Moxon v Westbus Pty Limited (EOD)

[2000] NSWADTAP 12

Appeal Panel

CITATION:	Moxon -v- Westbus Pty Limited (EOD) [2000] NSWADTAP 12
PARTIES:	APPELLANT John Moxon RESPONDENT Westbus Pty Limited
FILE NUMBER:	999027
HEARING DATES:	20/04/2000
SUBMISSIONS CLOSED:	04/20/2000
DATE OF DECISION:	07/25/2000
DECISION UNDER APPEAL:	Principal matter
BEFORE:	Hennessy N (Deputy President); Rice S - Judicial Member; Bullock S - Member
CATCHWORDS:	adequacy of reasons - no evidence - relevant/irrelevant considerations - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	981001
DATE OF DECISION UNDER APPEAL:	09/21/1999
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Francey & Meeuwissen v Hilton Hotels of Australia Pty Ltd (1977) EOC 92-903 Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180 Scott and Disabled Peoples International v Telstra Corporation Limited (1995) EOC Francey & Ors v Hilton Hotels of Australia Ltd [1997] HREOCA 56 Scott and Bernadette Finney v The Hills Grammar School [1999] HREOCA 14 Hills Grammar School v Human Rights and Equal Opportunity Commission [2000] FCA 65 Rees v Australian Agency for International Development [1999] HREOCA 12 Druett v State of New South Wales Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 Sullivan v. Department of Transport (1978) 20 ALR 323 Pettitt v. Dunkley (1971) 1 NSWLR 376 The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR Tobacco Institute of Australia Ltd & Ors v National Health & Medical Research Council & Ors (1996) 71 FCR Department of Defence v Jodette Margaret Fox [1997] 3 FCA Absolon v NSW TAFE [1999] NSWCA 311 Public Service Board of New South Wales v. Osmond (1985-1986) 159 CLR Soulemezis v. Dudley (Holdings) Pty. Limited (1987) 10 NSWLR 247 R. v. Associated Northern Collieries (1910) 11 CLR 738 Repatriation Commission v. O'Brien (1984-1985) 155 CLR Repatriation Commission v Norman Kenneth Boyle [1997] 1269 FCA Haswell v Department of School Education [1999] NSWSC 1271 Waters v Public Transport Corporation 1991 EOC
REPRESENTATION:	APPELLANT J Griffiths, barrister RESPONDENT C Ronalds, barrister
ORDERS:	1. The appeal is upheld ; 2. The decision of the Tribunal made on 21 September 1999, that Westbus has made out the defence of unjustifiable hardship under s 49M(2) of the Anti-Discrimination Act 1977, is set aside ; 3. This aspect of the case is remitted to be heard and decided again by the Tribunal as originally or similarly constituted ; 4. No order as to costs.

Introduction

1 This is an appeal by Mr Moxon from a decision of the Equal Opportunity Division of the Tribunal made on 21 September 1999. The Tribunal’s decision was that Mr Moxon’s complaint of disability discrimination against Westbus Pty Limited (Westbus) be dismissed.

History of the proceedings

2 On 5 April 1997 Mr Moxon, who is President of the Physical Disability Council of New South Wales, lodged a complaint with the Anti-Discrimination Board. Mr Moxon uses a wheel chair. He lives in Winston Hills where Westbus is the only supplier of public transport. His complaint relates to bus routes 600, 606 and 607. Mr Moxon is unable to access the buses on any of these routes. He alleged that, as a consequence, Westbus had discriminated against him on the ground of his disability in contravention of the Anti-Discrimination Act 1977 (the ADA). The President of the Anti-Discrimination Board referred the complaint to the Tribunal on 19 October 1998.

3 Mr Moxon sought the following orders from the Tribunal:

(a) That the Respondent ensures that its public transport services on Route 600, Route 606 and Route 607 are made accessible to the Complainant within six months of the Tribunal’s judgment.
(b) That the Respondent pays the Complainant $40,000 damages for the disability discrimination which he suffers; and
(c) Such other orders as the Tribunal sees fit.

The Tribunal found that while Westbus had indirectly discriminated against Mr Moxon on the ground of disability, Westbus had not breached the ADA because they were able to make out the defence of unjustifiable hardship.

Jurisdiction

4 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. In this case, there was no application to extend the appeal to a review of the merits of the decision.

Legislative scheme

5 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.

6 The service in this case is bus travel on routes 600, 606 and 607. Mr Moxon alleges that Westbus discriminated against him in relation to the terms on which Westbus provided him with a bus service on these routes.

7 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. Mr Moxon submitted that the facts of this case constituted 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.

8 “Unjustifiable hardship” is another term appearing in s 49M which is defined elsewhere in the ADA. An alleged perpetrator of disability discrimination in the area of goods and services has a defence if he or she can establish that in all the circumstances of the case, the requirement leads to “unjustifiable hardship”. 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.

9 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.

The Tribunal’s decision

10 The Tribunal’s decision is arranged under five headings: Background (paragraphs 1-42); Issues (paragraph 42); Reasonableness (paragraphs 43-50); Unjustifiable Hardship (including Complainant’s submissions and Respondent’s submissions - paragraphs 51-68) and Conclusion (paragraphs 69-81).

11 Under the heading “Background” the Tribunal set out the factual background including the allegations in Mr Moxon’s complaint and the orders sought. The Tribunal also described the services offered by Westbus and the extent to which their buses are accessible to wheelchairs. Details were then provided of the steps Westbus had taken to make their buses accessible to wheelchairs. The Tribunal noted that Westbus had been unable to use some of the accessible buses because of problems with the road itself. As well, Westbus had applied for approval for a new route on which accessible buses could be used. The remainder of the information under this heading relates to various options which were available to Westbus to provide accessible buses and the pros and cons of each option.

12 Under the heading “Issues” the Tribunal summarised the issues:

(a) As to whether the requirement by the Respondent that the complainant enter its buses by steps is reasonable or not (s 49B(1))
(b) Whether the Respondent would suffer unjustifiable hardship if it was required to provide accessible buses on Routes 600, 606 and 607.

