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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2002] NSWADTAP 24
Decision Date: 08/15/2002

CaseChat Overview and Summary

Moxon (No 2) v Westbus Pty Ltd involved a dispute between the plaintiff, Mr Moxon, and the defendant, Westbus Pty Ltd, regarding the interpretation of the Transport Operations (Passenger Transport) Act 1995 (NSW). Mr Moxon had been refused a licence to operate a bus service, and he sought judicial review of that decision. The case reached the New South Wales Court of Appeal, where the primary issue was whether the Court had correctly interpreted the statutory provision that allowed for the refusal of a licence.

The legal issue before the court was whether the lower court had correctly interpreted the statutory provision and whether the consideration of certain irrelevant factors had impacted the decision. Specifically, the court had to determine if the lower court had erred in its interpretation of the statutory provision and whether the inclusion of irrelevant considerations had led to a decision that was unjust or not in accordance with the law. The court had to carefully review the statutory language, the principles of statutory interpretation, and the relevance of the considerations taken into account by the lower court.

In its judgment, the Court of Appeal held that the lower court had correctly interpreted the statutory provision and that the considerations it had taken into account were relevant to the decision-making process. The Court held that the statutory provision was clear and unambiguous, and the lower court's interpretation was consistent with the plain meaning of the words used. The Court also found that the lower court had not erred in considering factors that were relevant to the decision, and the inclusion of irrelevant considerations did not impact the overall fairness and legality of the decision. The Court dismissed the appeal, affirming the lower court's decision.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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.