Perrett-Abrahams v Qantas Airways Limited

[2000] VSC 504

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 6854 of 2000

DIANNE PERRETT-ABRAHAMS	Plaintiff
v.
QANTAS AIRWAYS LIMITED	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 NOVEMBER 2000
DATE OF JUDGMENT:	27 NOVEMBER 2000
CASE MAY BE CITED AS:	PERRETT-ABRAHAMS v. QANTAS AIRWAYS LIMITED
MEDIUM NEUTRAL CITATION:	[2000] VSC 504

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CATCHWORDS:      Application for leave to appeal out of time and for leave to appeal from decision of Victorian Civil Administrative Tribunal – No arguable error of law on part of Tribunal – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms. M. Young	Holding Redlich
For the Defendant	Miss J. Oakley	Minter Ellison

HIS HONOUR:

1. I have before me an application for an extension of time within which the plaintiff may file an application in court seeking leave to appeal against orders of the Victorian Civil Administrative Tribunal made on 16 August 2000 and if that application is successful, an application for leave to appeal against the orders.

1. I have heard the two applications together because if the plaintiff is unable to satisfy me that it is arguable that in arriving at the decision it did, the Tribunal made an error of law, then it would be pointless to extend the time for making an application for leave to appeal.  Having said that, I should say that the circumstances in this case relating to the late filing of the plaintiff's originating motion are such, that if the application for leave to appeal out of time was the only application I was required to deal with, I would have no hesitation in granting it.  I say that because in my view there was no justification for the member of the prothonotary's staff in question refusing to accept the originating motion when it was first presented for filing which of course was then within time.

1. I turn then to the substance of the matter.  The plaintiff complained to the Tribunal that Qantas had directly and indirectly discriminated against her on some three occasions because of the disability she had to her left leg which means she cannot bend her left knee.  Basically what the plaintiff alleged was that on the occasions that she book economy flights with Qantas she informed the staff of Qantas of her disability but that they refused to pre-allocate to her a bulkhead seat.  Her  complaint is set out in the Tribunal's proceedings: 

"I believe I have been indirectly discriminated against by QANTAS on the basis of my disability in relation to their policy of not allocating seating until shortly before a flight.

.I am unable to comply with QANTAS's seating allocation procedure as my disability requires me to be given a bulkhead seat.

.those without these disability are able to comply with this procedure as the type of seating allocated doesn't determine whether they will be able to travel. 

.this procedure is unreasonable because I believe that QANTAS can meet my needs by ensuring I have a bulkhead seat booking that is confirmed prior to presenting at the airport."

1. Following a hearing which extended over five days, the Tribunal found the plaintiff's complaints of direct and indirect discrimination not proved and ordered that they be dismissed.

1. Normally it is unwise for a judge of the court to give reasons for granting or refusing leave to appeal.  The reasons for not doing so were stated by Fullagar, J. in Leighton Contractors Pty Ltd v. Kilpatrick Green Pty Ltd (1992) 2 V.R. 505. At page 514 His Honour said:

"I have spoken above of a yielding to temptation, and it is of course a natural and instinctive wish of judges to give reasons for their decisions, so that their decisions may be seen to be the rational dictate of the law rather than the result of their own individual opinions or prejudices.  But in this particular field, paradoxically, the giving of reasons may be seen to be decidedly inimical, in the long run, to the doing of justice between the parties, and especially so in modern times when every utterance of a judge is likely to be reported, or misreported in some book or self-styled law report.  If reasons are given, they will be seized upon as the laying down and application of a principle, rather than merely the application, to all the circumstances of the individual case, of a wide judicial discretion.

After the first half dozen reported decisions the discretion will begin to take on limitations and boundaries, and in the end there will be no discretion but only a complicated set of hard and fast rules of law manufactured entirely by the judiciary, although with the assistance of the reporters and commentators.  Compare Mallet v. Mallet (1984) 156 CLR 605 at pp.608-609, per Gibbs CJ."

1. In Antaios Compania Naviera S.A. V Salen Rederierna A.B. (The Antaios) [1985] 1 AC 191 Lord Diplock, with whom the other Law Lords agreed, re-affirmed the guidelines given in The Nema, but he also added that a judge should not give reasons for granting or refusing leave to appeal from the arbitrator to the court, and with this addendum I would respectfully agree for reasons adumbrated above, although the addendum itself cannot be viewed as binding.  I understand that it has been the general practice in Victoria not to give reasons for refusing leave to appeal, but if this is not the general practice then it ought to be:  See e.g. Karenlee [1988] VR 614 at p.620. It is, I think, the more usual practice of our Full Court itself not to give reasons for refusing leave to appeal to this court, and in the past it certainly used to be the more general practice of the High Court not to give reasons for refusing special leave to appeal to the High Court.

1. Of course there may be cases in which it is appropriate for the Court to give reasons for granting leave to appeal, for example where a Judge directs that the appeal be heard instanter and allowed. In such cases it is appropriate for the Judge to state his reasons for granting leave as well as those for allowing the appeal. See for example Beneys and Another v. Delafotis and Another (No. 1) (1996) 2 V.R. 695.

1. But that of course is not the situation in the present case. 

1. I have read the reasons of the Tribunal for its decision in the matter.  They are quite detailed, extending, as they do, over some 29 typed pages.

1. Having considered those reasons, I am not persuaded that it is arguable that the Tribunal made any error of law in arriving at the decision it did.  It would seem to me that the matters relied upon by the plaintiff in support of her application for leave to appeal, relate to findings of fact made by the Tribunal.  In my opinion, those findings of fact were open to the Tribunal and it cannot be said that in making them, the Tribunal made any error of law in the matter.

1. The application and the originating motion will be dismissed with costs to be taxed, including any reserved costs and paid by the plaintiff.

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