13 The next part of the decision deals with the first issue, that is whether Mr Moxon had made out a case of indirect disability discrimination in the provision of services, against Westbus. The element of indirect disability discrimination on which the Tribunal focused was “reasonableness”. A requirement (in this case that the complainant enter the bus by steps) which has a disproportionate impact on people with a disability, will be unlawful if it is “not reasonable having regard to the circumstances of the case.” The Tribunal concluded that:

On the evidence, the Tribunal finds that the lack of accessibility of the buses is affected by factors beyond the control of the Respondent however notwithstanding these factors the Tribunal is of the view that having regard to the circumstances of the case the requirement that the Complainant being a handicapped person using a wheel chair enter the bus by steps is not reasonable.

14 The “factors beyond the control of the Respondent” to which the Tribunal referred were the existing road impediments and the failure of the Department of Transport to approve the new route. The Tribunal’s finding that Westbus had indirectly discriminated against Mr Moxon on the ground of his disability in the provision of services, was not contested by either party in these proceedings.

15 The second issue identified by the Tribunal was set out under the heading “Unjustifiable hardship.” It is the Tribunal’s reasoning on this issue that was the main focus of the appeal.

16 The Tribunal set out the relevant sections of s 49M and s 49C and summarised Mr Moxon’s submissions in the following way:

52 The Complainant submits that the onus lies on the Respondent to establish unjustifiable hardship. He further submitted that under 49 C of the Act "unjustifiable hardship" is explained that in determining what constitutes unjustifiable hardship, for the purposes of the act, all relevant circumstances of the particular case are to be taken into account. Including, there are three matters that are identified, they are not exclusive, three matters; the nature, the benefit, or the detriment that is likely accrue or suffered by any persons concerned; the effect of the disability of a person concerned; and thirdly, the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship. The Act sets up a balancing exercise. It balances the rights and responsibilities of sides and takes into account the circumstances of any other affected persons.

53 The Complainant further submits what needs to be importantly considered from the outset of this matter is that from the Complainant's point of view he faces the situation of total inaccessibility of the Respondent's services, he is not able to use them whatsoever because of his disability.

54 Certainly the Respondent has suggested that it will be put to some financial cost and that there are some problems they face. It's not simply a question for determining unjustifiable hardship whether there is an imposition on the Respondent or whether there is a burden on the Respondent; the question is whether or not that burden is an unjustifiably hard one.

55 Commissioner Graeme Innes in the decision of Francey & Meeuwissen v Hilton Hotels of Australia Pty Ltd (1977) EOC 92-903, under the Disability Discrimination Act, the Commissioner explained in that case that many Respondents imply that the expenditure required to redress discrimination should be given greater weight than other factors. Whilst it is important, the Commissioner held the "question of financial concerns must be considered along with all other provisions of the Act" .

56 The Commissioner said, at EOC p.77,453:


"I do not suggest that intolerable financial imposts should be placed on the Respondents. However, for this defence to be made out the hardship borne must be unjustifiable. Therefore, if other factors mitigate in favour of preventing the discrimination - which is the Parliament's intention in this legislation - then the bearing of a financial burden by the Respondent may cause hardship which is deemed justifiable".

57 That is the entire concept before the Tribunal today. We are not denying that there is going to be some hardship imposed on the Respondent in making their routes 600, 606 and 607 accessible to Mr Moxon but in no way does the evidence suggest that the burden is an unjustifiable one.

58 The balance of the complainant's submission appear in the transcript pages 134 to 147.

17 Next, the Tribunal summarised Westbus’s submissions. The Tribunal referred to evidence concerning the viability of private bus routes in general after implementing the Commonwealth Standards. Standards are being developed by the Commonwealth government pursuant to similar provisions under the Disability Discrimination Act 1992 (Cth),

18 The decision goes on to detail what it calls “the relevant factors”.

66 The relevant factors include:
(a) capital expenditure on up to 45 new accessible buses, surplus to current requirements
(b) financial cost, lost time, and inappropriateness of retro-fitting hoists to all or some of the existing fleet
(c) failure to recover any or only minimal capital by way of sale of existing fleet
(d) significant loan funds which would threaten the long term financial stability of the company
(e) loss of seating capacity of 17%
(f) increased operating costs.
67 The current infrastructure problems on routes 606 and 607 and the failure of the Department of Transport to approve the alterations to route 600 means that any future developments are beyond the capacity of the Respondent to address or amend.

19 Under the final heading, “Conclusions”, at [69] the Tribunal notes firstly that it has considered “the effects on the Respondent’s business of the Respondent being required to make each of the buses that run on Routes 600, 606 and 607 accessible to persons in wheel chairs.” The Tribunal notes that Westbus’s “preferred solution” is to use the low floor buses it has already purchased. However it notes that it cannot use these buses on Routes 606 and 607 because of road impediments. The Tribunal goes on to find at [70] that:

The only way that it can provide buses on those Routes that allow wheel chair access is to either fit the existing buses that serve the Routes with hoist or lifts at a cost of $22000 each or dispose of the existing buses and purchase new buses already fitted with hoists or lifts. There are 45 buses serving Routes 600, 606 and 607. The Tribunal is not aware of the actual number serving 600 and 606 alone but has taken a figure of fifteen per route ie 30 buses which would require to be purchased new or retrofitted with hoists or lifts. The Tribunal considers that variations in the actual number of buses would not materially affect its decision.

20 The Tribunal then considered the effect on seating capacity, timing and safety of fitting hoists or lifts. After referring to some disadvantages in retrofitting existing buses and the fact that road impediments and approval of new routes are beyond the control of Westbus, the Tribunal stated that it:

. . . has carefully considered all the submissions of each party and all the exhibits. In view of the number of pages (approx 1000) it is not possible to summarise the effect of all the documents. The Complainant accepts what the documents say but says different inferences should be drawn from them to what the Respondent draws.

21 At [77], the Tribunal noted that:

The Complainant has told the Tribunal that there were a number of options open to the Tribunal to provide relief for the Complainant and that it was a matter for the tribunal to select the option rather than for the Complainant to state his preferred option. The Tribunal does not accept this submission.

