KULIGOWSKI and DEPARTMENT OF TRANSPORT

Case •

[2012] WASAT 174

•

17 AUGUST 2012

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION:   KULIGOWSKI and DEPARTMENT OF TRANSPORT [2012] WASAT 174

MEMBER:   MS D TAYLOR (SENIOR MEMBER)

HEARD:   4 JULY 2012

DELIVERED          :   17 AUGUST 2012

FILE NO/S:   EOA 16 of 2012

BETWEEN:   MAREK KULIGOWSKI

Applicant

AND

DEPARTMENT OF TRANSPORT
Respondent

Catchwords:

Equal opportunity - Unlawful discrimination - Complaint dismissed by Commissioner for Equal Opportunity - Referral of complaint to Tribunal - Application to strike out proceeding - Complaint struck out as lacking in substance

Legislation:

Equal Opportunity Act 1984 (WA), s 66A, s 66J
State Administrative Tribunal Act 2004 (WA), s 46, s 47(2)

Result:

Proceeding struck out

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondent:     Ms S Teoh

Solicitors:

Applicant:     N/A

Respondent:     State Solicitor's Office

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

Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141

Laurent and Commissioner of Police [2009] WASAT 254

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

  1. The respondent applied to strike out a claim for unlawful discrimination on the ground of impairment in the area of access to places that had been dismissed by the Commissioner for Equal Opportunity as lacking in substance and referred to the Tribunal at the request of the applicant.

  2. The Tribunal granted the application and struck out the proceeding, considering the complaint to be about behaviour that fell outside the ambit of the Equal Opportunity Act 1984 (WA).

  3. The Tribunal's reasons for striking out the proceeding were delivered orally at the hearing.  Those reasons, taken from the transcript and edited in some respects, were as follows.

Background

  1. Mr Marek Kuligowski (applicant) is a taxi driver whose agreement with the respondent permits him to pick up fares in certain areas, but not in others.  He describes himself as an 'Area Restricted Taxi Operator for the City of Swan, Mundaring and Kalamunda' and the agreement as being one for a 'restricted licence'.

  2. The respondent is the government department with responsibility for regulating the taxi industry.  It sets the terms and operating conditions for restricted licences and employs a number of compliance officers to monitor their use and police any breaches of the terms or conditions.

  3. The proceeding before the Tribunal arises as a result of an incident that occurred at Perth International Airport (airport) on 6 January 2011, when the respondent's Senior Compliance Officer, Mr Mark Kearns, (Senior Compliance Officer) spoke to the applicant and told him not to park in the bus lane whilst he used the public toilets.

  4. As a result of this exchange, on 28 June 2011 the applicant lodged a complaint with the Commissioner for Equal Opportunity (Commissioner), in which he alleged discrimination on the ground of impairment in the area of access to places and vehicles.  The Commissioner investigated the complaint and endeavoured, without success, to help the parties reach an agreement at conciliation.

  5. On 8 February 2012, the Commissioner notified the applicant in writing that she was dismissing the complaint as lacking in substance, and advised the applicant that if he was dissatisfied with her decision, he had the right to request the referral of the complaint to the Tribunal.

  6. The applicant exercised his right to request the referral of the matter, and so, on 20 April 2012, the Commissioner referred the complaint to the Tribunal together with a report of her investigation.

  7. At the first directions hearing on 8 May 2012, the Tribunal directed the respondent to file and serve a document which sets out its contentions as to whether the matters the subject of complaint (set out at pages 44 ­ 49 of the book of documents) were capable of amounting to unlawful discrimination.  The matter was adjourned to a further directions hearing on 19 June 2012.

  8. On 29 May 2012, the respondent filed a document in compliance with the direction entitled 'Respondent's Outline of Contentions'.  It contended that the applicant's case was misconceived and lacking in substance, because he had failed to identify a proper factual or legal basis for the three matters about which he made complaint, that would bring them within the terms of the Equal Opportunity Act 1984 (WA) (EO Act). It also contended that the application was doomed to fail, because the applicant raised and relied on matters over which the Tribunal had no jurisdiction.

  9. On 15 June 2012, the applicant filed a response to the respondent's contentions, settled by his legal adviser at the Transport Workers Union of Western Australia, in which he conceded that two of his three complaints did not fall within the terms of the EO Act.  The single issue left for determination related to a complaint arising from an incident at the airport on 6 January 2011 between the applicant and the Senior Compliance Officer.

  10. On 19 June 2012, the Tribunal listed the respondent's application to have the matter dismissed under s 46 of the State Administrative Tribunal Act 2004 (WA) for hearing on 4 July 2012.

The allegation of unlawful discrimination

  1. In his complaint to the Commissioner, the applicant says the following:

    …

    Events leading to the complaint

    21.On 6 January 2011 I took a booking to the International Airport at 8:00 am[.]

    22.On the way I notice [sic] white car following me, so [I] decided to take some back streets to lose him[.]

    23.When I got to the airport, I needed to go to the toilet, so I park [sic] in the bus lane[.]

