Moxon (No 2) v Westbus Pty Ltd

[2002] NSWADTAP 24

Appeal Panel

CITATION:	Moxon (No. 2) -v- Westbus Pty Ltd (EOD) [2002] NSWADTAP 24
PARTIES:	APPELLANT John Moxon RESPONDENT Westbus Pty Ltd
FILE NUMBER:	019052
HEARING DATES:	25/03/02
SUBMISSIONS CLOSED:	03/25/2002
DATE OF DECISION:	08/15/2002
DECISION UNDER APPEAL:	Moxon -v- Westbus Pty Ltd [2001] NSWADT 159
BEFORE:	Hennessy N (Deputy President); Rice S - Judicial Member; Jowett T - Member
CATCHWORDS:	leave to extend to the merits - relevant/irrelevant considerations - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	001098
DATE OF DECISION UNDER APPEAL:	09/24/2002
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Disability Discrimination Act 1992
CASES CITED:	Moxon v Westbus Pty Limited (EOD) [2000] NSWADTAP 12 Moxon v Westbus Pty Limited [2001] NSWADT 159 Bonella & Ors v Wollongong City Council [2002] NSWADTAP 25 Bonella & ors -v- Wollongong City Council [2001] NSWADT 194 McDonald v Puplick & Ors (unreported, Matter No 30090/97 [1998] NSWSC 428 (12 June 1998) Maguire v Sydney Organising Committee for the Olympic Games (SOCOG) (2001) EOC 93-123 Cooper & Ors v Holiday Coast Cinema Centres Pty Ltd (HREOC unreported, 29/8/1997) Scott & Anor v Telstra Corporation Limited (1995) EOC 92-717 Druett and Cooper v State of New South Wales (2000) HREOC H99/6, 17 April 2000 Hills Grammar School v Human Rights & Equal Opportunity Commission & Ors (2000) EOC 93-081 Finney v The Hills Grammar School (1999) EOC 93-020 Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 The Queen v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 Australian Gas Light Co v Valuer General (1940) 40 SR(NSW) 126; House v The King (1936) 55 CLR 499 Commissioner of Police, NSW Police Service v Valkai (No 2) [2001] NSWADTAP 43
REPRESENTATION:	APPELLANT N Beaumont, barrister RESPONDENT C Ronalds, barrister
ORDERS:	The appeal is dismissed.

History of these proceedings

1 This is the second time that this matter has come before the Appeal Panel. A brief history of the proceedings is outlined below.

2 On 5 April 1997 Mr Moxon lodged a complaint with the President of the Anti-Discrimination Board (the President). That complaint alleged that Westbus Pty Ltd (Westbus) had discriminated against him in contravention of the Anti-Discrimination Act 1977 (the ADA) on the ground of disability. Mr Moxon uses a wheel chair and he alleged that Westbus had denied him access to bus services on Routes 600, 606 and 607.

3 The circumstances of Mr Moxon’s complaint were that on 29 March 1997 he attempted to board a Westbus vehicle travelling on route 600 to Knightsbridge. The bus driver told Mr Moxon that the bus had no ramp, hoist or other device that would enable him to board the bus. Mr Moxon also said in his complaint that “Until independent access is provided I cannot use any Westbus.”

4 The President referred Mr Moxon’s complaint to the Tribunal and the matter was heard on 21 September 1999. On 29 September 1999 the Tribunal handed down a decision dismissing the complaint. The Tribunal found that while Westbus had indirectly discriminated against Mr Moxon on the ground of disability, it had not breached the ADA because it was able to make out the defence of unjustifiable hardship.

5 Mr Moxon appealed against the Tribunal’s decision to the Appeal Panel. The grounds of appeal related to the way in which the Tribunal had dealt with the question of whether Westbus had made out the defence of unjustifiable hardship. There was no appeal in relation to the Tribunal’s finding that Westbus had indirectly discriminated against Mr Moxon on the ground of disability.

6 On 25 July 2000 the Appeal Panel upheld the appeal and set aside the Tribunal’s decision that Westbus had made out the defence of unjustifiable hardship. (Moxon v Westbus Pty Limited (EOD) [2000] NSWADTAP 12). The basis for setting aside this aspect of the decision was that the Tribunal had not explained their reasoning process adequately. In particular they had not specifically referred to the factors in s 49C of the ADA (which defines what constitutes unjustifiable hardship) or engaged in any balancing process in relation to those factors. That aspect of the case was remitted to the Tribunal to be heard and decided again.