22 After referring the Draft Standard developed by the Commonwealth government, the Tribunal concluded at [80] that:

Taking into account all of the matters set out in the evidence, the exhibits and submissions, the Tribunal is of the view especially having regard to the requirements of 49C the Respondent has proved on the balance of probabilities that "unjustifiable hardship" would occur to it in the provision of the access to its buses sought by the Complainant.

Issues in dispute

23 Before considering the grounds of appeal, it may be helpful to clarify the areas in issue between the parties at the initial hearing before the Tribunal. Westbus made several concessions in relation to this application. They are that:

· Mr Moxon has a disability pursuant to the definition of disability in section 4(1) of the ADA and that he requires the use of a wheelchair at all times for mobility;
· Westbus provides a service pursuant to the definition of service in s 4(1) of the ADA as its bus operations relate to transport; and
· Mr Moxon was unable to enter any Westbus operating on routes 600, 606 or 607 as no accessible buses were operating on those routes.

24 In paragraph [45] of its submission to the Appeal Panel, Westbus maintained that it “. . . cannot make the routes accessible without some alterations, amendments or additions both to the existing fleet and to the road infrastructure.” Westbus went on to submit at [49] that the only manner in which the buses can be made accessible is the purchase of new buses or the utilisation of 12 low floor buses. This assertion is not consistent with the Tribunal’s finding at [70] of the decision that “The only way that it can provide buses on those Routes that allow wheel chair access is to either fit the existing buses that serve the Routes with hoist or lifts at a cost of $22,000 each or dispose of the existing buses and purchase new buses already fitted with hoists or lifts.” Neither party submitted that the Tribunal had erred in law in making this finding.

25 There is no dispute that the manner in which bus fleets should be made wheelchair accessible is the choice of the operator. (Westbus’s submission at [21])

26 By way of information for the Appeal Panel, counsel for Westbus advised that part of what was Route 600 is now accessible to passengers using wheel chairs. The extent to which Route 600 is now accessible to passengers using wheelchairs and the consequences of any such finding, would be relevant for the Tribunal in coming to any fresh determinations if this matter is remitted.

Grounds of appeal

27 In his Amended Notice of Appeal, Mr Hillard, representing Mr Moxon, set out the following seven grounds of appeal:

1. The Tribunal erred in law by finding that the Respondent had discharged its onus in respect of Sections 49M(2) and 49C of the ADA;
2. The Tribunal erred in law by finding that unjustifiable hardship had been made out by the Respondent, in the absence of any evidence from the Respondent as to its financial circumstances. Section 49C(c) of the ADA specifically requires a party claiming unjustifiable hardship to present this information, and for the Tribunal to take this specific information into account in determining what constitutes unjustifiable hardship;
3. The Tribunal erred in law by finding that unjustifiable hardship had been made out by the Respondent, without any apparent consideration of the evidence of the effect of the complainant’s disability. Section 49C(a) of the ADA requires the Tribunal to take this specific information into account in determining what constitutes unjustifiable hardship;
4. The Tribunal erred in law by finding that unjustifiable hardship had been made out by the Respondent, without any apparent consideration of the evidence of the nature of the benefits likely to accrue to persons concerned. Section 49C(b) of the ADA requires the Tribunal to take this specific information into account in determining what constitutes unjustifiable hardship;
5. The Tribunal erred in law by finding that the Complainant failed to state the preferred relief sought by him; and
6. The Tribunal erred in law when it stated that it was not open for the Triubnal to select an outcome to provide relief for the Complainant from a range of options available;
7. The Tribunal erred in law because the Reasons for Decision of the Tribunal dated 21 September 1999 do not constitute proper or sufficient reasons such as are required for the purposes of section 89 of the Administrative Decisions Tribunal Act 1997 .

28 In their Amended Reply, Westbus made the following responses in relation to each of the grounds of appeal set out above:

1. The Tribunal did not err in law in finding that the Respondent had discharged its onus in respect of section 49M(2) AND 49C of the ADA. The Respondent contends that there was sufficient evidence before the Tribunal to reach its decision.
2. The Tribunal did not err in law by finding that unjustifiable hardship had been established by the Respondent. The Respondent contends that there was significant evidence of financial circumstances before the Tribunal. The term “financial circumstances” is not narrowly defined and is not restricted to meaning audited accounts of a corporation only. It encompasses the full range of financial matters, including purchase price of new buses, numbers needed to meet the Complainant’s apparent requirements, the resale market for second-hand buses, operational costs, and the financial viability of the company. Evidence was adduced by the Respondent on all these factors.
3. The Tribunal did not err in law by finding that unjustifiable hardship had been established by the Respondent. The effect of the Complainant’s disability was not a contested matter as it was conceded by the Respondent that the Complainant was required to use a wheelchair. Hence, no specific finding was required.
4. The Tribunal did not err in law by finding that unjustifiable hardship had been established by the Respondent. The benefit was capacity to use the Respondent’s bus services, and this was not a matter of contention. Hence, no specific finding was necessary.
5 & 6. The Complainant did not appropriately specify the orders he sought, and this disadvantaged the Respondent in meeting the Complainant’s case. The Complainant requested the Tribunal to determine the most appropriate orders, which had the effect of requesting the Tribunal to stand in the shoes of the management of the Respondent, and therefore make complex business decisions. This goes beyond power in section 113 of the ADA.
7. The Tribunal did not err in law on the basis that the Reasons for Decision did not constitute proper or sufficient reasons as required by section 89 of the ADA. Section 89 of the ADA provides that the Tribunal may give reasons for its decision either orally or in writing. The Tribunal published a written decision, including reasons for its decision, on 21 September 1999. In doing so, it fully complied with the relevant provisions of section 89 of the ADA. In particular, the provisions of section 89(5) of the ADA do not apply to a decision made pursuant to section 89(2) of the ADA.

Evidence of financial circumstances

29 The first two grounds of appeal include a submission that there was no evidence of the “financial circumstances” of Westbus and in that case the Tribunal has erred in law by finding that the Westbus has discharged its onus of providing unjustifiable hardship.

