, and therefore this aspect of the test for an injunction is not met. Alternatively, the doubts as to jurisdiction must weigh against the applicant in terms of the balance of convenience, for the Court should not where there are, as there are here, very considerable doubts as to its jurisdiction, grant an interim injunction.
Further, it was not disclosed until the reply on behalf of Mrs Krysiak by Mr Krysiak that the Supreme Court of Western Australia had only the day before the hearing in this Court, refused an injunction, seemingly in respect of the decision to terminate bus route number 14, or at the very least in relation to the original re-routing of bus number 15, which involves, if not the same, then a very substantially similar factual and legal matrix. In those circumstances, it is probable that the necessity for comity between judgments of State and federal courts, and perhaps arguably between a State superior and a federal inferior court, would require this Court to likewise dismiss the urgent injunction application now made to it. As this Court observed in Sims v Jooste & Ors (No. 2) [2016] FCCA 1468 at [29] per Judge Lucev:
Comity between federal and State courts is an important consideration in deciding cases, and generally federal and State courts ought not to be seen to be competing for litigation business and should not be hearing the same matters, or matters which are substantially similar, particularly where either a federal or a State court has already determined the matter or matters. Comity between federal and State courts is one aspect of the public interest which must be considered when determining whether or not a second set of proceedings constitutes an abuse of process having regard to proceedings which have already been instituted, or in this case, completed: Pegasus Leasing Limited v Cadoroll Pty Limited & Ors (1996) 59 FCR 152; [1996] ATPR 41-495; FCR at 158 per Lee and Tamberlin JJ.
The Court has therefore concluded that Mrs Krysiak’s application for an interim injunction ought to be dismissed, and it follows that the interim interlocutory injunction made on 12 August 2016 ought to be discharged, and there will be an order accordingly.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 18 August 2016
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