7 In its second decision handed down on 24 September 2001 (Moxon v Westbus Pty Limited [2001] NSWADT 159) the Tribunal again dismissed the complaint. The main issue which arose for the Tribunal’s consideration was whether circumstances which had arisen since the complaint was lodged with the President were relevant to the Tribunal’s consideration of whether the defence of unjustifiable hardship had been made out. The Tribunal summarised the submissions by the parties at paragraphs 12-14 of the decision.

At the hearing additional evidence was submitted in respect of the present factual situation concerning bus routes 600, 606 and 607 and the finances of the Respondent. The Tribunal accepts the submission of the Respondent that the complaint (if it did apply generally) had been narrowed to only bus routes 600, 606 and 607.

Counsel for the Respondent submitted that the time for assessing the defence of unjustifiable hardship was the date of the complaint, 5th April l997. Further that any new evidence tendered to this hearing unrelated to the 'justifiable hardship' issue should only be considered in deciding what orders the Tribunal would make if it found the 'justifiable hardship' issue not made out, and on that basis the complaint was proved.

Counsel for the Complainant has submitted that the material that was before the Tribunal has been substantially updated by each party and that there is no real doubt that the Tribunal is under a legal obligation to have regard to that fresh material now in determining whether or not the defence of unjustifiable hardship is made out at the relevant times; not just April l997 but ongoing until today. It was submitted that the complaint was an ongoing complaint, that until a remedy is provided for the discriminatory conduct about which the Complainant has complained he is still being discriminated against until the discriminatory conduct is removed.

8 The Tribunal decided that the relevant time at which unjustifiable hardship is to be considered is the date of the complaint. It was not in dispute that evidence arising after the date of the complaint could be taken into account in determining the orders that the Tribunal should make if it found the complaint to be substantiated.

9 The Tribunal went on to consider the evidence in relation to the factors in s 49C and concluded that Westbus had proved the defence of unjustifiable hardship in s 49M(2). Mr Moxon appealed against this decision to the Appeal Panel.

Grounds of appeal

10 The first ground of appeal was that the Tribunal had erred in its finding that the relevant time for Westbus to prove the unjustifiable hardship defence is the date of the complaint.

11 The second ground was that in determining whether the defence had been made out, the Tribunal failed to consider any option for making the buses accessible other than an option which would impose an unjustifiable hardship on Westbus.

12 The third ground was that the Tribunal failed to take into account a relevant consideration listed in s 49C(a), that is the benefits which would accrue to persons other than Mr Moxon if Westbus provided accessible services.

Jurisdiction and legislative provisions

13 The Appeal Panel has jurisdiction to hear this matter under s 113(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 113(2) allows a party to appeal to an Appeal Panel of the Tribunal on any question of law. With leave, the appeal may extend to a review of the merits of the appealable decision.

14 The substantive provision relevant to this case is s 49M of the ADA which makes it unlawful for a person (in this case Westbus) to "discriminate" against another person (in this case Mr Moxon) in the provision of goods and services on the ground of the person's disability. Section 49M provides that:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:
(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.
15 The “service” in this case is bus travel on routes 600, 606 and 607. Westbus submitted that while Mr Moxon had attempted to board a route 600 bus on 29 March 1997, the parties had agreed that the complaint related to services on bus routes 606 and 607 as well. The Tribunal conducted its inquiry on that basis. (See Moxon -v- Westbus Pty Limited (EOD) [2000] NSWADTAP 12 at [15]). Given that the Tribunal has conducted its inquiry in relation to routes 600, 606 and 607, and neither party has previously raised an issue in relation to that course of action, we have assumed for the purposes of this appeal that the complaint made on 29 March 1997 covers all three routes.

16 Mr Moxon alleges that Westbus discriminated against him in relation to the terms on which they provided him with a bus service on these routes.