30 Both parties agreed that s 49M(2) operates as an exception, not as an element of liability to be established in the negative. (See s 109 and Cooper v Human Rights & Equal Opportunity Commission [1999] FCA 180 (4 March 1999) where the Federal Court discussed the meaning of a similar provision, namely section 23(2) of the Disability Discrimination Act 1992 (Cth)).

31 Section 109 of the ADA provides that the onus of proving any exception lies on the respondent. In the context of s 49M(2) and s 49C, s109 requires Westbus to prove that, taking into account all the relevant circumstances including those listed in s 49C, the provision of wheelchair accessible services on the three routes in question, would impose unjustifiable hardship on them.

32 Mr Griffiths submitted that Westbus has an evidentiary burden to provide the Tribunal with sufficient information so that it can weigh the relevant factors in s 49C. In the absence of sufficient information, the Tribunal would have no option but to conclude that the defence had not been made out.

33 Mr Griffiths fundamental argument was that Westbus did not provide any evidence whatsoever of its financial circumstances. Paragraph 19 and 20 of their written submission state, in part, that:

There was no dispute on the evidence that there was a cost involved to accommodate the applicant’s disability - installing a lift or hoist costs approximately $22,250 per vehicle, representing approximately 6% of the new vehicle purchase price of $330,000. (Mr Brennan, Transcript of Proceedings at pp 79-80). However the Respondent did not present any evidence regarding its own financial circumstances which suggested that this cost imposed an unjustifiable hardship on the company.

There was no evidence presented by the Respondent about its annual turnover, profit margin or capital expenditure.

34 Mr Griffiths submitted that the evidence presented was of a generic nature, relating to the private bus industry as a whole and did not include any specific information relating to Westbus or the three bus routes which were the subject of the complaint. Mr Griffiths concluded that there was no evidence on which the Tribunal could make findings of fact or draw inferences in respect of the financial circumstances of Westbus’s operation.

35 Ms Ronalds’ responded to this submission by making three points. These points relate firstly to the meaning of “financial circumstances”; secondly to the scope of the “services” which are relevant to financial circumstances; and thirdly to the nature of the evidence given in relation to financial circumstances.

36 In Ms Ronalds’ submission the term “financial circumstances” should not be interpreted narrowly. She said it does not refer to the requirements as set out in section 295(2) of the Corporations Law for the content of financial statements to be lodged with the Australian Securities and Investments Commission. In her view, there is no requirement for a respondent to present any particular kind of information. Information such as the purchase price of new buses, numbers needed to meet the complainant’s apparent requirements, the resale market for second hand buses and operational costs could all be considered as part of the Westbus’s financial circumstances. Ms Ronalds also submitted that Westbus’s business plan is relevant both to their financial circumstances and to s 49C(a) which refers to any detriment likely to accrue to a person concerned, including the respondent.

37 Mr Griffiths submitted that the term “financial circumstances” is broader than just the financial records of an organisation and that evidence such as annual turnover, profit margins and capital expenditure would be relevant.

38 In Scott and Disabled Peoples International v TelstraCorporation Limited (1995) EOC 92-717 people with hearing impairments complained that Telstra had discriminated against them by not supplying them with tele-typewriters (TTY’s) to enable them to communicate by text over the phone. The Human Rights and Equal Opportunity Commission noted at p 78,401 that it was constrained in discussing many of the financial details provided by the respondent because of a suppression order granted for reasons of commercial confidentiality. However, it is clear from a comment at p 78,396 of the decision, that details of “costs, profit, revenue” and “percentages” which form part of Telstra’s “financial circumstances” were in evidence.

39 Similarly, in Francey & Ors v Hilton Hotels of Australia Ltd [1997] HREOCA 56 (25 September 1997) the evidence of “financial circumstances” included overall revenue generated by the service provided, the contribution to revenue of the part of that service which is under consideration and the profitability of the service as a whole.

40 In Scott and Bernadette Finney v The Hills Grammar School [1999] HREOCA 14 (20 July 1999) at [6.9] the evidence of financial circumstances included current levels of debt and operating profit. On appeal, the Federal Court made the following comments in relation to “financial circumstances” at [50]:

As to the School's financial burden it is said that the Commissioner failed to consider the fact that the School operated to a budget which took account of long term planning. However, the School's funding and the financial consequences of accommodating Scarlett were considered with some particularity in par 6.9 to 6.11 inclusive. It is true that there is no specific finding as to the exact monetary figure required but there is a finding that "a much lesser expenditure" would be required than the approximate $1.1 million estimated by the School's consultant. ( Hills Grammar School v Human Rights and Equal Opportunity Commission [2000] FCA 65 per Tamberlin J)

41 In Rees v Australian Agency for International Development [1999] HREOCA 12 (15 July 1999) the evidence included the budget of a Commonwealth agency.

42 In Druett v State of New South Wales (Human Rights and Equal Opportunity Commission, 17 April 2000) Commissioner Street took into account at p 27 that:

. . . responsible financial administration of the respondent (a State agency) requires budgeting and allocation of resources as well as prioritising the demands on such allocations for the administration of justice in New South Wales. . . I find that the ability to vary budgetary allocations does not remove the imposition of unjustifiable hardship on the respondent in the provision of such services . .

43 Ms Ronalds’ second point in relation to this issue was that any consideration of “financial circumstances” should be confined to the precise service in issue, that is the three bus routes and not all the services provided by Westbus.

44 In response to this submission Mr Griffiths referred to s 49C and s 49M which state that the obligation is on “the person”, that is Westbus, to make out a case of unjustifiable hardship. Consideration of unjustifiable hardship must apply to the financial circumstances of that person not just to the viability of the particular part of the service that is the subject of the complaint.

45 In Scott and Disabled Peoples International v Telstra Corporation Limited (1995) EOC 92-717 Sir Ronald Wilson supports this construction. In deciding that the provision of TTYs did not cause Telstra unjustifiable hardship, Sir Ronald referred to “the capacity of the respondent to undertake the comparatively small additional cost of meeting the liability found to exist in these proceedings.” That capacity was not considered merely in relation to the provision of TTY services; it was considered in relation to the profitability of the company as a whole.

