van Royden v The State of NSW (Transport for NSW)

[2019] NSWCATAD 262

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	van Royden v The State of NSW (Transport for NSW) [2019] NSWCATAD 262
Hearing dates:	15 October 2019
Date of orders:	17 December 2019
Decision date:	17 December 2019
Before:	A Scahill, Senior Member
Decision:	(1) Leave for Mr van Royden to proceed with his complaint under section 96 of the ADA is refused (2)   The application for leave is dismissed.
Catchwords:	ANTI-DISCRIMINATION – application for leave to proceed with complaint - complaint of disability discrimination in the provision of goods and services – whether fair or just to grant leave Anti-Discrimination Act 1977
Legislation Cited:	Anti-Discrimination Act 1977 Transport Administration Act 1988
Cases Cited:	Carroll v Department of Family and Community Services [2015] NSWCATAD 82 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCCA 388 Waters v Public Transport Corporation (1991) 173 CLR 349
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	Rodney van Royden (Applicant) The State of NSW (Transport for NSW) (Respondent)
Representation:	Applicant (Self represented) Respondent (Self represented)
File Number(s):	2019/00270885
Publication restriction:	Nil

REASONS FOR DECISION

1. This is an application by Mr Rodney van Royden for leave for a complaint of disability discrimination in the provision of goods and services by the Respondent to go ahead.

2. The complaint was declined by the President of the Anti-Discrimination Board (ADB) by letter dated 13 August 2019. In those circumstances leave is required under s 96 of the Anti-Discrimination Act 1977 (NSW) for the applicant to proceed with his complaint in the Tribunal.

The President of ADB’s reasons for declining complaint

3. In the letter of 13 August 2019, the President declined the complaint because the President was satisfied that the complaint was lacking in substance. The reasons for the declination were:

“Having considered all the information provided to ADNSW by the parties, I have concluded that there is insufficient information to support the complainant’s contention that he was discriminated against on the provision of goods and services on the basis of his disability.

Principles for Granting Leave

4. The Supreme Court in the case of Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143, has set out principles on which leave should be granted. In that case, Acting Justice Schmidt said:

"Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which include precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates."

5. When deciding whether to grant leave the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the Anti-Discrimination Act including that the complaint lacks substance or that the nature of the conduct is such that further action is not required: Jones v Ekermawi [2009] NSWCCA 388 at [60].

6. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. While it is not the Tribunal's role when determining a leave application to decide whether the complaint has been substantiated, the merits of the complaint are relevant.

Factual basis of complaint

7. The factual basis of this complaint is set out in 2 letters to the ADB from the Applicant received on 21 May and 4 June 2019.

8. The President of the ADB accepted the complaint and investigated events alleged to have occurred between 18 May and 21 May 2019.

9. In summary Mr van Royden’s complaint alleges that :

• He has a brain injury.

• He has relocated to Sydney from Perth and relies on public transport.

• He is forced to use an Opal card.

• His Opal card has been charged incorrectly.

• The helpline is no help and the website is difficult to use.

• The Opal system and refusal of phone operators to help and their demand that he use the website, limits him as he does not have the hand eye coordination to quickly tag on/tag off and get off on the right spot.

• It is difficult to use buses as they do not announce their next stop.

• Surly bus drivers rush passengers like him off the bus or drive past stops. People like him do not have time to swipe on/ off or collect all their belongings.

• He is forced to use Opal cards or in the alternative he cannot travel on public transport.

10. At the hearing Mr van Royden told the Tribunal that he relies on public transport in order to get around Sydney. He thought that the system was challenging for people like him. Mr van Royden told the Tribunal that his complaint was alleging indirect discrimination as the system limited his ability to be a functioning member of the community. He wished to bring about change in the system so that people like him could use it more easily. He thought that there were modifications which could be made which were not at great expense to the Respondent. Mr van Royden told the Tribunal that the information provided at the hearing by the Respondent such as helpful websites was excellent. This information had not been provided to him at any other stage. Neither the bus drivers nor the call centre operators had explained any of the matters put by the Respondent at the hearing. He did not think that it would cause the Respondent unjustifiable hardship to make some modifications and improvements to the system. The Respondent could improve training and awareness of people’s disabilities and their needs. Using the systems, staff should be able to redirect callers to the resources that had been nominated by the Respondent at the hearing. He thought it would be useful if there was an app that he could use to assist him to use the system and to communicate problems. He told the Tribunal that it was fair and just for him to be granted leave to proceed as this matter would assist people like himself. There are a class of people who are limited in the way they can use the public transport system. If his complaint were dismissed there may be others who don’t have the opportunity to speak up as he has. He thought that there was a public benefit in allowing the complaint to proceed.