17 The term "discriminate against another person on the ground of disability," which appears in s 49M(1), is defined in another section of the ADA - s 49B(1). Section 49B(1) defines what is commonly known as direct and indirect disability discrimination. It is not in dispute that the facts of this case constitute indirect disability discrimination. The relevant parts of s 49B(1) are as follows:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
18 Pursuant to s 49M(2) Westbus has a defence if it can establish that the provision of the relevant services to Mr Moxon would impose unjustifiable hardship. Unjustifiable hardship is another term appearing in s 49M which is defined elsewhere in the ADA. Section 49C provides that:
In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and

(b) the effect of the disability of a person concerned, and

(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

19 Under s 109 of the ADA, the onus of establishing the defence of unjustifiable hardship lies on the provider of the goods or services. That section states that:
Where by any provision of this Act or the regulations, conduct is excepted from conduct that is unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any inquiry lies upon the respondent.
Time for determining the unjustifiable hardship defence

20 Issues. Several issues arose for determination in relation to this matter. Those issues can be summarised as follows:

· is the complaint one of a continuing contravention of the Act (or to use the appellant’s words, ‘ongoing discrimination’) after the date of the complaint?

· when is the relevant time that the respondent must be able to make out the defence of unjustifiable hardship?

· can circumstances which arise after that time be relevant to the issue of whether unjustifiable hardship has been proved?

21 C ontinuing contravention . Mr Moxon submitted that because the complaint referred to the Tribunal was one of ongoing or continuing discrimination, the onus is on Westbus to make out the defence of unjustifiable hardship up to and including the date of hearing. Mr Moxon submitted that Westbus has continued to deny him access to certain bus services from the day he first attempted to board a Westbus bus on 29 March 1997 until the present day. According to Mr Moxon the ongoing nature of the complaint was evident from the terms of the letter of complaint he wrote to the President of the Anti-Discrimination Board. In that letter he mentioned that he attempted to board a Westbus vehicle on 29 March 1997. He also said in his complaint that “Until independent access is provided I cannot use any Westbus.”

22 Appeal Panel’s decision on continuing contravention. In Wollongong City Council v Bonella & Ors [2002] NSWADTAP 26 at [89], the Appeal Panel agreed with the reasoning of the Tribunal at first instance that “Any complaint lodged with the President can only encompass conduct which occurred prior to the actual date of the complaint.” (Bonella & ors -v- Wollongong City Council [2001] NSWADT 194 at [55]). The circumstances of Bonella were that the complainants (employees of Wollongong City Council) applied in April 1996 to be allocated motor vehicles with private use rights. The complainants alleged that the complaint was an on-going one, because since at least April 1996 the respondent had discriminated against them by not providing them with private use rights to a motor vehicle. The Tribunal rejected the complainants’ submission that the Council had engaged in ongoing discrimination after the date of the complaint.

23 We agree with the Appeal Panel’s reasoning and conclusion on this question in Wollongong City Council-v-Bonella & ors and Bonella & ors v Wollongong City Council [2002] NSWADTAP 26 at [89]. A complaint cannot include conduct which is continuous or ongoing after the complaint has been made.

24 To some extent, this finding means that the appellant’s submission that the unjustifiable hardship defence must be made out continuously up to the date of the hearing, falls away. Nevertheless we will go on to consider his submissions.

25 Time at which the respondent must be able to make out a defence of unjustifiable hardship. Mr Moxon acknowledged that there is no relevant NSW authority on the scope of s 49C or the time when the unjustifiable hardship defence is to be determined. However he submitted that as a matter of statutory construction and having regard to the weight of authority in certain federal cases, his view that Westbus must be able to make out the defence of unjustifiable hardship up to and including the date of hearing, was the correct one.

26 Mr Moxon relied on what he says is the use of the future tense in s 49C(a), s 49C(b) and s 49M(2) in support of his submission. Section 49C states that when determining what constitutes unjustifiable hardship all the relevant circumstances of the particular case are to be taken into account including the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned and the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship. The use of what he says is the future tense in these provisions and in s 49M(2) (“would impose unjustifiable hardship”) was said to support the appellant’s submission.

27 Mr Moxon also relied on the decisions of the Human Rights and Equal Opportunity Commission (HREOC) in Maguire v Sydney Organising Committee for the Olympic Games (2001 EOC 93-123), Cooper & Ors v Holiday Coast Cinema Centres Pty Ltd (HREOC, unreported, 29/8/1997) and Scott & Anor v Telstra Corporation Limited (1995) EOC 92-717. These cases were all brought under the Disability Discrimination Act 1992 (DDA). Section 24 of the DDA makes disability discrimination unlawful in relation to the provision of goods and services and s 11 defines unjustifiable hardship in virtually identical terms to s 49M and s 49C of the ADA.