    24.Mark Kearns came up and started to yell at me.  I told him [']I need to use [the] toilet['], but he told [me] to go park in the Rental­Car car park.

    25.I told Mark Kearns that I would get a fine if I park in there and he said he didn't care.

    26.I telephone [sic] my union rep and he said to get his ID[.]

    27.Because Mark Kearns did not let me go to [the] toilet I had to relieve myself in my car.

    28.I was very upset and went home for rest of day [sic].

    29.Officer Kearns has seen my disable ACROD sticker, yet he was making fun of me, in front of other taxi drivers.

    …

  2. The complaint arises in the context of an established and ongoing dispute between the parties about the areas in which the applicant was permitted to operate under the terms of his licence.  Material provided by the applicant to the Commissioner to assist her in the investigation of the complaint reveals that there was a vexed issue about the locations in which the applicant, and other taxi drivers like him, could pick up fares dating back at least until the middle of 2008.

  3. The Tribunal draws this conclusion because the applicant provided the Commissioner with a copy of a letter dated 7 July 2008 from the Department for Planning and Infrastructure, that concerned whether or not the applicant could drop off and pick up passengers in the Valentine Road area of the airport, and because a number of other documents provided by him to the Commissioner indicate that he and fellow drivers were engaged in an ongoing dialogue with the respondent about, what they saw as, the erosion of their right to pick up passengers in and about the airport complex.

  4. Moreover, in the course of the hearing, the applicant produced a letter from the airport authorities supporting his assertion that, at the time of the incident, he had special permission to park in the bus lane when he used the public toilets, because of his disability.

  5. According to Ms Teoh, who appeared for the respondent, the applicant was seen to be, or perceived to be, a driver who flouted the terms of his licence.  As a result, on 6 January 2012, he came into conflict with the Senior Compliance Officer, who was doing no more than the job he was required to do, which was to police any potential or actual infringements of a restricted licence in the operating area of the airport.  The Senior Compliance Officer was not aware of any arrangement for the applicant to park in the bus lane.

Refusing a person with an impairment access to a public place

  1. Section 66A of the EO Act provides:

    66A.    Discrimination on ground of impairment

    (1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of impairment if, on the ground of -

    (a)the impairment of the aggrieved person; or

    (b)a characteristic that appertains generally to persons having the same impairment as the aggrieved person; or

    (c)a characteristic that is generally imputed to persons having the same impairment as the aggrieved person; or

    (d)a requirement that the aggrieved person be accompanied by or in possession of any palliative device in respect of that person's impairment,

    the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who does not have such an impairment.

  2. Section 66J of the EO Act provides:

    66J.     Access to places and vehicles

    (1)It is unlawful for a person (in this section referred to as the discriminator) to discriminate against another person (in this section referred to as the aggrieved person) on the ground of the aggrieved person's impairment -

    (a)by refusing to allow the aggrieved person access to or the use of any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not; or

    (b)in the terms on which the discriminator is prepared to allow the aggrieved person access to or the use of any such place or vehicle; or

    (c)by refusing to allow the aggrieved person the use of any facilities in any such place or vehicle that the public or a section of the public is entitled or allowed to use, for payment or not; or

    (d)in the terms on which the discriminator is prepared to allow the aggrieved person the use of any such facilities; or

    (e)by requiring the aggrieved person to leave or cease to use any such place or vehicle or any such facilities.

The relevant legal principles

  1. The principles to be applied in applications to the Tribunal to strike out a proceeding as being misconceived or lacking in substance are considered in the cases of Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 and Laurent and Commissioner of Police [2009] WASAT 254 (Laurent).

  2. Any decision to strike out a proceeding is made with a great deal of caution, for the reasons given by Deputy President Judge Pritchard, as she then was, in Laurent at [18]:

    The power in s 47 of the [State Administrative Tribunal Act 2004 (WA)] has been exercised infrequently by the Tribunal.  That is not surprising.  The Tribunal is not bound by the practices or procedures applicable to courts of record, and it is required to act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms: s 32(2) of the [State Administrative Tribunal Act 2004 (WA)].  Consistent with the informality of the Tribunal's procedures, proceedings before the Tribunal are not conducted by reference to formal pleadings.  In this context, any application to dismiss or strike out a proceeding in the Tribunal should be approached with a great deal of caution.  That will be all the more so when the party whose case is the subject of an application under s 47 is self­represented, does not have the benefit of legal representation or legal training, and may have difficulty in precisely setting out their claim in writing.

  3. Where the application is made at an interlocutory stage, the Tribunal must assume that all of the factual assertions made by the applicant will be made out.

  4. The term 'misconceived' connotes a misunderstanding of legal principle, while the term 'lacking in substance' connotes an untenable proposition of law or fact.

The facts ­ agreed and assumed

  1. There was a large measure of agreement between the applicant and the respondent about the central facts of this single issue.

  2. In considering the application to strike out the proceeding, the Tribunal starts by assuming that the applicant will be able to establish certain facts, including any facts that may be in dispute.