46 Ms Ronalds’ final point on this issue was that Westbus has provided evidence of their financial circumstances sufficient to discharge their onus of establishing unjustifiable hardship. This submission goes to the merits of the case. Neither party has sought leave for this appeal to extend to a review of the merits, so we make no findings in relation to this submission.

47 We have come to the view, on the basis of the reasoning set out below, that the complainant’s first two grounds of appeal, so far as they relate to the evidence of financial circumstances, should be rejected.

48 By listing “financial circumstances” and “the estimated amount of expenditure required to be made by the person” in the same sub-section, parliament intended any person interpreting this provision to consider evidence relating to the financial effect on a respondent of remedying any alleged discrimination. That effect includes not only an indication of the costs of compliance but also an indication of the ability of the respondent to absorb those costs.

49 However, it is up to a respondent to put forward the evidence of financial circumstances that they consider relevant and appropriate. “Financial circumstances” should not be interpreted narrowly as requiring certain kinds of documentary or other evidence. Depending on the circumstances of the case, evidence could include information about profitability, revenue, expenses, level of debt, ability to service loans; budget considerations and business plans. It could also include the opinion of the respondent as to their ability to absorb the costs of any proposed changes.

50 In this case, there was some, though very little, evidence of the ability of Westbus to absorb the costs of making the bus routes in question accessible. A person or organisation who leads little evidence of its financial circumstances will be at greater risk of an adverse finding. But an adverse finding is not inevitable.

51 When assessing unjustifiable hardship the Tribunal must take into account the “financial circumstances” of the person who is the respondent to the proceedings, not just the financial circumstances relating to the particular service in dispute. We agree with the complainant’s submission on this point that 49M(2) relates to the person providing the services and it is their financial circumstances as a whole that are relevant when considering whether unjustifiable hardship has been made out. This conclusion is supported by the decisions in Scott and Disabled Peoples International v TelstraCorporation Limited (1995) EOC 92-717 and Francey & Ors v Hilton Hotels of Australia Ltd [1997] HREOCA 56 (25 September 1997).

52 Related to this ground of appeal was another ground raised at the hearing of an alleged failure to address a primary submissions made on behalf of one of the parties. Mr Griffiths argued that the Tribunal did not address Mr Hillard’s submission that there was no evidence in relation to financial circumstances. He maintains that this failure constitutes an error of law. The submission in question appears at p 137 of the transcript of the Tribunal proceedings:

Most importantly we would submit that there is no basis on which the Tribunal can conclude that the financial circumstances of the company prevent implementation of accessible transport on these three routes. In considering unjustifiable hardship under section 49C the Tribunal is under a obligation to take into account the respondent’s financial circumstances, but you can’t do that because the respondent has told you nothing of its financial circumstances. It has offered no evidence about its profit margin, no evidence about its financial circumstances whatsoever.

53 Mr Griffiths relied on Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 per Jenkinson J at 276 in support of this argument:

Not every failure by the Administrative Appeals Tribunal to mention a contention advanced on behalf of a party will amount to a failure to comply with the requirements of s.43(2) of the Administrative Appeals Tribunal Act 1975, or demonstrate that the contention was not considered in deciding the matter before the Tribunal. But this submission concerning the ascertainment of profit was worthy of serious consideration and was seriously advanced to the Tribunal. It ought therefore to be inferred that the submission was inadvertently overlooked by the Tribunal either when the reference was being decided or when the reasons for the decision were being committed to writing. (Cf. Sullivan v. Department of Transport (1978) 20 ALR 323 at 353.) In either event there has been in my opinion an error of law by the Tribunal, so that the power of this court which s.44(1) of the Administrative Appeals Tribunal Act 1975 confers to decide the appeal "on a question of law" is available. The failure of the Tribunal to carry out the duty to consider and determine each question of law and fact relevant to the determination of the reference to it of the respondent's decision, or the failure to carry out the duty imposed by s.43(2) of that Act, as the case may be, has brought about a miscarriage of justice by preventing this court from affording the parties a determination whether the Tribunal's decision was vitiated by error of law: see Pettitt v. Dunkley (1971) 1 NSWLR 376.

54 Section 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provides that subject to certain other provisions, the AAT is required to give written or oral reasons for its decision. As Jenkinson J pointed out in the passage set out above, not every failure by a Tribunal to mention a contention advanced on behalf of a party will amount to an error of law. In the present case, the failure of the Tribunal to refer to Mr Hillard’s submission did not lead to a miscarriage of justice because the Appeal Panel has rejected the substance of that submission.

Defence of unjustifiable hardship

55 Mr Griffiths, counsel for Mr Moxon, submitted as part of his second ground of appeal, that the Tribunal erred in law by not taking into account at least one of the matters set out in paragraph (c) of s 49C of the ADA, namely “the financial circumstances” of Westbus. He submitted that s 49C specifically requires the Tribunal to take that information into account in determining what constitutes unjustifiable hardship.

56 Before examining this submission, we believe that s 49C(c) is grammatically incorrect. To make it grammatically correct, the word “of” should be inserted after the word “circumstances”, so that section 49C would read, in part, “. . . all relevant circumstances of the particular case are to be taken into account including the financial circumstances of, and the estimated amount of expenditure required to be made by, the person claiming unjustifiable hardship." We are satisfied that this is the intended meaning of that section.

57 Mr Griffiths submitted that the words “are to be taken into account” in s 49C mean that those circumstances must be taken into account in every case. He quoted The Queen v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 9 in support of that proposition. In that case the High Court was interpreting the words “have regard to” in s 50(3) and s 50(4) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

58 We find that words “are to be taken into account” in s 49C have the same meaning as the words “shall have regard to.” (See Tobacco Institute of Australia Ltd & Ors v National Health & Medical Research Council & Ors (1996) 71 FCR 265 where Finn J, equated the phrase “have regard to” with the phrase “take into account”.) Consequently, the following observations of Gibbs CJ in The Queen v Toohey; Ex parte Meneling Station Pty Ltd are relevant to the interpretation of s 49C of the ADA:

When the section directs the Commissioner to "have regard to" the strength or otherwise of the traditional attachment by the claimants to the land claimed (sub-s. 3), and to the principles set out in sub-s. 4, it requires him to take those matters into account and to give weight to them as a fundamental element in making his recommendation.