28 In Maguire v Sydney Organising Committee for the Olympic Games(SOCOG) (2001) EOC 93-123 the complainant, who is blind, complained to the HREOC that he had been unlawfully discriminated against by the respondent by its failure to provide a website which was accessible to him. The Hon Mr Carter QC found that providing a website which was accessible to the complainant would not have resulted in unjustifiable hardship. The Commissioner commented on the inordinate delay by SOCOG in rectifying the inaccessibility of the web-site and went on to say, at p 75,221 that:

. . . the question whether a respondent can properly allege and rely upon a claim of unjustifiable hardship has to be considered within a more reasonable time frame. The respondent might have considered its position in relation to the provision of an accessible website which complied with the W3C Guidelines:

· in the course of considering the preparation and implementation of an action plan under the DDA in the course of its organisation of the Sydney Olympic Games; or

· upon receipt of the complaint on or about 7 June 1999; or

· at any time subsequent to the notice by the Commission in February 2000 of its intention to continue to inquire into this part of the complaint.

29 Cooper & Ors v Holiday Coast Cinema Centres Pty Ltd (HREOC unreported, 29/8/1997) involved a complaint about a cinema complex which did not have wheelchair access. The complaint was made in August 1995 when the complex was being built. The complex had been completed by the time the matter came on for hearing. After listing the categories of work which were being carried out in August 1995, Commissioner Keim noted that at the time of the interim application the cost of installing the platform stairlifts, then argued to be $130,000, “was quite massive in contrast to the expenditure on the building which was then represented as being $100,000.” Commissioner Keim added that the “true comparisons are significantly different” and “the expenditure that would be needed to install platform stairlifts seems not quite so massive in comparison.” The Commissioner went on to state that:
Mr Batley, on behalf of the complainants, urged that I should judge the extent of the hardship of complying with an order as at the time that the building work was carried out. (This is also roughly the time at which the complaint was made.)

I am not of this view. I consider that conduct by a respondent to put itself in a more difficult position may be relevant to whether the facts of a particular case constitute “unjustifiable hardship.” However, at least on the issue of what remedies, if any, I should order, I find, in this case, that I must take into account the fact situation as revealed to me at the hearing and which would thus apply to the respondent in complying with any such order. (p 18)

30 The appellant submitted that this passage is authority for the proposition that the issues of liability and remedy are inseparable.

31 In Scott v Telstra, (supra) Telstra had refused to rent Mr Scott, who has a hearing impairment, a tele-typewriter (TTY). He made a complaint of direct and indirect discrimination under the DDA. Mr Moxon drew the Appeal Panel’s attention to the following passage from this decision:

I find, therefore that the defence of unjustifiable hardship has not been made out. The evidence leads me to conclude that the respondent has failed to take seriously the impact that the enactment of the DDA could have upon its operations. If it had done so I would have expected to receive evidence of relevant research, taking in overseas experience, the revenue to be expected from increased billings, the feasibility of small levy on all subscribers, and any reasonable adjustment to its present voluntary concessional programme. Even the making of the complaint in this matter failed to stir the respondent from its lethargy or intransigence. (p 78,402)
32 Respondent’s submissions. According to Ms Ronalds for the respondent, the passages from the cases quoted by the appellant do not support the proposition that unjustifiable hardship must be made out after the complaint has been lodged. For example, the comments quoted from Scott v Telstra (supra) at p 78,402 merely record Sir Ronald’s surprise that Telstra had not taken seriously the impact of the DDA on its operations.

33 In addition, there are other cases which do not support Mr Moxon’s view. In Druett and Cooper v State of New South Wales (2000) HREOC H99/6, 17 April 2000, the Inquiry Commissioner (A Street SC) took the date of the alleged act of discrimination as the date on which all the circumstances relevant to the defence of unjustifiable hardship should be assessed.

34 The appellant sought to distinguish Druett & Cooper v State of NSW (supra) by submitting that that case involved a discrete complaint of inability to access a court room on a specific day, rather than the ongoing denial of services. Alternatively the appellant submitted that the decision is wrong and Scott v Telstra (supra), Maguire v SOCOG (supra) and Cooper v Holiday Coast Cinema Centres (supra) should be preferred.