The Respondent’s case

11. The Respondent denied that it had discriminated against Mr van Royden on the ground of his disability. It was not fair and just in the circumstances for the Tribunal to grant leave for the complaint to proceed in the Tribunal.

12. In its response to the ADB, the Respondent made the following points.

13. The Respondent stated that Mr van Royden had been charged correctly in all instances raised in his complaint. On one of his journeys, Mr van Royden was charged a higher fare because the Opal system did not record a tap off. Where this occurs, however a person can generally contact the call centre and request an adjustment to their Opal account.

14. The Respondent had worked with disability advocacy groups in developing its customer service operations, including its digital and call centre services.

15. While disability awareness training had been introduced and undertaken by all call centre operators, customers need to notify staff if they require additional assistance. Mr van Royden did not do this until his matter had escalated to a manager.

16. Software limitations impact upon how call centre operators can assist customers. For example, call centre operators cannot send emails to callers as requested by Mr van Royden.

17. The requirement to use an Opal card for the payment of public transport fares does not amount to discrimination. Transport for New South Wales has a statutory function under the Transport Administration Act 1988 for the provision of integrated ticketing arrangements for transport services, regulating the types of tickets and other ticketing arrangements for the setting of fares for transport services.

18. The Opal card system uses visual symbols (on display screens) and distinctive audio tones to help users understand whether they have successfully tapped on and off.

19. The Respondent funds the “First stop transport travel training program” which is a free service available to help users who require assistance to develop the skills to use public transport.

Submissions of the Respondent at the hearing.

20. The Respondent told the Tribunal that there had been extensive consultation with disability groups prior to the rollout of the Opal program in 2012. The Respondent was committed to fair and equitable systems. It provides discounted travel for people with disabilities. There are apps that assist with identifying bus stops to which Mr van Royden could be referred. Unfortunately, there is no coordination of lost property across the system and it is necessary for a person who has lost property in the system to contact the terminus for the area. There is no ability for a call centre operator to email information to a caller.

21. In relation to allegations of overcharging, the Respondent understood that Mr van Royden’s fares had now been corrected. The Respondent also noted that there are some private operators who are not part of the pricing system - such as private ferry operators - who do not give discounts. The Respondent has a disability access plan. There is an application called “first stop” which is free of charge which would assist people such as Mr van Royden to use the system. The Respondent was also committed to continuous improvement. There would be costs in implementing some of the changes Mr van Royden was suggesting. However, the Respondent was satisfied that there was nothing in the complaint which demonstrated disability discrimination on its part.

Merit of the complaint

22. When assessing the merits of the complaint the legislative provisions must be examined. The allegation is that the Respondent breached the sections of the Act relating to disability discrimination in the provision of goods and services. The Tribunal understands that the complaint is a complaint of indirect disability discrimination. The relevant provisions of the Anti-Discrimination Act 1977 are set out below.

23. The definition of disability is set out in section 4:

"disability" means--

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

What does the complainant need to prove?

24. In order to make out the complaint at a hearing the applicant would have to prove a number of elements.

That he has a disability.

25. Mr van Royden told the Tribunal, and it was not contested, that he had suffered a brain injury after surgery to remove a brain tumour. The Tribunal is satisfied that at a substantive hearing of this matter a Tribunal could find that Mr van Royden’s disability is described in subsections a); c); d) or e).

What constitutes discrimination on the ground of disability

26. Section 49 B sets out both direct discrimination - section 49(1)(a) and indirect discrimination – section 49(1)(b).

Section 49B

1. A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of disability if the perpetrator--

1. on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

2. 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 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.