59 This principle has been developed in subsequent cases, including Department of Defence v Jodette Margaret Fox [1997] 3 FCA (14 January 1997). In that case O'Loughlin J agreed with the comment made by Gibbs CJ set out above in The Queen v Toohey; Ex parte Meneling Station Pty Ltd and went on to find that a body charged with “having regard to” certain factors would not comply with its statutory obligations if the “regard” was not “adequate” or “sufficient”. His Honour said that:

. . . whether the listed subject matters are or are not exhaustive, they are matters to which regard must be had by the rehabilitation authority and it is essential, to adapt the words of Gibbs CJ in The Queen v Toohey: Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333, "to give weight to them as a fundamental element" in making a determination. In my opinion it follows that there would be a failure to "have regard" to nominated matters if the regard was not "adequate" or not "sufficient". The rehabilitation authority would not comply with its statutory obligation if it merely had "token" regard or "nominal" regard to those matters. In my opinion, the AAT did not apply a wrong test in its interpretation of sub-s 37(3).

60 While O’Loughlin J’s specific findings are not binding on this Tribunal, they are consistent with the principle enunciated by Gibbs CJ in The Queen v Toohey; Ex parte Meneling Station Pty Ltd and we are of the view that they are correct.

61 In accordance with the High Court’s view in Meneling the factors listed in s 49C must be given weight as fundamental elements in the decision making process. Furthermore, as O’Loughlin J reasoned in Department of Defence v Jodette Margaret Fox, a court or Tribunal would not be complying with its statutory obligation if it merely took those matters into account in a "token" or "nominal" fashion.

62 It remains to be determined whether the Tribunal in this case complied with the statutory duty imposed by s 49C. There are several passages in the decision which refer to evidence about the estimated amount of expenditure required to be made by Westbus to avoid any breach of the ADA. These include such matters as the cost of wheel chair accessible buses [16]; the “possibility and desirability” of buying new high floor buses fitted with lifts/hoists compared with retrofitting the same equipment on existing high floor vehicles [33]; and the cost of fitting hoists compared with the cost of retrofitting [39]. Other factors are listed at [33] including “the limitations of retrofit and the time and cost to carry out modifications”, “the resale value of an old bus and what markets exist for accessible/non-accessible second hand buses” and “the investment by the Respondent in training drivers in the use of equipment.”

63 Another comment which could be construed as a reference to Westbus’ financial circumstances is at paragraph 69:

The Tribunal has considered the effect on the Respondent’s business of the Respondent being required to make each of the buses that run on Routes 600, 606 and 607 accessible to persons in wheel chairs.

64 Following this statement, the Tribunal refers to the evidence about the costs of fitting hoists and notes at paragraph 73 that:

The purchase of new equipment versus retrofitting existing buses and the loss of resale value due to selling the existing buses before their useful life is reached are variations on the general cost theme of lifts/hoists in the context of the Respondent’s operations.

65 The Tribunal concludes at [80] that:

Taking into account all of the matters set out in the evidence, the exhibits and submissions, the Tribunal is of the view especially having regard to the requirements of 49C the Respondent has proved on the balance of probabilities that “unjustifiable hardship” would occur to it in the provision of the access to its buses sought by the Complainant.

66 Applying the test in Meneling, we cannot be satisfied that the Tribunal did not give the financial circumstances of Westbus “weight as fundamental elements in the decision making process.” We do not know, on the basis of the Tribunal’s reasons, what weight, if any, they gave to those circumstances. Their reasons are not adequate for the Appeal Panel to come to a conclusion on that question. This finding leads us to reject the complainant’s ground of appeal that the Tribunal made an error of law by not giving weight to Westbus’s financial circumstances. However, it leads us to consider another ground of appeal, namely inadequacy of reasons. Before doing so, we will address the complainant’s submissions in relation to s 49C(a) and (b).

67 Grounds 3 and 4 of Mr Moxon’s grounds of appeal were that the Tribunal erred in law by not taking into account the matters set out in s 49C(a) and (b). The test to be applied is the same as that applied above in relation to “financial circumstances” that is, whether the Tribunal gave weight as fundamental elements in the decision making process, to the factors listed in s 49C(a) and (b). If the Tribunal merely took those matters into account in a "token" or "nominal" fashion, it will have made an error of law.

68 Both parties agreed that evidence of the matters in s 49C(a) and (b) was before the Tribunal and was not challenged. Mr Griffiths went on to submit that it was mandatory for the Tribunal to take those matters into account. The only indication that we can identify which suggests that the Tribunal did take these matters into account appears at [75] and [80] of the decision:

75 The Tribunal has carefully considered all the submissions of each party and all the exhibits.

80 Taking into account all of the matters set out in the evidence, the exhibits and submissions, the Tribunal is of the view especially having regard to the requirements of s 49C the Respondent has proved on the balance of probabilities that “unjustifiable hardship” would occur to it in the provision of the access to its buses sought by the Complainant.

69 It is unclear to us, from these passages, 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.

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. This leads us to a consideration of whether or not the Tribunal made an error of law by failing to provide adequate reasons for its decision.