35 According to the respondent, the appellant has confused liability with remedies. There must first be an act of unlawful discrimination. The defence of unjustifiable hardship is a defence to that act and must be assessed at the time the alleged discrimination occurred.

36 Appeal Panel’s decision on time for unjustifiable hardship defence. We do not accept the appellant’s submission that the tense used in s 49C(a) and s 49C(b) and s 49M(2) supports their case. Section 49M is the substantive provision which makes certain conduct unlawful. That provision is expressed in the present tense: “It is unlawful . . .” The defence of unjustifiable hardship set out in s 49M(2) is a defence to the act of discrimination described in s 49M(1).

37 The Tribunal must assess whether the provision of a non-discriminatory service would have imposed unjustifiable hardship on the respondent. In making that assessment the Tribunal must look at the factors listed in s 49C. Section 49C is not the substantive provision with which a service provider must comply. That provision merely lists the factors that a Tribunal must take into account if the service provider raises the defence of unjustifiable hardship.

38 In our view, the Human Rights and Equal Opportunity cases to which the appellant referred do not support his submission or were not correctly decided.

39 In Maguire’s case (2001) EOC 93-123, the Commissioner first found that SOCOG had directly and/or indirectly discriminated against the complainant. The Commissioner went on to evaluate the competing evidence in relation to the unjustifiable hardship defence. He addressed the factors relevant to the assessment of unjustifiable hardship in s 11 of the DDA and concluded that the respondent could not avoid liability for its discriminatory actions by claiming unjustifiable hardship. The Commissioner went on to consider whether, even if the respondent’s evidence was preferred, the defence of unjustifiable hardship could be made out. SOCOG submitted that with the Olympic Games imminent it was impossible to render the website accessible.

40 The Commissioner commented that this submission raised the question as to “the time at which a respondent in the position of SOCOG needs to address the issue if it is to validly claim unjustifiable hardship.” The Commissioner’s response to this question was that:

In my view one who has unlawfully discriminated in breach of the DDA cannot delay the final determination of a complaint by the Commission and take advantage of matters consequential upon that delay in order to support its alleged inability to cure its default.
41 The Commissioner elaborated on this view later in the decision where he said that:
In the Commission’s view the issue whether unjustifiable hardship can in a particular case relieve against a finding of discrimination cannot be seen to vary or alter with the passage of time. Whether there has been discriminatory conduct and whether relief is available . . . has to depend upon the relevant matrix of facts which is at the source of the complaint. It is the making of the complaint which activates the inquiry not only in relation to the issue whether there has been discrimination but also whether hardship can be relied upon. It would seem absurd to hold that the “defence” may not be available at one point but be a decisive factor at a later time.
42 The Commissioner concluded by saying that “The only relevance of time in this context is in relation to the form of relief which might be considered appropriate.” These passages make it clear that Maguire’s case (supra) does not support the appellant’s contention, in fact it is clear authority for the contrary position.

43 Commissioner Keim’s comments in Cooper’s Case (supra) suggest that he misdirected himself in relation to the application of the unjustifiable hardship defence. The Commissioner disagreed with what he said was the complainant’s submission in that case that he “should judge the extent of the hardship of complying with an order as at the time that the building work was carried out.” Earlier in the decision he had said that “in terms of the effect of the order on the respondent, it is appropriate for me to look at the hardship that might be suffered”. With respect, the test in the DDA (and the ADA) is not whether a respondent would suffer unjustifiable hardship in complying with an order. The test is whether the respondent would have suffered unjustifiable hardship in providing the goods or services in a non-discriminatory manner. Because the Commissioner posed the wrong question, we are not persuaded by his answer.