27. The Tribunal understands that Mr van Royden’s complaint is one of indirect discrimination.

28. The significant aspects for Mr van Royden were

29. the requirement to use the Opal Card system to use public transport in NSW;

30. the fact that buses within the NSW Transport system do not announce next stop; and

31. the difficulty for people with disabilities in using the complaint system.

49M Provision of goods and services

32. (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--

1. (a) by refusing to provide the person with those goods or services, or

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

33. (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.

Analysis of the complaint

34. There is no dispute that Mr van Royden has a disability. There was no dispute that the Respondent was providing services to Mr van Royden in the form of transport. The Tribunal accepts for the purposes of these interlocutory proceedings that the complaint system is an aspect of the provision of services.

Complaint concerning requirement to use the Opal system

35. The Tribunal notes that aspects of Mr van Royden’s case echo complaints of disability discrimination in the provision of goods and services – public transport -- ultimately considered by the High Court of Australia in the matter of Waters v Public Transport Corporation (1991) 173 CLR 349. In that matter a coalition of public transport users brought a complaint concerning the introduction of scratch tickets and conductor less trams in Victoria. The complainant was successful at first instance. After the appeal process the High Court remitted the matter back to the Victorian Board to deal with. In doing so the High Court considered such issues as the necessity to:

• define the service provided and the alleged offending “requirement” with clarity;

• specify the proportion of people without disability able to comply with the requirement; and

• frame and consider the circumstances in which to determine reasonableness.

36. In these circumstances Mr van Royden must show that in order for Mr van Royden to use public transport in NSW, the Respondent required Mr van Royden to comply with the requirement that he must use the Opal card system. This was not contested.

37. Mr van Royden then needs to show that a substantially higher proportion of people who do not have a brain injury are able to use the Opal card system.

38. Mr van Royden then needs to show that the requirement to be able to use the Opal card system is not a reasonable requirement having regard to all the circumstances.

39. Mr van Royden’s complaint set out difficulties he had experienced in using the Opal system. He stated during the hearing that some of these problems had been resolved when using the complaints system. He also considered that an available app may assist him to use the Opal service.

40. Mr van Royden did not provide statistical evidence as to the proportion of people without his disability who were able to use the Opal system; the non-announcement of bus stops or the complaint system.

41. Mr van Royden did not address the issue of why it was unreasonable to require a person with his disabilities to use the Opal system; to use a service with the non-announcement of bus stops or the complaint system.

42. In these respects, the Respondent referred to its consultation with disability groups in developing the Opal system; its use of feedback from the complaint system and its continuous improvement approach. The Respondent referred to an available app which could assist people - both with and without disabilities to use the system.

43. The onus is on the complainant to establish the necessary elements of the indirect discrimination as set out in Waters v Public Transport Corporation (1991) 171 CLR 349.` At this point Mr van Royden has not provided the relevant evidence in bringing his complaint.

44. In these circumstances it is highly unlikely that Mr van Royden could prove his complaint as it stands at hearing.

45. The Respondent claimed that meeting Mr van Royden’s requests would cause the Respondent unjustifiable hardship. The onus is upon the Respondent to do so. The Respondent did not provide evidence about this.

Is it fair and just to grant leave for the complaint to proceed ?

46. The Tribunal must consider whether it is fair and just for the complaint to proceed. The President of the ADB concluded that there was insufficient information to support the complainant’s contention that he was discriminated against in the provision of goods and services on the basis of his disability. The Tribunal considers it highly unlikely the complaint as it stands could succeed at hearing. Mr van Royden argued that it was in the public interest to allow his complaint leave to proceed to assist others with disabilities in using public transport. The Tribunal’s refusal of leave would not prevent others from coming forward with such complaints.

47. In all the circumstances the Tribunal does not consider that it is fair and just to grant leave for the complaint to proceed.

Decision

1. Leave for Mr van Royden to proceed with his complaint under section 96 of the ADA is refused

2. The application for leave is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 17 December 2019