Inadequacy of reasons

71 The complainant’s seventh ground of appeal was that the Tribunal erred in law because the reasons for decision do not constitute proper or sufficient reasons as required by s 89 of the ADT Act. That section states that:

(1) If the Tribunal makes an original decision or determines an application for the review of a reviewable decision, the Tribunal is to cause a copy of its decision to be served on each party to the proceedings for the decision.
(2) The Tribunal may give reasons either orally or in writing for its decision.
(3) If the Tribunal does not give reasons in writing for its decision:
(a) a party to the proceedings may, within 28 days after the day on which a copy of the decision of the Tribunal is served on that party, request the Tribunal to give the party a statement in writing of the reasons of the Tribunal for its decision, and
(b) the Tribunal must, within 28 days after receiving the request, give the party such a statement.
(4) For the purposes of compliance with subsection (3), it is sufficient if the Tribunal gives the party a copy of a transcript of oral reasons previously delivered that complies with subsection (5).
(5) If the Tribunal gives the reasons for its decision in writing under subsection (3), the written reasons are to set out the following:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the Tribunal's understanding of the applicable law,
(c) the reasoning processes that lead the Tribunal to the conclusions it made.

72 The effect of this section is that, while the Tribunal must provide each party with its decision, it is not obliged to provide oral or written reasons. If the Tribunal does not provide written reasons, a party may require the Tribunal to provide written reasons within 28 days. Those reasons can comprise the transcript of the oral reasons. When written reasons are requested by a party those reasons must set out the Tribunal’s findings on material questions of fact, the Tribunal’s understanding of the law and its reasoning process.

73 Ms Ronalds’ argument in relation to this provision was that since written reasons were provided voluntarily by the Tribunal, the requirements in s 89(5) do not apply. Mr Griffiths’ response was that section 89(5) should not be read literally because a literal reading would mean that the Tribunal is under a statutory obligation to reveal their reasoning processes where the parties request written reasons but not where those reasons are provided voluntarily.

74 Although we cannot see any policy justification for having different requirements for written reasons depending on whether they are given voluntarily or on request, the provision is unambiguous and must be given its plain meaning. Consequently there is no statutory obligation on the Tribunal to comply with the requirements of s 89(5) if written reasons are provided voluntarily, as they were in this case.

75 If there is no statutory requirement to provide adequate reasons, is there nevertheless a requirement at common law to do so? If so, does a failure to do so amount to an error of law?

76 In Absolon v NSW TAFE [1999] NSWCA 311 (30 August 1999) the Court of Appeal considered a submission by Ms Absolon that the Equal Opportunity Tribunal (which is now a Division of the ADT) erred in law by not providing adequate reasons. Powell JA said that:

66 Although there is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions (see, for example, Public Service Board of New South Wales v. Osmond (1985-1986) 159 CLR 656, 662 per Gibbs CJ), it seems to be accepted that, at least in relation to administrative tribunals which, by the statutes creating them, are required to give reasons for their decisions, it is appropriate to apply the rules - and, in particular, the rules relating to the giving of reasons - which are ordinarily to be regarded as an incident of the judicial process. However, as Mahoney JA (as he then was) said in Soulemezis v. Dudley (Holdings) Pty. Limited (1987) 10 NSWLR 247, 273:
"There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if - to adopt the formula used in a different part of the law: see R. v. Associated Northern Collieries (1910) 11 CLR 738 at 740 - by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.

To require that a judge detail the way in which he has reasoned step by step to his conclusion is, in my opinion, to mistake the nature of the judicial process."

67 It should, however, be noted that an error of law in giving no, or in giving inadequate, reasons for judgment differs from an error of law in coming to a verdict or decision, for the latter directly vitiates the verdict or decision, either, in the sense that the verdict or decision thereby is legally wrong and reversible, or, in the sense that the verdict or decision is based on an error in the legal process so that a new trial is attracted. A failure to give any, or any adequate, reasons does not, without more, establish that the verdict or decision involved some error although there may be cases - of which it is submitted here that the present is one - which warrant the inference that the relevant Tribunal has failed in some respect to exercise its powers according to law (see, for example, Repatriation Commission v. O'Brien ( 1984-1985) 155 CLR 422, 445-446 per Brennan J (as he then was)).

68 As the decision of the Tribunal extends to some 30 pages, in the course of which the Tribunal dealt to a greater or lesser extent with the material relating to each of the Appellant's complaints as to discrimination, and dealt, in what might be called a more compendious way, with the various complaints of victimisation, this case at first instance ought to have been, and this appeal should be, dismissed unless it can be said, first, that the reasons given by the Tribunal were inadequate, and, second, that that inadequacy warrants the inference that the Tribunal has not exercised its jurisdiction in accordance with law.

77 Absolon’s case considered s 117 of the ADA (now repealed) which stated that:

Where the Tribunal does not state its reasons for any decision or order made in relation to an inquiry, a party to the inquiry may, by notice in writing served on the Tribunal within 7 days after the date of that decision or order, require the Tribunal to state its reasons.

78 Section 117 is equivalent to s 89(2) and (3). Both sections give the Tribunal a discretion to provide reasons but allow a party to require written reasons where they are not provided voluntarily. Consequently, the decision in Absolon is indistinguishable from the present case and is binding on the Appeal Panel. Absolon is authority for the proposition that inadequacy of reasons can lead to an error of law even where the decision under appeal is not subject to requirements, such as those found in s 89(5), to set out findings of fact, applicable law and the reasoning process.

79 Repatriation Commission v Norman Kenneth Boyle [1997] 1269 FCA (24 November 1997) can be distinguished from the present case because it involved the interpretation of s 43(2) and s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). Section 43(2B) of that Act is worded in a similar way to s 89(5) of the ADT Act. As s 89(5) does not apply to the Tribunal’s decision in this case, we should not follow the conclusions in Repatriation Commission v Norman Kenneth Boyle in preference to those set out in Absolon.

80 The decision in Absolon was applied by the Supreme Court in Haswell v Department of School Education [1999] NSWSC 1271. At [24] Hidden J said that:

I can well understand that the plaintiff expected more detailed reasons for the decision. However, I am far from persuaded that full reasons might have led to a different conclusion. Certainly, the decision is not so inadequate as to give rise to the inference that the Tribunal did not exercise its jurisdiction according to law.

81 We are satisfied that the first part of the test laid down by Powell J in Absolon is made out, that is that the reasons given by the Tribunal are inadequate. The reasons given, as outlined above, do not provide an adequate explanation for the conclusions reached. The Appeal Panel cannot glean from those reasons the extent to which each element of s 49C was taken into account, nor the way in which those elements were balanced.