44 Further support for the proposition that unjustifiable hardship must be made out at the time of the alleged act of discrimination can be found in the Federal Court decision of Hills Grammar School v Human Rights & Equal Opportunity Commission & Ors (2000) EOC 93-081. In that case Tamberlin J dismissed an application for judicial review of a decision of the Human Rights and Equal Opportunity Commission in Finney v The Hills Grammar School (1999) EOC 93-020. The circumstances of the case were that The Hills Grammar School refused to enrol Scarlett Finney, an eight year old child with spina bifida, on the basis that it would cause the school unjustifiable hardship to accommodate her needs. Tamberlin J upheld the Commission’s decision that the school had not made out the defence of unjustifiable hardship. He impliedly accepted the appellant’s submission that the unjustifiable hardship defence only applies at the time of the child’s admission as a pupil when he said:

Counsel for the School has pointed out that the unjustifiable hardship provision in s 22(4) only applies at the time of admission as a pupil . . . (p 74,324 [41])
45 Tamberlin J went on to determine the appropriate period against which the question of unjustifiable hardship should be evaluated. Because the period during which Scarlett Finney would be enrolled at the school was not known, the Commissioner at first instance accepted the complainant’s submission that unjustifiable hardship should be assessed taking into account Scarlett’s needs from Kindergarten to Year 6. Tamberlin J accepted that this was a reasonable approach. This point highlights the fact that while the defence of unjustifiable hardship must be made out at the time of the alleged act of discrimination (in this case at the time of enrolment), difficulties which a respondent can reasonably foresee at the time the alleged discrimination occurred, may be taken into account when making that assessment.

46 Applying this reasoning to the present case, in assessing any unjustifiable hardship that Westbus may have faced in providing accessible buses in April 1997, the anticipated cost of providing and maintaining accessible buses into the future could have been taken into account.

47 In Scott v Telstra (supra) Sir Ronald Wilson found that Telstra had indirectly discriminated against Mr Scott by failing to provide him with a TTY. Sir Ronald went on to deal with the defence of unjustifiable hardship, saying, at 78,401, that:

In my opinion, the content of the term “unjustifiable hardship” will depend upon the circumstances of each case. In the present case, the meaning of the term will emerge from: (1) identifying what magnitude of difficulty would confront the respondent . . . if there were to be a finding of unlawfulness ; and (2) establishing whether or not imposing the relevant obligation is justified by reference to the benefits or fairness, if any, that would come from imposing it. (Emphasis added.)
48 Sir Ronald was probably referring to a finding of discrimination rather than a finding of unlawfulness because a finding of unlawfulness could only be made after consideration of any defence of unjustifiable hardship. In our view, the magnitude of any difficulty confronting the respondent must be assessed, not at the time of a finding of discrimination, but at the time of the alleged act of discrimination. To this extent we do not agree with Sir Ronald’s characterisation of the defence of unjustifiable hardship.

49 Sir Ronald Wilson then went on to find that the defence of unjustifiable hardship had not been made out. He then makes the comments quoted by the appellant in para 31 above. The comments reflect Sir Ronald’s view that Telstra had failed to take the provisions of the DDA seriously. His comment that “even the making of the complaint in this matter failed to stir the respondent from its lethargy or intransigence” does not necessarily reflect a view on his part that unjustifiable hardship should be assessed at the time the complaint is made. Nevertheless, for the reasons outlined above, in our respectful view, Sir Ronald was not correct if he intended to find that unjustifiable hardship should be assessed at some time after the time at which the alleged act of discrimination occurred.

50 Our conclusion, based on relevant case law, statutory construction and legal principle is that the time for assessing whether unjustifiable hardship has been made out is the date of the alleged contravention of the Act. The defence of unjustifiable hardship is a defence to an act of discrimination. The defence must be available at the time the act occurred, not at some later time.

51 The Tribunal below decided that the relevant time for proving unjustifiable hardship was the date of complaint. To do so was an error of law. Our view is that the relevant date is the date or dates of the alleged discriminatory conduct, not the date of the complaint. The lodging of a complaint will necessarily take place some time after that act or acts have occurred. Because there were only 5 days between the act of discrimination and the lodgement of the complaint this error would not have materially affected the Tribunal’s decision.

Evidence of circumstances arising after the act of discrimination

52 The appellant’s final submission in relation to the first ground of appeal was that circumstances which arose after the date of the complaint should be taken into account in determining whether the respondent had made out unjustifiable hardship. The Tribunal had erred by confining itself exclusively to the evidence as at the date of the complaint. Relying on Cooper & Ors v Holiday Coast Cinema Centres Pty Ltd (supra), the appellant submitted that the Tribunal should have considered evidence of the appellant’s financial circumstances within any reasonable period of time which it would have taken to remedy the unlawful conduct. Such a time frame would have extended at least until the appellant’s purchase and delivery of new vehicles for the services in question. Westbus put on confidential evidence during the Tribunal hearing about the circumstances that had taken place since the date of the complaint.

