Short v Transport for NSW

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Short v Transport for NSW [2021] NSWCATAD 367

Hearing dates:

3 May 2021

Date of orders:

10 December 2021

Decision date:

10 December 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member
Prof. J Goodman-Delahunty, General Member

Decision:

The application is dismissed.

Catchwords:

HUMAN RIGHTS – anti-discrimination - definition of ‘services’ – age discrimination – disability related discrimination – government functions – statutory duty

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

New South Wales Civil and Administrative Tribunal Act 2013 (NSW)

Roads Act 1993 (NSW)

Transport Administration Act (NSW) 1988

Cases Cited:

IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1

Rainsford v Victoria (2007) FCA 1059

State of New South Wales v Whiteoak (2014) NSWCATAP 99

Wright v Commissioner of Police [2014] NSWCATAP 67

Texts Cited:

Macquarie Dictionary (Online Ed)

Category:

Principal judgment

Parties:

Graham Short and Ann Short (Applicants)

Transport for NSW (Respondent)

Representation:

Graham Short and Ann Short (In person)

Ms J Seymour (Counsel for the Respondent)

File Number(s):

2020/321549

Publication restriction:

None

REASONS FOR DECISION

1. In this matter the applicants, Mr Graham and Mrs Ann Short (the ‘applicants’), allege the respondent, Transport for NSW (the ‘respondent’), discriminated against them on the grounds of age and disability in the area of goods and services, namely the removal of median strips at two pedestrian crossings in Cremorne, in contravention of ss49M and 49ZYN of the Anti-Discrimination Act 1977 (NSW) (ADA).

2. The respondent denies that it provided services to the applicants within the meaning of ss 49M and 49ZYN of the ADA. It further submits that if the Tribunal finds that the respondent provided a service, the applicants have not been subjected to either direct or indirect discrimination in terms of ss 49B and 49ZYA of the ADA.

3. The parties agreed at the commencement of the hearing that the applicants’ claim is one of indirect discrimination.

Background to the Claim

4. On 30 April 2020, the applicants made a complaint to the President of the then Anti-Discrimination Board of New South Wales (now Anti-Discrimination New South Wales) against the respondent (‘the complaint’). The complaint was accepted by the President on 15 May 2020 pursuant to s89B of the ADA.

5. The complaint primarily concerns the removal of median strips at two pedestrian crossings on Military Road at Cremorne, at Cabramatta Road and Spofforth Street. The applicants allege that the removal of the median strips constitutes discrimination against aged and disabled pedestrians who are unable to cross a ‘4-lane road’ in the allocated time. The respondent disputes the two median strips were removed, rather only one was removed from one pedestrian crossing where the tidal flow was installed at Cabramatta Road (‘Cabramatta Road pedestrian crossing’). No changes were made at Spofforth Street.

6. In a response to the complaint the respondent on 30 July 2020, said the tidal flow installation on Military Road was the exercise of a statutory function and does not constitute a…