82 In relation to the second part of the test laid down in Absolon (that the inadequacy warrants the inference that the Tribunal has not exercised its jurisdiction in accordance with law) Mr Griffiths argued, contrary to Ms Ronalds’ submission, that it does not matter whether or not this error would have led to a different outcome. Despite the comments of Hidden J in Haswell v Department of School Education [1999] NSWSC 1271, Powell J’s articulation of the test does not necessarily require a finding that but for the error, the Tribunal would have come to a different conclusion. This conclusion is supported by Powell J’s quote from Brennan J in Repatriation Commission v O'Brien (1985) 155 CLR 422, at 445-446 when setting down the test in Absolon. In O’Brien’s case, Brennan J said that:

". . . a failure by a Tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the Tribunal has failed in some respect to exercise its power according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law . . .

83 In our view, the circumstances of this case are precisely the same as those outlined by Brennan J in Repatriation Commission v O'Brien and adopted by Powell J in Absolon. The Tribunal in this case did not explain their reasoning adequately. Their failure to do so does not justify a conclusion, on the face of the decision, that they did not give fundamental weight to each of the matters listed in 49C. However the lack of specific reference to those factors and the failure in the decision to engage in any balancing process, warrants an inference that it did not adequately consider those factors or engage in the necessary balancing process. Whether or not those errors would have led to a different outcome cannot be known until the merits of the case are re-considered.

84 For these reasons, we have decided that the seventh ground of appeal has been made out and that the Tribunal’s decision as it relates to the defence in s 49M(2) should be set aside. This matter should be remitted to be heard and decided again by the Tribunal as originally or similarly constituted, in accordance with the directions of the Appeal Panel.

Alleged errors relating to relief

85 The fifth and sixth grounds of appeal relate to relief. The fifth ground is that the Tribunal erred in law by finding that the complainant failed to state the preferred relief he was seeking. The sixth ground is that the Tribunal erred in law by stating that it could not select an outcome to provide relief to the complainant from a range of options available.

86 In relation to these grounds appeal, the Tribunal stated at paragraph 77 of its decision that:

The Applicant has told the Tribunal that there were a number of options open to the Tribunal to provide relief for the Applicant and that it was a matter for the Tribunal to select the option rather than for the Applicant to state his preferred option. The Tribunal does not accept this submission.

87 In relation to this ground, Ms Ronalds submitted that as this comment is not part of the consideration of unjustifiable hardship it does not affect the outcome of the decision and is immaterial to the appeal. While we accept this submission, it is useful for the Appeal Panel to deal with this ground of appeal so that the Tribunal can act in accordance with the Appeal Panel’s directions.

88 Section 113 of the ADA allows the Tribunal to order a range of remedies.

(1) After holding an inquiry, the Tribunal may:
(a) dismiss the complaint the subject of that inquiry, or
(b) find the complaint substantiated and do any one or more of the following:
(i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,
(ii) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,
(iii) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant.

89 If, after reconsidering this matter, the Tribunal finds in favour of Mr Moxon, it could award damages, make an order preventing Westbus from continuing to act unlawfully and order Westbus to perform any reasonable act to redress any loss or damage. It is not up to either the complainant or the Tribunal to identify or make orders about how a respondent should conduct its business in the future, except to say that it should not be conducted in a way which is unlawful under the ADA.

90 In considering the defence of unjustifiable hardship, a Tribunal must consider the options for avoiding unlawful conduct. It is clear from paragraph 70 of the decision that the Tribunal at first instance identified two ways in which the routes could be made accessible, namely fitting the existing buses with hoists or lifts or disposing of the buses and purchasing new buses already fitted with hoists or lifts. In reconsidering this matter, the Tribunal must make a determination as to whether there is an option which would not cause unjustifiable hardship. If there is, then the Tribunal would make an order preventing the respondent from engaging in unlawful conduct. It does not have the power to order the respondent to adopt a particular option.

91 The Tribunal may also prescribe a period for the respondent to comply with such an order. In many cases it will not be possible for a respondent to discontinue unlawful conduct immediately and a reasonable time period should be allowed for that purpose.

92 Mr Moxon maintains that the relief he sought was set out in the Points of Claim and in the course of the proceedings. The relief requested in the Points of Claim at paragraphs 9(a) and (c) was:

That the respondent ensures that its public transport services on Route 600, Route 606 and Route 607 are made accessible to the Complainant within six months of the Tribunal’s judgment.

Such other Orders as the Tribunal sees fit.

93 There is nothing in the ADA (for example in s 88 which relates to the making of complaints) which obliges a complainant to specify precisely the relief sought. It is up to the Tribunal to determine the relief.

94 Incidentally, the relief sought by the complainant is not within the Tribunal’s power to order. In Waters v Public Transport Corporation 1991 EOC 92-390 Brennan J noted that the order of the Anti-Discrimination Board of Victoria to "refrain from implementing the driver-only tram proposal" was open to objection because it did not “restrain specific conduct which might have been found to amount to the refusal of a service or the imposition of a requirement or condition.” Brennan J went on to say that:

. . . more significantly, it purports to order the Corporation to maintain a level of staffing for its trams as the means of maintaining the services needed by disabled people. I find no basis in the Act for an order compelling the performer of a service to retain or employ staff to maintain the level of service previously provided.(at 78,604)

95 These comments apply equally to the situation under the ADA. Westbus may decide to comply with an order preventing any further unlawful discrimination by not running buses on those particular routes until the impediments to the roadway are addressed or it might decide to develop new, accessible bus routes. In either case it would not be engaging in unlawful conduct.

Costs

96 Westbus reserved its right to make submissions on costs if the appeal was dismissed. As the appeal has not been dismissed, we make no order as to costs.

Orders

1. The appeal is upheld.
2. The decision of the Tribunal made on 21 September 1999, that Westbus has made out the defence of unjustifiable hardship under s 49M(2) of the ADA, is set aside.
3. This aspect of the case is remitted to be heard and decided again by the Tribunal as originally or similarly constituted.
4. No order as to costs .