53 Respondent’s submissions. Ms Ronalds, on behalf of the respondent to this appeal, submitted that the fresh evidence of Westbus’ financial circumstances could only relate to the question of what orders, if any, the Tribunal should make. According to the respondent, the appellant was confusing the issue of liability and remedies. Liability for discrimination must be decided separately from the question of any appropriate remedy. While circumstances which occur after the date of an alleged act of discrimination are relevant to remedies, they cannot be relevant to the question of whether a person is liable for allegedly discriminatory conduct.

54 Tribunal’s decision on the relevance of events arising after the date of the complaint. Although the defence of unjustifiable hardship must be assessed as at the date of the allegedly discriminatory act, evidence of matters which have occurred after that date may be relevant in assessing whether the defence has been made out. Authority for this point was provided in Bonella & ors -v- Wollongong City Council [2001] NSWADT 194 at [56]:

The complainants are entitled to rely upon circumstantial evidence in order to prove the main facts in issue in this case. As the leading commentators reveal, circumstantial evidence includes both "prospectant" and "retrospectant" evidence ( see e.g. JD Heydon, Cross on Evidence 6th Aust ed: Sydney: Butterworths 2000 at page 15). Prospectant evidence is admitted and acted upon in some cases because "the occurrence of an act, state of mind or state of affairs in the past justifies an inference that the act was done, or state of mind or affairs existed, at the moment of time into which the court is enquiring". Retrospectant evidence is similarly admitted and acted upon in some cases because "the subsequent occurrence of an act, state of mind or state of affairs justifies an inference that the act was done, or that the state of mind or affairs previously existed" (Heydon, Cross on Evidence at page 15).
55 Pursuant to s 49C(c), one of the matters which must be taken into account in assessing unjustifiable hardship is “the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.” (Section 49C(c). There may be cases where inferences can be drawn about the financial circumstances of a respondent at the time of the alleged contravention, from evidence of later expenditure or other activities. For example, if a respondent spent a great deal of money on an unrelated expense soon after the alleged act of discrimination, it may be open to infer that the money was available to be spent on making a service non-discriminatory. It will be a matter for the Tribunal in each case to assess the relevance and reliability of any such evidence and the inferences which may or may not be drawn.

56 In this case the appellant did not submit that the fresh evidence they put on would have allowed the Tribunal to draw inferences about its financial circumstances as at the date of the alleged discriminatory conduct. The appellant’s submission was that the Tribunal should have considered evidence within any reasonable period of time which it would have taken to remedy the unlawful conduct. In our view, this submission confuses liability for discriminatory conduct with any appropriate remedy for that conduct. If the Tribunal had rejected Westbus’ unjustifiable hardship defence, but Westbus had made their bus services accessible within a reasonable period of time, this may well have affected the Tribunal’s decision about the appropriate orders to be made. It is not correct to assert that a respondent will escape liability for discriminatory conduct if they remedy the position within a reasonable period of time. Any defence must be made out at the time the alleged conduct occurred. In the light of this analysis we have concluded that the Tribunal did not make any error of law in relation to this question.

Second ground of appeal

57 The appellant’s second ground of appeal was that the Tribunal erred by failing to consider whether any option for making the buses accessible short of that which imposed an unjustifiable hardship, would remedy the discriminatory conduct. The Tribunal said at [24] that “on the face value of the original complaint all buses would have required fitment - on the submissions put to the tribunal only 45 buses would have needed to be fitted.” The appellant maintains that he expressly did not advocate the purchase or retrofitting of 45 new vehicles, or 100% accessibility on all service on the relevant routes. Even a relatively small number of accessible services, identified on the timetable, would improve the situation. According to the appellant there were several options for making the routes accessible other than the installation of a second entry door, which would not impose any substantial financial burden. The appellant submitted that only one of these options was addressed by the Tribunal and its failure to refer to these submissions in its reasons constitutes an error of law. (Dennis Wilcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 per Jenkinson J at 276.)