  3. So, for the purposes of this application, the Tribunal assumes that the applicant will be able to demonstrate, on the balance of probabilities, that he suffers from an impairment that makes it difficult for him to delay going to the toilet.  The Tribunal also assumes that the applicant will be able to prove that prior to 6 January 2011, he had explained his problem to the airport authorities and, as a result, had been told that he could park in the bus lane while he used the public facilities.

  4. Whilst proving that he has a disability is essential to satisfy the provisions of s 66J of the EO Act, it is not the only ingredient that the applicant needs to prove in order to demonstrate that discrimination has taken place. He must also establish that he was refused access to the public toilets at the airport because of his impairment. Inherent in establishing this aspect of the claim is an ability to demonstrate that the respondent's Senior Compliance Officer had the authority to deny him access to the relevant public place.

  5. The parties agree that the respondent has no control over the public toilets in issue.  These form part of the airport complex.  The Senior Compliance Officer has no more authority than does the applicant to deny anyone access to the use of the facilities.  The applicant accepts that the Senior Compliance Officer did not tell him that he could not use the toilet, but that he should park in the rental­car car park, and not in the bus lane, whilst he used it.  It is not one and the same thing.

  6. The parties agree that the Senior Compliance Officer was interested in the applicant's vehicle for reasons that may be wider than this single issue.  This was unlikely to have been the first occasion on which the Senior Compliance Officer, or one of his colleagues, had noticed the applicant's taxi in the vicinity.  According to the applicant, it was certainly the first time when anything occurred like the altercation that he describes.

  7. The Tribunal accepts the applicant's account for the purpose of this application.  He says that he picked up a fare early in the morning, delivered it to the airport at 8 am and having dropped off his fare, parked in the bus lane with the intention of going to the toilet to relieve himself, before, probably, doing a loop of the one­way system, and joining the taxi rank in the hope of picking up another fare.  The Tribunal assumes this to have been the applicant's intention and aspiration, because in the course of the hearing he produced a letter from the Minister of Transport that would appear to support his claim; that provided he picks up another fare within 15 minutes of dropping off his previous fare, he is entitled to be in the airport vicinity.

  8. The issue was one of timing.  Provided that the applicant dropped off his fare, used the public toilets, returned to his taxi and made his way around the one­way system and onto the rank within the time permissible (15 minutes), he should not face caution or notice of infringement.

  9. If the applicant is right, as the Tribunal assumes him to be for the purposes of this application, there was no reason for the Senior Compliance Officer to speak to him on the morning of 6 January 2011.  The Senior Compliance Officer did not police the bus lane on behalf of the respondent or on behalf of the airport authorities.  He was not responsible for telling taxi drivers or members of the public parked in the bus lane to move on, or required to alert them to the risks of a fine or a parking ticket.

  10. The parties' accounts of the conversation that took place between the two men on 6 January 2011 are identical in their essential elements.  The conversation concerned parking in the bus lane and use of the public toilets.  It was not a conversation that either man appeared to welcome or enjoy, and it resulted in the applicant driving away feeling upset, aggrieved, embarrassed and insulted.

Conclusion

  1. Unfortunately for the applicant, his experience of the event does not mean that he was the victim of discrimination within the meaning of the EO Act.

  2. It appears to the Tribunal, accepting the applicant's case at its highest for the purpose of this application, that he was, at best, the victim of an unnecessary, inappropriate and, perhaps, unwarranted intervention from a person in a position of authority.  As explained to the applicant at the commencement of the hearing, being on the receiving end of rude and bad behaviour does not mean that someone is the victim of unlawful discrimination.  The applicant's description of what he experienced on that day could be described, perhaps more accurately, as an instance of harassment.

  3. The issue for the Tribunal is whether the applicant's case, taken at its highest, is capable of founding a claim of unlawful discrimination under the terms of s 66J of the EO Act.

  4. The applicant was not denied access to the public toilets at the airport on 6 January 2011 because of his impairment.  He did not use them because when he stopped in the bus lane he was approached by the Senior Compliance Officer in the context of a rumbling dispute about whether or not the terms of the applicant's licence permitted him to remain in the airport vicinity after dropping off a fare.  What followed occurred because the Senior Compliance Officer attempted to police the bus lane in suggesting that the applicant park elsewhere whilst he used the toilets, in ignorance of any special arrangement that the applicant had made with the wardens who police the bus lane.  The Senior Compliance Officer's ignorance of the arrangement and distrust of the applicant caused the problem, not an act of unlawful discrimination.

  5. Whilst the applicant may be able to establish that he suffers from an impairment within the meaning of the EO Act, and that the respondent's Senior Compliance Officer behaved towards him in a manner that was confronting and regrettable, on his own account, he will be unable to show that the respondent refused him access to a public place.  As a result, his claim is untenable and doomed to fail.

  6. For the reasons above, the proceeding is struck out.

Order

  1. On an application to strike out the proceeding determined by Senior Member D Taylor on 4 July 2012, it is ordered that:

    1.Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA), the proceeding is struck out as lacking in substance.

I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS D TAYLOR, SENIOR MEMBER

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Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

2

Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
Laurent v Commissioner of Police [2009] WASAT 254