58 The appellant’s submissions in relation to this ground fall into two categories. Firstly, the appellant states that he would have been satisfied with less than 100% access on all three routes. The appellant’s complaint was that he was denied access to bus services on Routes 600, 606 and 607. While he may have been able to negotiate a settlement with Westbus on the basis of less than 100% access, the Tribunal’s task is to determine whether there has been a contravention of the Act. It is not relevant that, as an informal resolution to his complaint, the appellant would have been satisfied with an outcome that did not give him access to all buses on Routes 600, 606 and 607.

59 The second aspect of the appellant’s submission is that the Tribunal did not consider all the options suggested by the appellant in determining unjustifiable hardship. The appellant listed five options which were available to Westbus to improve accessibility on the three routes, after the discriminatory conduct had occurred. Again, the difficulty with this submission is that it focuses on whether Westbus would suffer unjustifiable hardship if it chose to make the routes more accessible in the future. The question for the Tribunal was whether Westbus would have suffered unjustifiable hardship if it had made the three routes accessible at the time of the alleged act of discrimination. The Tribunal was not asked to consider evidence of options which Westbus had available to it at the time and had not acted on. Consequently this ground of appeal must fail.

Third ground of appeal

60 The appellant’s third ground of appeal was that the Tribunal made no reference to a relevant consideration under s 49C(a), namely the benefits which would accrue to persons other than the complainant if the respondent provided accessible services. The appellant pointed out that in the Appeal Panel’s first reasons for decision (Moxon v Westbus Pty Limited (EOD) [2000] NSWADTAP 12) the Panel held, in accordance with The Queen v Toohey; ex parte Meneling Station Pty Ltd (1982) 158 CLR 327, that each of the factors listed in s 49C must be given weight as a fundamental element in the decision making process.

61 Section 49C(a) states that:

In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned
62 The first Appeal Panel decision made the following comment in relation to the Tribunal’s first decision:
It is unclear to us . . . the extent to which the Tribunal took into account the factors listed in s 49C(a) and ( b) or the weight it gave to those factors. The nature of the benefit or detriment likely to accrue or be suffered by any persons concerned was not articulated. The number of people with disabilities who would use the service if it was accessible and the disadvantages of alternative means of transport were not addressed. (At [69] and [70].)

We have reached the same conclusion in relation to s 49C(a) and (b) as we reached in relation to s 49C(c). We do not know, on the basis of the Tribunal's written reasons, the extent to which it took into account the benefits or detriment likely to accrue or be suffered by any persons concerned or the effect of the disability of a person concerned. Nor do we know the weight that the Tribunal gave to those circumstances.

63 In its second decision, which is the subject of the current appeal, the Tribunal summarised at [19] and [20] the benefits and detriment likely to accrue to Mr Moxon if Westbus made the routes accessible. Despite the fact that there was evidence of benefits which would be likely to accrue to other persons, the Tribunal did not mention that evidence in its reasons. Given the Appeal Panel’s previous findings, which should have alerted the Tribunal to the necessity to consider each element in s 49C, we can only assume that the Tribunal overlooked this matter. To do so was an error of law.

64 We must determine whether, if the Tribunal had taken into account the nature of the benefit or detriment likely to accrue or be suffered by any persons (other than Mr Moxon), their decision would have been different. (Australian Gas Light Co v Valuer General (1940) 40 SR(NSW) 126; House v The King (1936) 55 CLR 499 at 504-5.) In our view the Tribunal would not have come to a different view on the unjustifiable hardship defence had they turned their minds specifically to this element.

Leave to appeal on the merits

65 The appellant’s final submission was that leave should be granted to extend the appeal to the merits of the Tribunal’s decision in accordance with s 113(2)(b) of the ADT Act. That provision states that:

An appeal:
(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

66 The appellant noted the Appeal Panel’s comments in Commissioner of Police, NSW Police Service v Valkai (No 2) [2001] NSWADTAP 43 at [12] that in accordance with the principles in House v The King (1936) 55 CLR 499, an application for extension of an appeal to the merits, should only be granted where the legal error identified is so significant as to have been likely to have materially affected the outcome.

67 We have not found a legal error in this case which is likely to have materially affected the outcome. The Tribunal’s first error was to nominate the date of the complaint rather than the date of the alleged act of discrimination as the relevant time for determining unjustifiable hardship. Its second error was to fail to expressly take into account the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned. We have concluded that that neither error would have made a difference to the Tribunal’s decision.

Orders

The appeal is dismissed.